# The right to bear arms **URL:** \ **Category:** Great Debates\ **Created:** [February 17, 2017, 3:12pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056 "2017-02-17T15:12:21Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![bizerta](https://avatars.discourse-cdn.com/v4/letter/b/3be4f8/32.png) [@bizerta](https://boards.straightdope.com/u/bizerta)\ **Post date:** [February 17, 2017, 3:12pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/1 "2017-02-17T15:12:21Z")
This was prompted by a PBS show on Ruby Ridge. Americans have the right to bear arms, but I see nothing in the Constitution that determines what arms are allowed, restricted, or inhibited. For example (A) why is a sawed off shotgun illegal? Isn’t that an “arm”? (B) automatic weapons. © IIRC, felons are not allowed to carry weapons. Is there something in the Constitution that forbids it? (D) 50 years ago, my father had an old shotgun that could hold five rounds. The “law” required him to put a wooden plug in it so that only three rounds could be fired without reloading. (E) If we have the right to bear arms, why can’t we just go into a gun store and cash-and-carry? (F) I’m sure I’d think of more if I had the time. ---
**Author:** ![Bones\_Daley](https://avatars.discourse-cdn.com/v4/letter/b/bc8723/32.png) [@Bones\_Daley](https://boards.straightdope.com/u/Bones_Daley)\ **Post date:** [February 17, 2017, 3:37pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/2 "2017-02-17T15:37:24Z")
The Constitution states " A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept. ---
**Author:** ![Chefguy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chefguy/32/138_2.png) [@Chefguy](https://boards.straightdope.com/u/Chefguy)\ **Post date:** [February 17, 2017, 3:48pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/3 "2017-02-17T15:48:36Z")
> [@Bones\_Daley](#): > > The Constitution states " A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." > > Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept. Also when all types of firearms meant muzzle loaders. We also have the right to free speech, but there are restrictions (hate speech, inciting to riot, etc). Your rights are only such up to the point where they infringe on others’ rights. Also, the role of government is to protect its citizens. Sawed off shotguns are easily concealed, and felons are more likely to be repeat offenders. Automatic weapons are not illegal, but there are special permits required, IIRC. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 17, 2017, 3:52pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/4 "2017-02-17T15:52:15Z")
> [@Bones\_Daley](#): > > The Constitution states " A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." > > Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept. Scalia (shocker to me) said that the 2nd Amendment [does not preclude regulation.](https://takingnote.blogs.nytimes.com/2015/12/11/justice-scalias-gun-control-argument/) > [@](#): > > Here is Justice Antonin Scalia, writing the majority opinion in District of Columbia v. Heller, in which the Supreme Court reversed a long-held position and ruled that the Second Amendment did give Americans an individual right to own firearms. The court said the District’s ban on handguns in private homes went too far, but that regulation of gun ownership was compatible with the Second Amendment: > > “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, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” ---
**Author:** ![August\_West](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/august_west/32/18069_2.png) [@August\_West](https://boards.straightdope.com/u/August_West)\ **Post date:** [February 17, 2017, 4:12pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/5 "2017-02-17T16:12:24Z")
> [@bizerta](#): > > (D) 50 years ago, my father had an old shotgun that could hold five rounds. The “law” required him to put a wooden plug in it so that only three rounds could be fired without reloading. That “law” only applies when hunting migratory waterfowl. My shotgun holds 8 rounds and is perfectly legal. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [February 17, 2017, 4:22pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/6 "2017-02-17T16:22:01Z")
Moved to Great Debates. Colibri General Questions Moderator ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 17, 2017, 4:26pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/7 "2017-02-17T16:26:47Z")
> [@Bones\_Daley](#): > > Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept. Any weapon was allowed. You could own a warship if you wanted to with cannons and armed men…the works. Indeed many people did own those. The War of 1812 was fought, in part, with privateers. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 17, 2017, 4:28pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/8 "2017-02-17T16:28:21Z")
> [@Chefguy](#): > > We also have the right to free speech, but there are restrictions (hate speech, inciting to riot, etc). AFAIU there is no restriction on “hate speech” in the US. Can you give a cite? > [@](#): > > Your rights are only such up to the point where they infringe on others’ rights. Correct. There is a right not to be physically assaulted or have your property destroyed (which is where the “inciting to riot” comes in I guess). But there is no right not to be offended (which is where the “hate speech” doesn’t come in). ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 17, 2017, 4:28pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/9 "2017-02-17T16:28:46Z")
AIUI, the Second Amendment ought to mean “arms” on a broad spectrum, and the whole fight is about where on that spectrum the cutoff point is. So if you ban all firearms, your citizenry can still have knives, so arms are permitted - conversely, at the other extreme, if citizens want their own nuclear warheads, then banning them from having them could be called “Inhibiting the right to bear arms.”… ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [February 17, 2017, 4:34pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/10 "2017-02-17T16:34:40Z")
With regard to A), you can purchase a short-barrel shotgun, but you have to jump through the same sort of bullshit hoops with the ATF that you do for full-auto weapons. It’s an especially-illogical situation with short-barrel rifles, where an AK pistol is easy to purchase, an AK rifle is easy to purchase, but the middle ground - a short-barrel AK - requires you to jump through some silly bureaucratic hoops. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 17, 2017, 4:35pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/11 "2017-02-17T16:35:20Z")
The Constitution was written at a time when the average rural American owned a rifle or shutgun for hunting and city residents might own a pistol. Militias were to be gathered out of these basics for emergency purposes. The forces in the Revolution were poorly armed and required infusions of better guns and ammunition - not to mention training - to function. They were allowed to go back to their chaotic state afterwards because their was a general feeling that a standing army - used so often in Europe for repression - was not American. Even so, a small army and navy were formed, and an officer corps trained at West Point and Annapolis, on the logical grounds that trained and disciplined troops were always superior to hastily-gathered bands of disorganized civilians. For most of the next 150 years, the Second Amendment wasn’t given much thought. Eventually, militias were phased out in favor of state National Guard units to ensure that the training and discipline was always in place. Guns meant the same rifles, shotguns, and pistols as in 1787. During Prohibition gangsters got their hands on machine guns, which changed the balance even after police forces got them as well. [The National Firearms Act of 1934](https://en.wikipedia.org/wiki/National_Firearms_Act) tried to take legal weapons back to the basic trio. It banned machine guns, and also sawed-off shotguns, silencers, and bomb-like explosives. The Supreme Court effectively gutted the Act as unenforceable in 1968. Today, the Second Amendment has no real definition that is established in law and recent court cases have generally ruled that sane, non-felons have the right to purchase almost any gun-style weapon. The waiting period is to ensure that the non-sane or felons are not allowed to purchase from gun stores, although they can easily do so elsewhere. Most political scientists would agree this is not inherent in any deep meaning of the Amendment but due to a combination of a highly-motivated voting bloc and conservative judges. If an equally highly-motivated antigun voting block were to emerge in a time of liberal judges, the laws would be entirely different. The Constitution is a framework. Each generation builds the visible sheathing in its own design, however lumpy and mismatched that might be. People sometimes mistake the temporary sheathing as something permanent. Worse, people sometimes claim that the framework allows for only one single sheathing. Obviously, reality and history refute both notions. There’s no sound, logical answer to the OP. The answer is always votes and ideology, no matter which way they swing. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 17, 2017, 4:38pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/12 "2017-02-17T16:38:38Z")
The case law on the Second Amendment is thin, and the interpretation of the Amendment has undergone some changes over time. The laws regarding weaponry have mutated with those changes. The Supreme Court of the United States did not have occasion to interpret the Second Amendment until 1939, when it issued an opinion in _United States v. Miller_, 307 US 174. In that case, the defendants were charged with violation of the National Firearms Act requiring registration of sawed-off shotguns. That act, passed in 1934, was an attempt to deal with the possession and use of machine guns and other weapons by the gangs that had operated during Prohibition. The lower court had dismissed the indictments on the theory that the Second Amendment barred prosecution, and not shockingly, the defendants did not stick around to reply to the appeals by the Government, so the Supreme Court’s opinion is somewhat tainted by the fact that it was based only on briefing by the Government. In _Miller_, the Court opined that the “prefatory clause” (“A well regulated Militia, being necessary to the security of a free State, …”) gave scope to the Amendment. Thus, the purpose of the Amendment being to make certain that militias could exist unhampered, the Court held that weapons like sawed-off shotguns could be registered and taxed, since they did not bear reasonable relationship to running a militia. A number of Court of Appeals cases in the years after that both followed this reasoning, and showed that it had some potential flaws. There grew up a significant opposing movement among legal writers, that the Amendment was an **individual** right, not limited to the prefatory clause. This group of writers noted that the “operative clause” ("… the right of the people to keep and bear Arms shall not be infringed.") did not have any limiting language in it. Further, the Second Amendment is placed among a number of amendments in the “Bill of Rights” which are all personal rights. This group of writers asserted that the Amendment bars the Federal Government (and probably, by incorporation into the 14th Amendment’s Due Process Clause, the states) from regulating firearms of any kind. Among the authors who wrote about this concept prior to 2008 was Antonin Scalia. In 2008, everything changed. The Supreme Court issued it’s holding in _District of Columbia v. Heller_, 554 US 570, striking down a law applicable to the District banning handguns entirely, and placing all other firearms under significant restrictions. In reaching its determination, the opinion extensively reviews the concepts of “keep and bear arms” and “well-regulated militia” through the centuries before and after the Revolution. The Court decided that the Second Amendment is an individual right, and that the government was not able to regulate handguns on the basis that they were not relevant to forming a well-regulated militia. In the opinion, the Court did try to limit the extent of its decision through _dicta_ (things said by the Court that have no precedential value, since they aren’t relevant to the case in front of it, but which can be used to guide future courts in understanding what the Court wanted), saying that their opinion should not be considered to preclude keeping felons from possessing guns, or the mentally ill, or banning possession on school grounds and in government buildings, etc. Justice Scalia’s comments on “dangerous and unusual weapons” has already been noted above. Since this is _dicta_, and since the words “shall not be infringed” are arguably a stronger injunction than “abridging” or “respecting”, speculation is strong that, presented with actual cases testing those types of limits, the Court might have to retreat from them. Certainly, that is the view of the NRA. Not long after _Heller_, the Court held that the Second Amendment’s right also is a limit on state power (_McDonald v. Chicago_, 561 US 742 (2010)). There were four justices who would incorporate it to the Due Process clause of the 14th Amendment as a function of “liberty”; Justice Thomas preferred to incorporate it using the Privileges and Immunities Clause. So as you can see, prior to the 1930s, no one knew quite what the Amendment precluded for certain. From the '30s to the turn of the Century, it was thought the Amendment allowed for reasonable restrictions on firearms by type, allowing registration, taxation, and even outright bans, as well as carving out certain individuals from the right (felons, mentally ill, those on school grounds, etc.). After 2008, the Amendment appears to have little tolerance for government limitations on firearms. Still, the Supreme Court in _Heller_ did attempt to preserve some of the traditional limitations government has employed. It is still to be determined exactly how they will fare. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [February 17, 2017, 4:39pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/13 "2017-02-17T16:39:21Z")
I’d never considered the possibility before, but I wonder if you could submit an application for a nuclear warhead as a “destructive device”. [Here](https://www.atf.gov/file/11281/download) is the form you’d use for it (I think I’ve got this right). I wonder if they’d accept it. ---
**Author:** ![yearofglad](https://avatars.discourse-cdn.com/v4/letter/y/b782af/32.png) [@yearofglad](https://boards.straightdope.com/u/yearofglad)\ **Post date:** [February 17, 2017, 4:41pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/14 "2017-02-17T16:41:50Z")
> [@Okrahoma](#): > > AFAIU there is no restriction on “hate speech” in the US. Can you give a cite? There is no such restriction. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [February 17, 2017, 4:51pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/15 "2017-02-17T16:51:14Z")
> [@Exapno\_Mapcase](#): > > The Supreme Court effectively gutted the Act as unenforceable in 1968. I assure you that this is not a correct view of the current state of legality of the NFA. In the OP, he mentions Ruby Ridge. If the NFA were actually “unenforceable”, what the fuck was the FBI doing on the Weaver’s property in 1992 shooting people? People go to federal PMITA prison for NFA violations with regularity. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [February 17, 2017, 4:52pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/16 "2017-02-17T16:52:42Z")
I’ll try and address some of these … my information might be a bit dated though … > [@bizerta](#): > > (A) why is a sawed off shotgun illegal? Isn’t that an “arm”? Sawed off shotguns were specifically address by SCOTUS in the 1930’s … they determined that these arms were neither normal nor necessary for the well-regulated militia … even the regular military at the time didn’t use them … therefore this specific arm isn’t protected under the 2nd Amendment … by this standard we don’t have a right to own a nuclear arm … > [@bizerta](#): > > (E) If we have the right to bear arms, why can’t we just go into a gun store and cash-and-carry? Waiting two week to take possession of your arm isn’t sufficiently onerous to the exercising of one’s right to bear arms … when you’re called up for militia duty is a bad time think about getting gun after all … > [@bizerta](#): > > (F) I’m sure I’d think of more if I had the time. I’ve found most regulation to be common sense … people should be treating their guns this way anyway … it’s sad we have to pass laws just to force people to be careful … ETA: massively nin’ja’ed … ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [February 17, 2017, 5:01pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/17 "2017-02-17T17:01:44Z")
With respect to E) in most states there are no waiting periods to purchase a firearm ([Cite](http://smartgunlaws.org/gun-laws/policy-areas/gun-dealer-sales/waiting-periods/)). In that sense, they are cash-and-carry, although you do have to pass an instant background check first. Most states also allow private-party face-to-face transactions, which are very much “cash-and-carry”, unless you’re dealing with a seller that is imposing their own additional rules on top of legal requirements. I’ve met people in darkened parking lots late at night, handed them a wad of cash, and walked away with a gun. All perfectly legal. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 17, 2017, 5:04pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/18 "2017-02-17T17:04:44Z")
> [@watchwolf49](#): > > … it’s sad we have to pass laws just to force people to be careful … The comedian Jim Jefferies speaks to this point: \*"If you’re a responsible gun owner and you don’t fuck around with them then you should be allowed your guns. But that’s not how society works. We have to play to the 1% that are such fuckwits that they ruin it for the rest of us. We have to walk as slow as our slowest person to keep society fucking moving. I take drugs like a fucking champion. We should all be allowed to take drugs but we can’t, can we, because Sarah took drugs and she stabbed her fucking kids. Thanks Sarah, you fucked it up for everyone! Everyone should be able to drive their car as fast as they can do it. But we can’t because Jonathan got drunk and ran over a family. Thanks Jonathan! Now I have to drive at 30 you fucking idiot!"\* [SOURCE](https://youtu.be/n71CSp8NJlc?t=667) ---
**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:** [February 17, 2017, 5:29pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/19 "2017-02-17T17:29:16Z")
> [@DSYoungEsq](#): > > In _Miller_, the Court opined that the “prefatory clause” (“A well regulated Militia, being necessary to the security of a free State, …”) gave scope to the Amendment. Thus, the purpose of the Amendment being to make certain that militias could exist unhampered, the Court held that weapons like sawed-off shotguns could be registered and taxed, since they did not bear reasonable relationship to running a militia. This isn’t quite right. Because the defense didn’t present argument in Miller as you note, the court \*\*did not \*\*conclude that short barreled shotguns did not bear a reasonable relationship to running a militia. [What they actually said](https://supreme.justia.com/cases/federal/us/307/174/case.html): > [@](#): > > 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. Certainly 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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. They basically said there was no evidence presented that short barreled shotguns had a militia purpose. However, if the defense did make an argument, hopefully they would have noted the utilization of short barreled shotguns for military and militia purposes at the time. The [blunderbuss](https://en.wikipedia.org/wiki/Blunderbuss)is one such weapon. Now, it’s impossible to say whether presentation of evidence such as this would have persuaded the Miller court, but certainly it would have changed the analysis in the above quoted section. [Here is one example of its use](https://www.loc.gov/exhibits/lewisandclark/lewis-landc.html): > [@](#): > > The Lewis and Clark expedition was in many ways an infantry company on the move, fully equipped with rifles of various kinds, muskets, and pistols. Among the firearms were two blunderbusses. Named after the Dutch words for “thunder gun,” the blunderbuss was unmistakable for its heavy stock, short barrel, and wide-mouthed muzzle. Other expedition guns might be graceful in design and craftsmanship but the stout blunderbuss simply signified brute force and power. Lewis and Clark fired their blunderbusses as signs of arrival when entering Indian camps or villages. > [@bizerta](#): > > For example (A) why is a sawed off shotgun illegal? Isn’t that an “arm”? (B) automatic weapons. (C) IIRC, felons are not allowed to carry weapons. Is there something in the Constitution that forbids it? (D) 50 years ago, my father had an old shotgun that could hold five rounds. The “law” required him to put a wooden plug in it so that only three rounds could be fired without reloading. (E) If we have the right to bear arms, why can’t we just go into a gun store and cash-and-carry? (F) I’m sure I’d think of more if I had the time. (A) - Because of the NFA and the Miller ruling in 1939. Not illegal but controlled by the NFA and subsequent revisions. (B) - Same as A (C) - Because fed and states passed laws that have been upheld by courts. (D) - this is a hunting specific rule at a specific location. (E) - State level restrictions have been passed and either upheld or not yet litigated. This is on a state by state basis as there are many states where this is allowed under certain circumstances. (F) - ask away. ---
**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:** [February 17, 2017, 5:39pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms/780056/20 "2017-02-17T17:39:43Z")
> [@Chefguy](#): > > Also when all types of firearms meant muzzle loaders. Also not quite right. Early repeating rifles existed at the time, though they were very expensive and not super common. [Next page](https://boards.straightdope.com/t/the-right-to-bear-arms/780056.md?page=2)