# On an assault weapon ban **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2016, 10:04pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469 "2016-06-15T22:04:12Z")\ **Posts on this page:** 20\ **Page:** 21
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 2:00pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/401 "2016-06-29T14:00:24Z")
> [@asahi](#): > > Yeah, well we’re not proposing so you can stop channeling your inner Alex Jones. Depends on who you mean by “we” > [@](#): > > And somewhere along the way, chief, their interpretation of the 2nd Amendment “right” to keep and bear arms digressed from yours. It is true that you’ve had some favorable rulings the last year thanks to a now-deceased activist justice. But the highest court of the land has, at minimum, been vague and inconsistent on this so-called “right” to possess firearms. They haven’t been comprehensive but they haven’t really been vague. The right to keep arms for the purpose of self defense seems pretty clear. The right to keep a handgun in the home for self defense is equally clear. > [@](#): > > nd in the meantime -just recently in fact - it has upheld the right of states to impose strict regulations on firearms, including the prohibition on some types of firearms, and including restrictions on the carry of concealed weapons – and stiff punishments for those who violate said laws. Ask former NFL star wide receiver Plaxico Burress if you doubt me on this. The supreme court has said no such thing. It has declined to take a position on any of that stuff. As a general matter you can derive no inference from denial of cert. > [@](#): > > No, what we want is for people to stop hiding behind cheap slippery slope arguments and other forms of lazy intellect. Essentially, we ask that gun rights cultists try to stop being binary thinkers, however hard that might prove to be. We’re not. We just think that your so many of your ideas are stupid and retarded that we don’t even bother looking at the rest. If you want compromise, then offer a compromise. BTW, telling you that we won’t deal with you because we don’t trust you is not a slippery slope argument. If the gun control lobby was credible and trustworthy, things would be different but the gun control lobby is about as credible in their claims to only want to stick their nose under the tent as the pro-life lobby is in their claims that requiring hospital grade abortion clinics is for the safety of the patients. The ignorance on the gun control side of the debate does very little to enhance your credibility. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 2:13pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/402 "2016-06-29T14:13:31Z")
[quote=“Bone, post:384, topic:757469”] Again, you’re wrong here on at least two fronts. Let’s itemize them: [LIST=1] [li]SCOTUS has not been inconsistent. Heller and McDonald did not overturn any previous holding. Are you using words in non-standard ways again?[/li][/quote] I think that he is saying that Heller and McDonald is inconsistent with the interpretation that the gun control lobby has adopted of all prior caselaw. But to be fair, while not contrary to any prior caselaw, the self defense element of the second amendment had not been previously expressed by the court. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 2:31pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/403 "2016-06-29T14:31:32Z")
> [@asahi](#): > > Here’s the truth about guns: > > [Australian Gun Stats | Snopes.com](http://www.snopes.com/crime/statistics/ausguns.asp) > > WTF does that have to do with the post you are responding to? > > All you’re doing is pointing to a gun ban as a role model while claiming that no one wants to ban guns. > > We’ve been over the Australia gun ban over and over again. Aside from the huge differences between Australia and The United States (see gun violence in Australia before the gun ban versus the gun violence in America). The gun ban did not measurably reduce the homicide rate below the background rate. You could argue that the higher homicide rate in America would result in greater effects from a gun ban but you would have to ban guns almost entirely to even have a chance of achieving that (something your side keep assuring us they don’t want to do) > > From your cite: > > “The rates of various types of violent crimes (sexual assault, kidnapping, homicides of all types) have scarcely changed at all, and while the robbery rate rose substantially in the 1998-2001 timeframe, it dropped below its pre-NFA level by 2004 and has continually declined since then:” > > > [@](#): > > > > [Australia Banned the Deadliest Guns 20 Years Ago and Hasn’t Seen a Fatal Mass Shooting Since | The Science Explorer](http://thescienceexplorer.com/humanity/australia-banned-deadliest-guns-20-years-ago-and-hasn-t-seen-fatal-mass-shooting) Australia didn’t have a lot of mass shootings to begin with. I think they had a handful of mass shootings in the post WWII era. To compare Australia with a comparable society that doesn’t have a gun ban, New Zealand might be a useful comparison. They are culturally similar and they have also not had a mass shooting in a long time, but they don’t have an Australia style gun ban. > [@](#): > > I remember years ago that gun rights cultists used to always mention Switzerland as a shining example of gun culture done right. The problem is, Switzerland actually requires _licensing_ of handguns. There are also limits on the number of guns someone can purchase. > > The fact is, the gun rights cultists don’t want to enact meaningful legislation because they know it would work. The assault weapons ban was in place for 10 years and had NO MEASURABLE EFFECT, the only reason it is meaningful is because it makes the gun control lobby feel like it is accomplishing something. It is perhaps the most retarded form of gun control that your side could pursue and it shows how much the gun control side of the debate is relying on the ignorance of its supporters. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 2:34pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/404 "2016-06-29T14:34:58Z")
> [@asahi](#): > > Mods, if you don’t get this smart ass to stop insulting me with under-handed cheap shots, let the word go forth that I’m going to unleash a torrent of insults on this guy - there will be no rules. There’s no need to question intelligence here or anyone’s ability to use the English language here. I can use it fine. To be fair, your use of the word “compromise” has been non-standard. You are probably not using the word compromise inappropriately because you don’t know what it means but because you want to frame the gun rights side as uncompromising, which is a half step from unreasonable, which is kissing cousins to irrational. And by contrast frame your side of the argument as rational, reasonable and ready to compromise. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 2:53pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/405 "2016-06-29T14:53:34Z")
> [@asahi](#): > > I’m not an gun rights cultist, so I don’t have the time to sit around memorizing highly biased interpretations of court doctrine. If you want to declare victory to make yourself feel better, you can. :rolleyes: > > We can start with the mental gymnastics of the Cruikshank majority, which on the one hand seemed to argue that firearms ownership was a birthright while on the other suggesting that the Bill of Rights only forbade congress from abridging civil liberties, but then turns around and allows armed militias, essentially operating under the color of State law, to deny rights to African Americans to defend themselves. This goes back to that point I made about the Constitution not being so infallible and not being the fountain of liberty. You realize that cruikchank was mostly cited by the gun control side of the debate to argue that states and localities could disregard the second amendment because it had not been incorporated by the 14th amendment. Its sort of the reason why McDonald v Chicago was necessary after Heller (remember Washington DC is not exactly a state). McDonald explicitly overturned Cruikshank in tis regard but the court has been pretty consistent in overturning all sorts of state level laws that claimed that the bill of rights only protect citizens against the actions of the federal government and not the states and localities. > [@](#): > > We could talk about how the Miller case in 1939 stresses that congress (and virtually any state authority) can prohibit firearms that aren’t necessary to defend a State. In fact it makes explicit reference to firearms rights in the collective, not in terms of individuals. This ruling incidentally conflicted with both the language of the majority in the Cruikshank ruling, which claimed on the one hand that firearms ownership was a birthright while simultaneously allowing that birthright to be nullified by a violent and racist majority. This language is also at odds with the Heller decision, which asserts that there is a fundamental right to possess firearms for self-protection. Its not at odds with Heller. The self defense line of reasoning is first introduced to us in Heller but it is not inconsistent with Miller. > [@](#): > > That’s saying nothing of the cases that the Supreme Court has not ruled on, thereby affirming lower court rulings, which in turn left numerous firearms restrictions in place. The supreme court’s denial of cert actually does say nothing. The supreme curt denies all sort of cases about anti-abortion laws. Does this mean that those laws are therefore constitutional? > [@](#): > > So which is it, smart ass, a collective right or an individual right? Why not both? Chocolate AND peanut butter. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 2:57pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/406 "2016-06-29T14:57:26Z")
> [@asahi](#): > > Understood, but thanks for completely missing the point. > > The failure was that it permitted it in the first place. However, the federalists didn’t want the Southern states to break away from the fledgling confederation. It’s an example of political pragmatism, which is fine. But let’s avoid Constitution worship, because for one thing, our current interpretation is based on folk lore and propaganda. But furthermore, treating the Constitution as some sort of sacred holy text prevents us from dealing objectively with the problems of today. Let’s actually debate whether it makes sense in 2016 for a civilized nation to permit weapons of mass murder freely floating about the United States. And of course you don’t want to ban guns :rolleyes: ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [June 29, 2016, 3:07pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/407 "2016-06-29T15:07:13Z")
It’s not based on myths, folk lore or propaganda in any case. Madison, one of the key drafters of the 2nd wrote repeatedly about a personal right of US citizens to keep and bear arms. His original draft of the 2nd reflects this. It’s horseshit that it’s all made up ‘folk lore and propaganda’…if it were that easy the gun banners would have gotten their way literally have a century ago when they first started trying to reinterpret the 2nd so that it would say what they wanted it to so, and leave the door open for the bans they wanted. And no one is saying that the Constitution is ‘some sort of sacred holy text prevents us from dealing objectively with the problems of today’…that is complete horseshit and a strawman to boot. We know that you can overturn an Amendment…there is precedence to do so. IT’S BEEN DONE. What is slimy about the pro-ban side is the way they have tried to do this through reinterpretation and through a modification of history (as well as simply playing on the ignorance of their target audience…they remind me of the Ancient Aliens guys who just say stuff knowing that their target audience will just swallow it whole without looking into it any deeper). ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 3:19pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/408 "2016-06-29T15:19:28Z")
> [@asahi](#): > > That is a completely and utterly unsubstantiated claim. There were gun control laws enacted by states and local communities as early as the turn of the 19th Century, if not earlier. The reason that there were hardly any firearms control disputes in the federal courts is that the legal battles were mostly resolved in state courts at the time. I might be wrong on this but the Cruikshank case is probably the first time that any firearms control law ever became a federal controversy. That was a case that involved racism, but gun control itself is not rooted in racism; it’s rooted in the concept of police power. The Constitution has said that states have the powers to police and provide public safety. The Constitution does not necessarily provide that power to the federal government explicitly, but given its broad powers to regulate commerce, there is at least some degree of implicit power to police the people among the states themselves. I use the word “police” much more uncomfortably and carefully as it applies to federal power, though. Denying rights generally has long historic connections with racism in this country. In the south the denial of the second amendment right to blacks ()based on facially neutral criteria like owning land (which was forbidden to blacks in more than a few places) or the permission of local law enforcement (who to this day discriminate against blacks in more than a few places)) was not uncommon. Gun control in some parts of the country had some very racist roots. That doesn’t mean that Dianne Feinstein is a racist but it does point out how guns can be useful in civilian hands. > [@](#): > > Yeah, well, refer to the above. > > Yes, Miller was about the type of firearm. And in that case, the Court opined that the “right” to keep and bear arms was inextricably tied to its purpose in equipping a well-regulated militia, being necessary to defend a free state. > > Supreme Court majority in Miller 1939 wrote: > > In SCOTUS cases that followed, justices writing for the majority and minority of the Court used similarly qualified language in reference to 2nd Amendment “rights”. In 1997, Justice Clarence Thomas tried to argue that the Miller case merely because it was not common military equipment…but that it did not otherwise define or establish the core rights under the 2nd Amendment. > > So again, what we see here is inconsistency over the centuries and decades, much of it reflecting the politics and activism of the times. > > I didn’t make any errors. I know the subject well. However, I am not really interested in playing lawyer anymore. We could go round and around in circles on this, spending hours Googling and pulling up Wiki quotes. I have neither the time nor the interest in such trivial exercises. You and I both know that all it would take are one or two more left-leaning justices to reverse decisions rendered by Scalia and Thomas. And Roberts, Kennedy and Alito. No doubt the second amendment caselaw is flawed and will get more polished over time. But frankly the pro-life people have been predicting the demise of the penumbra right to abortion for a long time and the second amendment right to self defense has at least as much of a foundation as the penumbra (as in it isn’t actually connected to any of the articulated rights in the constitution) right to abortions. I don’t see either going the way their detractors think they will. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 29, 2016, 4:30pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/409 "2016-06-29T16:30:57Z")
> [@asahi](#): > > You were the one who said that the Court had been consistent in re the 2nd Amendment, even going so far and being so smug as to attack my use of the English language to do so. Again here, you’ve made another error. I did not claim the Court had been consistent. I corrected your interpretation that they had been inconsistent. I drew the distinction explicitly as one where previous holdings were overturned. The difference is meaningful because otherwise whenever the Court recognizes a new right through incorporation, or even prenumberas, then the criticism of inconsistency can be raised. In that regard the criticism is much less meaningful. There is a difference between breaking new ground and being inconsistent with prior holdings. But since you don’t understand the difference between denying cert vs. affirming a lower court opinion, I’m not sure you’ll understand the difference here. > [@asahi](#): > > The Court has not been consistent in establishing whether firearms ownership is a birthright or a collective right of a State to defend itself (i. e. well-regulated militia). Here you are wrong again. SCOTUS has never held the 2nd amendment to be a collective right. Lower courts did adopt different iterations including both a collective right, and more recently pre-heller an individual right. Even in Heller\*\* all 9 justices agreed that the 2nd amendment protects some sort of individual right\*\* - they disagreed on the extent of that right. From the two dissents: > [@Stevens Dissent in Heller](#): > > The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. > [@Breyer's Dissent in Heller](#): > > I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1) The Amendment protects an ‘individual’ right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. The collective rights theory was never held at SCOTUS. Your claim is wrong. > [@asahi](#): > > In recent years, the Court issued a decisive 5-4 majority decision in stating that handgun ownership was a basic right. This was the first time the Court had decided to take on a case involving firearms rights in 70 years. It’s also worth noting that one of the justices for the majority is no longer living. Thus, it clearly has not been consistent in that regard. Court doctrine evolves as the politics evolve. It will evolve again. I agree the Court has the ability to adjust its holdings over time. I don’t see why you think Scalia’s living status has anything to do with the consistency of the court. Unless you are saying the death of a Justice makes the court inconsistent? Yes SCOTUS judges are not immortal. If that’s your argument about inconsistency that would be nonsense but not surprising. > [@asahi](#): > > That is a completely and utterly unsubstantiated claim. There were gun control laws enacted by states and local communities as early as the turn of the 19th Century, if not earlier. The reason that there were hardly any firearms control disputes in the federal courts is that the legal battles were mostly resolved in state courts at the time. I might be wrong on this but the Cruikshank case is probably the first time that any firearms control law ever became a federal controversy. Here you are wrong again - notice a theme? In 1866 The [Freedmen’s Bureau bills](https://en.wikipedia.org/wiki/Freedmen%27s_Bureau_bills) were passed overriding a presidential veto. Originally the Freedmen’s Bureau was formed during the Lincoln Administration to aid former slaves. Following that, future iterations were vetoed by President Johnson. > [@](#): > > On July 16, 1866 Congress received another presidential veto message,[8] which Congress overrode later that day.[9] This congressional action extended the Freedmen’s Bureau, increased antipathy between President Johnson and Radical Republicans in Congress, and was a major factor during Reconstruction.[4] The Freedmen’s Bureau bill that passed in 1866 provided many additional rights to ex-slaves, including the distribution of land, schools for their children, and military courts to ensure these rights. The Freedmen’s Bureau Act gave ex-slaves “any of the civil rights or immunities belonging to white persons, including the right to…inherit, purchase, lease, sell, hold and convey real and personal property, and to have full and equal benefit of all laws and proceedings for the security of person and estate, **including the constitutional right of bearing arms.** ” This bill passed both house and senate and they overrode the president’s veto. **This was in response to the Southern Black Codes & the KKK and other groups who were taking guns away from freedmen.** (my bold) The roots of gun control have always been racist. Unfortunately the Freedmen’s Bureau was ineffective and was later scuttled. Partially in response the Civil Rights act of 1866 and the 14th amendment was passed. Both were intended partially to recognize the right of free blacks to arm themselves. A discussion of the [history of the drafting of the 14th amendment](http://www.constitution.org/col/intent_14th.htm): > [@](#): > > What would become the Fourteenth Amendment was debated in the House on May 8 through 10. Stevens remarked that its provisions “are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States.”[102] Representative Thayer stated that the proposed amendment “simply brings into the Constitution what is found in the bill of rights of every State,” and that “it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law.”[103] > > Bingham averred that the amendment would protect “the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction.”[104] He added that it would furnish a remedy against state injustices, such as infliction of cruel and unusual punishment.[105] By stating that Eighth Amendment violations would be prohibited, Bingham implied that the Fourteenth Amendment would prohibit deprivations of any rights recognized in the Bill of Rights.[106] > > … > > Noting the House’s passage of the Freedmen’s Bureau Bill, the New York Evening Post reprinted some of the black code provisions, which had been communicated to Congress by the president, including those punishing freedmen with flogging for keeping arms.[136] An editorial sarcastically stated: > > In South Carolina and Florida the freedmen are forbidden to wear or keep arms. > > We feel certain the President, who is, as he says, the peculiar friend and protector of the freedmen, was not aware of the code of South Carolina, or Florida, or Mississippi, when he vetoed that [Civil Rights] act. The necessity for such a measure, to secure impartial justice, will not be denied by any one who reads the extracts we have made.[137] > > … > > House members then discussed the meaning in the Civil Rights Bill of “all laws and proceedings for the security of person and property.” Representative Wilson referred to “the fundamental rights of the citizen commonly called civil rights” and the rights, such as the right to testify in court, “necessary to protect his personal liberty, his personal security, his right to property.”[56] As the language of the Freedmen’s Bureau Bill attests, the right to keep and bear arms was also necessary to guarantee personal liberty and personal security. > > The next day Bingham explained that the Civil Rights Bill would “enforce in its letter and its spirit the bill of rights as embodied in that Constitution.”[57] Citing Aristotle, Bingham argued that, by virtue of being a citizen, one is guaranteed every right in the Constitution.[58] In The Politics and other writings familiar to nineteenth-century Americans, Aristotle postulated that true citizenship included the right to possess arms, and that those who are deprived of arms are oppressed by armed tyrants.[59] The document is quite long, but the racist roots of gun control are quite clear. All of this was mooted by Slaughterhouse where SCOTUS restricted the privileges or immunities to the right to travel between states and use navigable rivers in contradiction to the intent of the amendment. Unfortunately Slaughterhouse was never overturned and the alternate incorporation of the Bill of Rights had to be undertaken over many years. There are few rights not already incorporated so the chance of overturning Slaughterhouse is slim. Look at [Dred Scott:](https://en.wikisource.org/wiki/Dred_Scott_v._Sandford/Opinion_of_the_Court) > [@](#): > > For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, **and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.** (my bold) > [@asahi](#): > > That was a case that involved racism, but gun control itself is not rooted in racism; it’s rooted in the concept of police power. The Constitution has said that states have the powers to police and provide public safety. Here you are wrong again. As noted, the Freedmen’s Bureau, the Civil Rights Act of 1866, and the 14th amendment were all partially in response to abuses of blacks who were forcibly disarmed. The [Black Codes](https://en.wikipedia.org/wiki/Black_Codes_%28United_States%29) were passed to restrict the freedom of blacks, including the right to arms. The original concealed carry system in CA was aimed to disarm Mexican and Chinese immigrants. Here is from the[SF Chronicle in 1923](http://www.claytoncramer.com/primary/other/SFChronicle1923.PDF): > [@](#): > > Possible unconstitutionality of the provision against possession of weapons by non-naturalized residents was admitted in McKissick’s letter to the Governor urging signing of the bill, but he pointed out that if this clause should be held invalid the rest of the act will not be affected and that if it can be sustained that it will have a **“salutary effect in checking tong wars among the Chinese and vendettas among our people who are of Latin descent.”** > The provision for additional sentences where weapons are used in committing a felony is one with a sliding scale. The first time the added penalty is from five to ten years; the second from ten to fifteen; the third from 15 to 25 years, and only on the fourth offense it is possible to add more than 25 years to the sentence imposed for the crime itself. (my bold) The [Sullivan Act in NY](https://en.wikipedia.org/wiki/Sullivan_Act)was passed primarily to target the Irish and other immigrants: > [@](#): > > Many believe the act was to discriminate against immigrants in New York, particularly Italians, as the first person convicted under the law was an Italian immigrant named Marino Rossi who was travelling to a job interview and carrying a revolver for fear of the “Black Hand”.[10] At sentencing the judge declared: “It is unfortunate that this is the custom with you and your kind, and that fact, combined with your irascible nature, furnishes much of the criminal business in this country”.[11] Prior to Marino’s arrest, others had been arrested under the new law but were released without charges.[12] Whether this was part of the law’s intent, it was passed on a wave of anti-immigrant rhetoric as a measure to disarm an alleged criminal element.[13] The police department who granted the licenses could easily discriminate against “undesirable” elements.[13] Days before the law took effect the New York Times published an article saying “Low-browed foreigners bargained for weapons of every description and gloated over their good fortune in hearing of the drop in the gun market before it was too late”.[14] After Rossi’s conviction the New York Times called this “warning to the Italian community” both “timely and exemplary”.[15] It is quite clear that the roots of gun control are racist. > [@asahi](#): > > Yes, Miller was about the type of firearm. And in that case, the Court opined that the “right” to keep and bear arms was inextricably tied to its purpose in equipping a well-regulated militia, being necessary to defend a free state. No - you are wrong. Heller dispenses with this nonsense: > [@Heller](#): > > It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply **was not** that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. **Beyond that, the opinion provided no explanation of the content of the right.** (my bold) It was not the right to arms itself that was tied to a militia - it was the type of arm that was protected. Your reading of Miller is wrong and subsequently your charge of inconsistency is also wrong. > [@asahi](#): > > I didn’t make any errors. I know the subject well. Right - I totally believe you (I don’t). Except there’s these: [ul] [li]How do you explain your error where you stated there have been compromises or offers of compromise? Clearly there have been none. Are you avoiding how you are using that word on purpose? [/li][li]How do you explain your error in claiming that denial of cert by SCOTUS is an affirmation of a lower court ruling? That’s completely false.[/li][li]You claim you know the subject well, yet you seem to think universal background checks and a “gun show loophole” are different things.[/li][li]Add that to all of the above errors noted above.[/li][/ul] And just because, I’ll mention this: > [@asahi](#): > > You and I both know that all it would take are one or two more left-leaning justices to reverse decisions rendered by Scalia and Thomas. The decision was not rendered only by Scalia and Thomas. It was 5-4. Scalia, Thomas, Roberts, Alito, and Kennedy. Another error - but you know the subject well of course. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 29, 2016, 4:49pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/410 "2016-06-29T16:49:10Z")
Aside from Constitutionality (and forgive me, **Bone** , if you’ve addressed this already): are you okay, philosophically, with the current restrictions on fully automatic weapons and other destructive devices? If so, why are these okay with you, but similar restrictions on certain semi-automatic firearms (or accessories like magazine size) are not okay with you? ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [June 29, 2016, 4:54pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/411 "2016-06-29T16:54:20Z")
> [@iiandyiiii](#): > > Aside from Constitutionality (and forgive me, **Bone** , if you’ve addressed this already): are you okay, philosophically, with the current restrictions on fully automatic weapons and other destructive devices? If so, why are these okay with you, but similar restrictions on certain semi-automatic firearms (or accessories like magazine size) are not okay with you? I’m sure Bone et al will have a better answer, but for me it’s the same as why I’m ok with society restricting speech in the form of making kiddie porn illegal. As long as you aren’t attempting large across the board bans that cut to the heart of a right, I think regulation wrt societal norms is perfectly acceptable, since we’ve been doing that pretty much all along. So…you can put sever restrictions on a very vertical type of fire arm (i.e. fully automatic weapons), without cutting to the heart of the right and without undue impact on the 2nd, just as you can restrict or even ban kiddie porn or other forms of vertical speech without doing the same to the 1st. Of course, if someone was trying to use the banning of kiddie porn as a wedge to eventually ban broader forms of speech using a slippery slope then…well, then we’d be talking about what the pro-ban crowd has attempted to do to the 2nd. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 29, 2016, 4:58pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/412 "2016-06-29T16:58:00Z")
> [@XT](#): > > I’m sure Bone et al will have a better answer, but for me it’s the same as why I’m ok with society restricting speech in the form of making kiddie porn illegal. As long as you aren’t attempting large across the board bans that cut to the heart of a right, I think regulation wrt societal norms is perfectly acceptable, since we’ve been doing that pretty much all along. So…you can put sever restrictions on a very vertical type of fire arm (i.e. fully automatic weapons), without cutting to the heart of the right and without undue impact on the 2nd, just as you can restrict or even ban kiddie porn or other forms of vertical speech without doing the same to the 1st. Of course, if someone was trying to use the banning of kiddie porn as a wedge to eventually ban broader forms of speech using a slippery slope then…well, then we’d be talking about what the pro-ban crowd has attempted to do to the 2nd. What does “vertical” mean in this usage? And how would restricting magazine size to (for example) 10 rounds, or 15 rounds, or some other number, fit in, in your opinion? ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [June 29, 2016, 5:03pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/413 "2016-06-29T17:03:01Z")
> [@iiandyiiii](#): > > What does “vertical” mean in this usage? And how would restricting magazine size to (for example) 10 rounds, or 15 rounds, or some other number, fit in, in your opinion? Automatic weapons are a very narrow (i.e. ‘vertical’) representation of guns available. They never were very numerous even when they were legal. Kiddie porn, at least from what I understand, makes up a very narrow (i.e. ‘vertical’) cross section of porn, and represents a very small part of it. If one were to try and ban, say, ALL porn, then that would, IMHO, be infringing on the 1st. If one were to try and ban all, say, semi-automatic weapons (something that comprises a high percentage of all guns out there…maybe 70-80%) that would be infringing on the 2nd. As for the clip size, that gets more into regulation…again IMHO. As long as you weren’t trying to regulate to effectively ban then I think you are ok wrt the Constitution. If you ARE wanting broad based bans then we have an app for that as well…same one we used to get rid of the 18th. Does that make sense? Understand, unlike some of these guys I’m neither a lawyer nor a Constitutional expert, nor does my mind work that way. But that’s my layman’s take anyway, FWIW. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 29, 2016, 5:19pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/414 "2016-06-29T17:19:27Z")
> [@iiandyiiii](#): > > Aside from Constitutionality (and forgive me, **Bone** , if you’ve addressed this already): are you okay, philosophically, with the current restrictions on fully automatic weapons and other destructive devices? If so, why are these okay with you, but similar restrictions on certain semi-automatic firearms (or accessories like magazine size) are not okay with you? Ignoring constitutional arguments? It’s hard to say in what framework this discussion lies then. Personally I support the ability of people to own fully automatic weapons indistinguishable from their right to own other weapons. However to me the issue of full auto firearms is a very low priority in terms of strategic litigation. Ranking above full auto firearms would be carry rights, transport rights, reciprocity, suppressors, knife rights, other non-firearm weapons like ASPs and tasers, and probably more. I’d prefer to have all of those items litigated and won before the subject of full auto is broached. It would be bad strategy to attack restrictions on full auto at this time. Simultaneously, I believe the NFA is unconstitutional. That being said, if restrictions on full auto are never addressed I wouldn’t be too disappointed. Honestly my primary goal would be to gain a right to carry. If that were to ever happen, I’d be willing and able to focus on non-firearm issues. But because many of the issues move together, it’s important strategically to push on all fronts. Chess not checkers. As for destructive devices like explosives and ordinance - these fall outside the scope of arms in the context of the 2nd amendment and I have no problem with their restriction. Those restrictions do not implicate the right of self defense. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 29, 2016, 5:45pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/415 "2016-06-29T17:45:02Z")
> [@Bone](#): > > As for destructive devices like explosives and ordinance - these fall outside the scope of arms in the context of the 2nd amendment and I have no problem with their restriction. Those restrictions do not implicate the right of self defense. Why do these fall outside the 2nd amendment? ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 29, 2016, 6:02pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/416 "2016-06-29T18:02:57Z")
> [@iiandyiiii](#): > > Why do these fall outside the 2nd amendment? legal precedent and caselaw, if someone pushed it laws against switchblades would probably be rule unconstitutional. But as for destructive devices and machine guns that law has never really been tested as to if they are “arms”, as they were taxed and not banned. In fact anyone whom owned a legal machine gun was exempt from the restrictions imposed by the original AWB. Just as the freedom of religion does not extend to allow polygamy and the freedom of speech does not apply to all speech. The main issue with the recent proposed laws is that they actually do nothing to solve a problem while arbitrarily restricting a “right.” The assault weapon ban is purely a cosmetic law which would have little to no effect outside of the effect on a politicians ability to be elected. It is a direct analog to requiring women seeking abortion to have an ultrasound. And like abortion the issue is never discussed based on facts as demonstrated by the arguments in this thread. It is a pretty good example of bike shedding, as it always removes the possibility of working on the core issues. [Parkinson’s law of triviality is C. Northcote Parkinson’s 1957 argument that members of an organisation give disproportionate weight to trivial issues.](https://en.wikipedia.org/wiki/Law_of_triviality) ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 29, 2016, 6:04pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/417 "2016-06-29T18:04:02Z")
> [@iiandyiiii](#): > > Why do these fall outside the 2nd amendment? From Heller: > [@](#): > > The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). > > ``` > The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added). > > Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. > > ``` > > … > We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” So the criteria - bearable arms, in common use, and not both dangerous and unusual. [Destructive devices are defined as](https://www.law.cornell.edu/uscode/text/26/5845): > [@](#): > > The term “destructive device” means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes. For item #1 in the context of the 2nd amendment, to fall outside its scope it is not sufficient to simply be dangerous. All firearms are inherently dangerous so this phrasing indicates a level of danger greater than what is typical from an otherwise normal weapon. Area effect weapons like explosives, poison gas, grenades, etc. present a level of danger greater than an otherwise typical weapon. In addition, these types of weapons are simultaneously unusual, and not in common use. As a result, they fall outside the scope of the 2nd amendment. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 29, 2016, 6:27pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/418 "2016-06-29T18:27:56Z")
> [@Bone](#): > > Again here, you’ve made another error. … > Here you are wrong again. … > The collective rights theory was never held at SCOTUS. Your claim is wrong… > Here you are wrong again - notice a theme?.. > Here you are wrong again. > No - you are wrong. Heller dispenses with this nonsense:… > Another error - but you know the subject well of course. I’m starting to think that Asahi might not be the best advocate for his side of the argument but he’s still a shit ton better than that other guy. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 29, 2016, 6:28pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/419 "2016-06-29T18:28:28Z")
> [@Bone](#): > > From Heller: > > So the criteria - bearable arms, in common use, and not both dangerous and unusual. [Destructive devices are defined as](https://www.law.cornell.edu/uscode/text/26/5845): > > For item #1 in the context of the 2nd amendment, to fall outside its scope it is not sufficient to simply be dangerous. All firearms are inherently dangerous so this phrasing indicates a level of danger greater than what is typical from an otherwise normal weapon. Area effect weapons like explosives, poison gas, grenades, etc. present a level of danger greater than an otherwise typical weapon. In addition, these types of weapons are simultaneously unusual, and not in common use. As a result, they fall outside the scope of the 2nd amendment. But don’t fully automatic weapons all fall into these categories – isn’t their “level of danger greater than what is typical from an otherwise normal weapon” (a normal weapon being a typical semi-auto handgun, hunting rifle, or shotgun)? And aren’t they both unusual and not in common use (outside of the military – which can also be said for grenades, artillery, etc.)? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 29, 2016, 6:43pm UTC](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/420 "2016-06-29T18:43:33Z")
> [@rat\_avatar](#): > > legal precedent and caselaw, if someone pushed it laws against switchblades would probably be rule unconstitutional. Knife litigation is ongoing. Recently in Wisconsin, the [Court of Appeals for the State of Wisconsin declared the state prohibitions on switchblades to be unconstitutional](https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=155961): > [@](#): > > In addition, we observe that the State’s total ban on the possession of > switchblades significantly burdens Herrmann’s right to bear arms. The United > States Supreme Court made it clear in Heller that the right to bear arms in selfdefense > is “central to the Second Amendment right[,]” and “the need for defense > of self, family, and property is most acute” in the home. Heller, 554 U.S. at 628. > Similarly, the Wisconsin Supreme Court has stated that “a citizen’s desire to > exercise the right to keep and bear arms for purposes of security is at its apex > when undertaken to secure one’s own home or privately owned business.” State v. > Hamdan, 2003 WI 113, ¶67, 264 Wis. 2d 433, 665 N.W.2d 785. Here, the effect > of WIS. STAT. § 941.24(1) is to prohibit Herrmann from using an entire class of > arms protected by the Second Amendment in his own home for his protection. > This significantly restricts Herrmann’s core Second Amendment right to bear arms > in self-defense. > > … > > Under the rationale of Heller, **if a complete prohibition of handgun possession in the home for self-defense is unconstitutional, despite demonstrable public safety concerns, it follows that a complete prohibition of a less dangerous category of arms in the home for self-defense is also unconstitutional.** (my bold) After this ruling, Wisconsin passed [AB 142](http://docs.legis.wisconsin.gov/2015/related/amendments/ab142/asa1_ab142): > [@](#): > > This substitute amendment eliminates the prohibition against possessing, > purchasing, or selling a switchblade knife. This substitute amendment treats knives > in the same manner as current law treats firearms by prohibiting local governments > from regulating the sale, purchase, or possession of knives and prohibiting charging > a person with disorderly conduct for going armed with a knife without criminal > intent. Finally, this substitute amendment eliminates a knife from being considered > a weapon for purposes of a license to carry a concealed weapon, and eliminates the > general prohibition against going armed with a concealed knife except that, under > the substitute amendment, a person who is prohibited under state law from > possessing a firearm may not go armed with a concealed knife that is a dangerous > weapon. This repealed the switchblade ban and passed state wide preemption. There has been other progress in Maine, NY, and many other states. [Kniferights.org](http://www.kniferights.org/index.php?option=com_frontpage&Itemid=1) is a solid organization to follow related issues. * * * Under the logic laid out in Wisconsin, complete prohibition of any class of weapon less dangerous than a firearm should be unconstitutional. Think ASPs, tasers, pepper spray, swords, etc. [Previous page](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469.md?page=20) [Next page](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469.md?page=22)