# Why I believe the Second Amendment protects a personal right to firearms (long) **URL:** \ **Category:** Great Debates\ **Created:** [November 10, 2009, 2:52am UTC](https://boards.straightdope.com/t/why-i-believe-the-second-amendment-protects-a-personal-right-to-firearms-long/516990 "2009-11-10T02:52:42Z")\ **Posts on this page:** 5\ **Page:** 3
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [November 11, 2009, 10:29pm UTC](https://boards.straightdope.com/t/why-i-believe-the-second-amendment-protects-a-personal-right-to-firearms-long/516990/41 "2009-11-11T22:29:55Z")
> [@Airman\_Doors\_USAF](#): > > The National Firearms Act of 1934 has distinct definitions. A legal shotgun has a precise definition and is not characterized as a “Destructive Device”. To change that characterization, re-categorizing it as a Destructive Device, would be a brazen attempt to change what has been enshrined in law for over 80 years. If that were the intent of the people who wrote the law, surely they would have done so. They had no trouble writing a precise definition for a short-barreled shotgun (see _US v. Miller_). You’re missing the point. What is the rationale behind the distinction? As it is, you’re agurment is they’re distinct becuase they’ve been defined differently. This is circular. > [@Airman\_Doors\_USAF](#): > > What rationale do I have to defend? Most of the rights enshrined in the Bill of Rights have caveats and exceptions. The provisions of the 1st Amendment, for example, have been argued to a fare-thee-well, in spite of its plain text. > > I’m baffled as to what you’re asking, quite frankly. And these caveats are based on a rationale often embodied in a test. For example, in the context of limitations on speech, there was the “clear and present danger” test put forth by Justice Holmes. This was later replaced by the “imminent lawless action” test. What is your test, your rationale behind the distinctions between the weapons categorized as Destructive Devices and a shotgun [if you say the statutory law draws the distinction, we might as well stop]? > [@Airman\_Doors\_USAF](#): > > Perhaps you’re right, but from my perspective it would be difficult indeed to argue down an 85-year-old law based on the fact that the law has been the law for so long that there is no remedy available to overturn it. On what basis would the court overturn the National Firearms Act of 1934? That it’s illegal? It’s been law for 85 years. Perhaps Aquiescence might be better here? The remedy is judicial review. It knows no statute of limitation. If the court thinks a two hundred year old law is unconstitutional, and the question is properly before the court, the court should and would strike down the law. “Seperate but equal” was the law of the land for sixty years before it was overturned. > [@Airman\_Doors\_USAF](#): > > It is obvious. However, some are safer than others Though age is not the reason ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [November 13, 2009, 3:23pm UTC](https://boards.straightdope.com/t/why-i-believe-the-second-amendment-protects-a-personal-right-to-firearms-long/516990/42 "2009-11-13T15:23:31Z")
**Airman Doors, USAF** , my question is in good faith. Is there any reason that you’ve abandoned this debate? ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [November 13, 2009, 7:34pm UTC](https://boards.straightdope.com/t/why-i-believe-the-second-amendment-protects-a-personal-right-to-firearms-long/516990/43 "2009-11-13T19:34:08Z")
> [@whole\_bean](#): > > You’re missing the point. What is the rationale behind the distinction? As it is, you’re agurment is they’re distinct becuase they’ve been defined differently. This is circular. Not so. The Court specifically recognized the legality of a shotgun in _Miller_ when they convicted Miller for violating the National Firearms Act by possessing a “short-barreled shotgun”. Therefore, the Court made the distinction between a shotgun and a weapon defined as a Destructive Device. Incidentally, they also said: > [@](#): > > The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear **bearing arms supplied by themselves and of the kind in common use at the time**. That is amusing balderdash from the Court in that short-barreled shotguns most assuredly were commonly used by the military at that time, both in the past and in the future, but that’s neither here nor there, just an interesting sidenote. > [@](#): > > And these caveats are based on a rationale often embodied in a test. For example, in the context of limitations on speech, there was the “clear and present danger” test put forth by Justice Holmes. This was later replaced by the “imminent lawless action” test. What is your test, your rationale behind the distinctions between the weapons categorized as Destructive Devices and a shotgun [if you say the statutory law draws the distinction, we might as well stop]? Again, see the _Miller_ decision. Until _Heller_, the Supreme Court was all but silent on the topic, so that was all we had to go by. They made the distinction based on the law that made the distinction. > [@](#): > > The remedy is judicial review. It knows no statute of limitation. If the court thinks a two hundred year old law is unconstitutional, and the question is properly before the court, the court should and would strike down the law. “Seperate but equal” was the law of the land for sixty years before it was overturned. If the Court overturns the NFA as unconstitutional, they will be overturning all other gun control statutes (the GCA of 1968 and the FOPA of 1986) as those were mere modifications of the NFA. That would instantly destroy the system we have for background checks, it would destroy the limitations on importation of weapons, it would reintroduce the ability of manufacturers to produce automatic weapons for civilians… in this climate, do you think the SCOTUS would do that, even if they’d like to? They have already approved of restrictions. Scalia pointedly said so in the _Heller_ opinion. Anyway, I do not understand why you’re trying to pin me down on this “plain reading” point. The “plain reading” of several Amendments does not preclude restrictions on the rights they protect. According to the plain reading of the 2nd Amendment I can have anything I want. I mean, if that’s what you want to hear, there you go. But I, and almost all gun owners and gun-rights advocates save for a few that want something that never really existed to begin with, recognize that like all rights, these are not absolute. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [November 15, 2009, 5:42pm UTC](https://boards.straightdope.com/t/why-i-believe-the-second-amendment-protects-a-personal-right-to-firearms-long/516990/44 "2009-11-15T17:42:58Z")
> [@Airman\_Doors\_USAF](#): > > According to the plain reading of the 2nd Amendment I can have anything I want. I mean, if that’s what you want to hear, there you go. Ok. I commend your candor, I to agree that 1) the 2nd Amendment does mean ordinary folk (_i.e._ you and me (or maybe not you, since it appears your are in the service)) have the right to gun ownership; and 2) this right to bear “arms” can and should be limitted. I just felt like someone raised an interesting piont and you sidestepped it. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [November 15, 2009, 7:04pm UTC](https://boards.straightdope.com/t/why-i-believe-the-second-amendment-protects-a-personal-right-to-firearms-long/516990/45 "2009-11-15T19:04:13Z")
> [@haymarketmartyr](#): > > Oregon Sunshine offers > I would agree. Quoting only a selected portion of the one sentence Second Amendment while conveniently the rest of the sentence is truly a no brainer. I posted a link to the Heller decsion at [FindLaw.com](http://FindLaw.com) in your other thread, with select quotes explaining the difference between an introductory clause and and operative clause, and what constitutes the militia. Did you even bother to read it? Or do you just see it as another evil plot of the evil gun lobby to confuse you with facts and technical jargon? [Previous page](https://boards.straightdope.com/t/why-i-believe-the-second-amendment-protects-a-personal-right-to-firearms-long/516990.md?page=2)