This thread was inspired by the SCOTUS decision today overturning Massachussettes’ stun gun ban (cite, PDF, starts on page 15)
The ‘great debate’ I see here is: Which “arms” should be protected by the Second Amendment?
tazers (banned in a few states)?
knives?
swords?
nunchuks (banned in CA, NY, and MA, I believe)?
handguns?
semi-auto rifles?
“high”-capacity magazines (banned in a few states)?
select-fire firearms (highly-regulated at the federal level)?
crew-serve weapons?
“destructive devices” ('splody things, highly-regulated at the federal level)?
military vehicles with mounted weapons?
Yeah, the tail end of my list is a bit fuzzy, but I think you get the idea. If you were the deciding vote on the Supreme Court, or Dear Leader for a day, where would you draw the line? Which “arms” do you think are outside the protection of Second Amendment guarantees?
You’re not thinking ahead, future weapons that allow one to zap a person’s brain telepathically with a psychic-amplifying helmet should be legal too. Kids should have them, so they can zap each other senseless when they get upset.
While teleporters will come with safety regulations, since they can be used as arms to teleport bombs and bullets into people, they need to be deregulated and sold openly as well.
Not to mention bear arms, for when we finally wrest control of the genome from Mother Nature. There is literally no argument against modifying your arms into that of an ursine, its word for word allowed in the Constitution!
I don’t think there’s consensus on this, to put it mildly. However, I think that the USSC opinion in US vs. Miller may be a good starting point;
Though it may be counterintuitive to some, by this standard the more ‘military’ a weapon is the more it’s protected, as long is it’s something used by a common grunt soldier.
are items that it would be reasonable to say are in common use by rank-and-file soldiers at this time. A case could also be made for crew-serve weapons, but I think that’s arguable as they are typically used by specialists.
Anyone concerned with self defense, as a practical matter this means a firearm with the current state of technology, and further this means a handgun. Best defense weapon to protect the smaller and weaker, against the larger and meaner sorts. Other weapons like knives or pepper spray or “stun” guns are decidedly less effective at stopping a lethal threat.
Anyways, it always seemed goofy to me that the gun control crowd clung to Miller as a precedent worth preserving, and simultaneously argued that assault weapons should be banned.
I don’t start with Miller, but I agree with this interpretation. Militia weapons are those that may reasonably be kept and borne–maintained and employed–by one person.
Stun guns can still be banned in Massachusetts. The ruling today simply obliterated the reasoning that the Mass courts used. The issue was remanded and the Mass. court could come up with another novel way to ban stun guns.
The ruling’s larger impact is to put to bed the piss poor reasoning that Mass. used to come up with their scheme.
The absolutists insist on reading the Constitution in the language and context that applied at the time. Okay, fine: The clear intent of the amendment was to make sure the country would have an effective military force on short notice when it needed one. Since the decision was made shortly afterward to have a standing army, and since the state militias were transformed into the National Guard (which takes care of its own equipment), it has been meaningless ever since.
The opinion today said, “The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.”
Do those words have a significantly-different meaning from “The judgment is reversed, and the case is remanded” which the court utilized in McDonald v Chicago?
The Mass. court essentially got the analysis wrong. They upheld the ban on stun guns because they concluded that stun guns weren’t covered under the 2nd. SCOTUS just vacated, but did not say stun guns are covered. They simply said that Mass. used reasoning that was proscribed by Heller. They need to do it again, and this time, it must be consistent with SCOTUS.
Conceivably the Mass. court could re-evaluate the case, and do the 2 prong 2nd amendment analysis, follow Heller, and determine that stun guns are covered. Then, in the 2nd prong, say that even though they are covered, still uphold the ban because other defense mechanisms are available. That too would be very very shitty reasoning, but the 2nd circuit did that with assault weapons. So if you are the stun gun lobby, you haven’t achieved total victory yet.
That’s why the rationale used today is more of a victory and potentially longer lasting than the stun gun issue. It destroys specious arguments like ones that tried to limit arms to those available at the time of enactment. No matter what the Mass. court does, that part isn’t going away. Maybe Mass. upholds the ban based on different reasons, and SCOTUS then denies cert. It would be status quo from yesterday before the ruling with regard to stun guns in Mass. But the reasoning that got eliminated from SCOTUS will still be eliminated.
One of the shitty things here is that Caetano (plaintiff) is still in limbo. She acquired the stun gun to protect her self from domestic violence, and as a result of her conviction she is barred from also purchasing a handgun or any firearm. While this case makes its way through the judicial proceedings, she’s still fucked.
Agreed that it’s not total victory yet, but Alito’s concurring (I know, not binding) opinion targeted that very same line of thinking:
The actual quote from the Heller opinion is:
After a smack-down they just received, I’d be very surprised if MA tried the “but we let them have handguns so they don’t need stun guns” line.
And yes, Caetano has been horribly mistreated by Massachussettes’ insane weapon laws. The state has been ruining her life for years now, all in the name of enforcing an utterly-asinine electric-weapons ban.
The 2nd circuit court goes on to say that the bans pass intermediate scrutiny, even though the standard they apply seems more like rational basis, and defer to the legislature who wants to ban the weapons and magazines.
I would not be surprised if at the end of the day the stun gun ban in Mass is upheld, and Caetano is still prohibited from purchasing a weapon to defend herself. Because weapon laws in Mass. fucking suck.
Even for very broad definitions of shortly (the National Guard didn’t become a permanently dual status organization until 1933) that’s simply not true from a legally absolutist standard. Nothing about the agreement to make the National Guard a dual status force made it the only militia in the US. Federal law, in fact, still provides for an unorganized federal militia (all able bodied males 18-45). If addition many states still maintain organized militia forces outside the National Guard structure that have uniforms and get together to train. Some states even have naval forces (including Ohio!). Overwhelmingly states also provide a legal basis for an unorganized militia subject to involuntary call up. Those state level unorganized militias tend to either follow the federal standard of who are members or a looser standard (like a wider age range and/or including both male and female).
The National Guard is A militia force. It’s not the ONLY militia force. The absolutist interpretation comes up on the most unrestrictive pro-gun side at times. They use it to support loosening current restrictions on guns since the militia is so broadly defined in law.
My, that is a novel way of looking at the legal situation. Is there anybody whose legal credentials did not come with two stickers and a piece of bubblegum who actually takes that line of reasoning seriously?
The topic was the intent of the amendment, not ways to make it mean something different. “Militia” meant the nation’s military force, and that meaning soon became obsolete with the establishment of a standing army that made requiring readiness for a temporary one unnecessary.
For clarification, look at the relevant section of the Articles of Confederation, IOW the constitution that was actually in effect when the Second was written.