'Assault weapon' bans: Constitutional?

[bigrebnc1775]

Nuclear weapons are NOT outlawed for citizens by the consitution according to many of USMB's resident constitutional scholars .

STILL, the USA continues to insist tht Iran doesn't have the right to build them.

Go figure

Nuclear weapons are not FIREARMS dumb ass.

They are ARMS though.

Under 26 USCA § 861 (a), firearms is defined as “"a shot gun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition." United States v. Adams, 11 F. Supp. 216, 217 (S.D. Fla. 1935)

U.S. v. Miller, 307 U.S. 174 (1939) The case also made clear that the militia consisted of "all males physically capable of acting in concert for the common defense" and that "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." In setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to "all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barrelled shotgun.

 

[manifold]

Nuclear weapons are not FIREARMS dumb ass.

They are ARMS though.

Under 26 USCA § 861 (a), firearms is defined as “"a shot gun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition." United States v. Adams, 11 F. Supp. 216, 217 (S.D. Fla. 1935)

U.S. v. Miller, 307 U.S. 174 (1939) The case also made clear that the militia consisted of "all males physically capable of acting in concert for the common defense" and that "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." In setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to "all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barrelled shotgun.

I understand how case law has shaped our 'interpretation' of the 2nd Amendment, and I understand why it's been allowed to happen. But if we wiped clean the slate of case law and re-interpreted the 2nd Amendment, I'd argue that as it's currently written, any and all restrictions placed on acquisition, ownership and maintenance of arms of any kind violate the rights as enumerated therein. Of course that will never happen, so this discussion is purely academic. However I wish it had gone down differently. I wish every gun law was stricken down until we all came together and rewrote the amendment. I think that's a better process and more in line with what the FF envisioned.

 

[PratchettFan]

Exactly right. There are no stipulations at all.

Oh, but there are. The 2nd amendment is just one sentence, but it is a complete sentence. It does not begin after the comma. The stipulation is the stated intent of the amendment. Which is not that you can have any weapon you want. The intent is a well regulated militia. You can't have a well regulated militia without the state having the power to regulate. So while the amendment does say the right to keep and bear arms shall not be infringed, it does not say the right to keep and bear any arms a given citizen wants shall not be infringed.

No one argues that thr 2nd protects the right to own and use ALL weapons.
The issue HERE is 'assault weapons' and the protections afforded to them by the 2nd.

I've read the 2nd amendment and can't find the words "assault weapons" in it anywhere. There are no protections afforded to them. Since you agree the state has the right to limit the type of arms citizens are allowed to keep, then it really is just a question of what limits the state wishes to apply.

 

[there4eyeM]

Another problem between 1790 era and today is that it required knowledge and expertise to use a firearm.
Any idiot over 11 can hold and fire an M-16 or AK. People were much more personally responsible and there were vastly fewer of them.

 

[manifold]

I've read the 2nd amendment and can't find the words "assault weapons" in it anywhere. There are no protections afforded to them. Since you agree the state has the right to limit the type of arms citizens are allowed to keep, then it really is just a question of what limits the state wishes to apply.

I haven't been following your conversation and I don't mean to cherry pick, but the bolded portion caught my eye.

You bring up a very good point, and one that has been allowed to evolve with every restriction placed on 'arms'. Academically speaking, once a person concedes that the 2nd Amendment does not protect nukes, they've forfeited the argument that it protects anything, specifically. The 2nd Amendment has been completely neutered.

 

[bigrebnc1775]

They are ARMS though.

Under 26 USCA § 861 (a), firearms is defined as “"a shot gun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition." United States v. Adams, 11 F. Supp. 216, 217 (S.D. Fla. 1935)

U.S. v. Miller, 307 U.S. 174 (1939) The case also made clear that the militia consisted of "all males physically capable of acting in concert for the common defense" and that "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." In setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to "all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barrelled shotgun.

I understand how case law has shaped our 'interpretation' of the 2nd Amendment, and I understand why it's been allowed to happen. But if we wiped clean the slate of case law and re-interpreted the 2nd Amendment, I'd argue that as it's currently written, any and all restrictions placed on acquisition, ownership and maintenance of arms of any kind violate the rights as enumerated therein. Of course that will never happen, so this discussion is purely academic. However I wish it had gone down differently. I wish every gun law was stricken down until we all came together and rewrote the amendment. I think that's a better process and more in line with what the FF envisioned.

If we did this and if we did that and if is not a reason to change he second amendment.

I wish every gun law was stricken down until we all came together and rewrote the amendment. I think that's a better process and more in line with what the FF envisioned

Start with the first amendment and rewrite the whole bill of rights. kill the elections and have a dictator for life. How does that sound so far?

 

[PratchettFan]

Various SCotUS rulings have established that for a weapon to be protected under the 2nd amendment, it must be appropriate for service in the militia, in common use at the time, part of the ordinary military equipment. and suitable for any of the traditional legal uses for a firearm.

There is, quite possibly, no better specific example of this weapon than the AR-15 with 20/30rd USGI magazines, and no better general example than 'assault weapons' as a class.

Given that, please describe how banning such weapons does not violate the protections of the 2nd.

The SC has held that there cannot be a complete ban of weapons.

So you agree that the 2nd prohibits the banning of 'assault weapons' and their attending magazines.
Thank you.

That is not what I said. I said you can't have a complete ban of weapons. The state cannot say that no one can own a weapon of any kind. However, states can ban those weapons it believes are not appropriate. That falls under the power of the state created by the 2nd amendment. Which is why they are not allowed in some jurisdictions but are allowed in others.

 

[manifold]

Under 26 USCA § 861 (a), firearms is defined as “"a shot gun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition." United States v. Adams, 11 F. Supp. 216, 217 (S.D. Fla. 1935)

U.S. v. Miller, 307 U.S. 174 (1939) The case also made clear that the militia consisted of "all males physically capable of acting in concert for the common defense" and that "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." In setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to "all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barrelled shotgun.

I understand how case law has shaped our 'interpretation' of the 2nd Amendment, and I understand why it's been allowed to happen. But if we wiped clean the slate of case law and re-interpreted the 2nd Amendment, I'd argue that as it's currently written, any and all restrictions placed on acquisition, ownership and maintenance of arms of any kind violate the rights as enumerated therein. Of course that will never happen, so this discussion is purely academic. However I wish it had gone down differently. I wish every gun law was stricken down until we all came together and rewrote the amendment. I think that's a better process and more in line with what the FF envisioned.

If we did this and if we did that and if is not a reason to change he second amendment.

I wish every gun law was stricken down until we all came together and rewrote the amendment. I think that's a better process and more in line with what the FF envisioned

Start with the first amendment and rewrite the whole bill of rights. kill the elections and have a dictator for life. How does that sound so far?

Honestly, it sounds like underdeveloped hyperbole.

I look forward to reading you expound on it some more.

 

[PratchettFan]

I've read the 2nd amendment and can't find the words "assault weapons" in it anywhere. There are no protections afforded to them. Since you agree the state has the right to limit the type of arms citizens are allowed to keep, then it really is just a question of what limits the state wishes to apply.

I haven't been following your conversation and I don't mean to cherry pick, but the bolded portion caught my eye.

You bring up a very good point, and one that has been allowed to evolve with every restriction placed on 'arms'. Academically speaking, once a person concedes that the 2nd Amendment does not protect nukes, they've forfeited the argument that it protects anything, specifically. The 2nd Amendment has been completely neutered.

You could argue that. You could also argue that since I can't store several tons of land mines in my garage 10 feet from your children's bedroom that it has been neutered. I would counter that this is clearly not the case. There is a balance between individual rights and societal rights. The trick is not to go too far in one direction. That is why we have courts.

 

[bigrebnc1775]

I understand how case law has shaped our 'interpretation' of the 2nd Amendment, and I understand why it's been allowed to happen. But if we wiped clean the slate of case law and re-interpreted the 2nd Amendment, I'd argue that as it's currently written, any and all restrictions placed on acquisition, ownership and maintenance of arms of any kind violate the rights as enumerated therein. Of course that will never happen, so this discussion is purely academic. However I wish it had gone down differently. I wish every gun law was stricken down until we all came together and rewrote the amendment. I think that's a better process and more in line with what the FF envisioned.

If we did this and if we did that and if is not a reason to change he second amendment.

I wish every gun law was stricken down until we all came together and rewrote the amendment. I think that's a better process and more in line with what the FF envisioned

Start with the first amendment and rewrite the whole bill of rights. kill the elections and have a dictator for life. How does that sound so far?

Honestly, it sounds like underdeveloped hyperbole.

I look forward to reading you expound on it some more.

You want to rewrite one amendment why stop their?

 

[PratchettFan]

"A well regulated militia would not stand up to today's modern army. That would be treason."

If the point of having the militia is to resist the central government, wouldn't that necessitate the possibility of a confrontation with the central government's troops?

Yes. But that is not the point of having the militia. The point of a militia is so the federal government has the ability to call upon troops in times of war. The states cannot, without the express permission of the Congress, even have a militia except in time of war. While the militia is organized (thus regulated) by the state, it is in fact under the control of the federal government.

That is a simply not true. The States can and some do have militias. The Federal Government can call for only a portion of a States Militia. The right to have a militia is in the 2nd Amendment. The National Guard is part of the US Army. It is no militia. But if it were it is just the Federalized portion that a State may have.

Are you incapable of reading? The second conveys 2 rights. One to the State and one to the Individual. Neither right can be removed by Congress, it would require a new Amendment.

I suggest you read the Constitution. Specifically, Article I sections 8 and 10. You are misinformed.

 

[there4eyeM]

"kill the elections and have a dictator for life. How does that sound so far?"

Sounds not a whole lot different from what has been going on for quite a while.

 

[PratchettFan]

The Courts have spoken. They have stated that a weapon must be of use to the Militia to be covered by the second ( 39 ruling) the weapon must be in use, of use or previously used by the military.

Heller affirmed that the right is an individual right separate and distinct from the State right to form militias.

What these means is the supposed assault weapon is in fact clearly covered by the 2nd Amendment, which also includes at least 30 round magazines.

Any effort to ban or limit them would require an amendment. Something the gun grabbers are not willing to do cause they know they would lose.

Again, this is false on its face. There are such bans in place and they have not been struck down by the courts.

No one has challenged them, until someone does they may remain but the Courts are clear what the Standard is.

Yes. The courts have been quite clear. Which is why your statement was false.

 

[bigrebnc1775]

Yes. But that is not the point of having the militia. The point of a militia is so the federal government has the ability to call upon troops in times of war. The states cannot, without the express permission of the Congress, even have a militia except in time of war. While the militia is organized (thus regulated) by the state, it is in fact under the control of the federal government.

That is a simply not true. The States can and some do have militias. The Federal Government can call for only a portion of a States Militia. The right to have a militia is in the 2nd Amendment. The National Guard is part of the US Army. It is no militia. But if it were it is just the Federalized portion that a State may have.

Are you incapable of reading? The second conveys 2 rights. One to the State and one to the Individual. Neither right can be removed by Congress, it would require a new Amendment.

I suggest you read the Constitution. Specifically, Article I sections 8 and 10. You are misinformed.

10 USC § 311 - MILITIA: COMPOSITION AND CLASSES
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
10 USC § 311 - Militia: composition and classes | LII / Legal Information Institute

 

[manifold]

I've read the 2nd amendment and can't find the words "assault weapons" in it anywhere. There are no protections afforded to them. Since you agree the state has the right to limit the type of arms citizens are allowed to keep, then it really is just a question of what limits the state wishes to apply.

I haven't been following your conversation and I don't mean to cherry pick, but the bolded portion caught my eye.

You bring up a very good point, and one that has been allowed to evolve with every restriction placed on 'arms'. Academically speaking, once a person concedes that the 2nd Amendment does not protect nukes, they've forfeited the argument that it protects anything, specifically. The 2nd Amendment has been completely neutered.

You could argue that. You could also argue that since I can't store several tons of land mines in my garage 10 feet from your children's bedroom that it has been neutered. I would counter that this is clearly not the case. There is a balance between individual rights and societal rights. The trick is not to go too far in one direction. That is why we have courts.

The courts are a much more efficient path to change, that I'll concede freely. But when it comes to potentially undermining any of the Bill of Rights, I prefer the more formal process, where everybody has an opportunity to participate. Perhaps the term 'neutered' was a bit hyperbolic in practical terms, since people are still allowed to own 'some' arms, but ample precedent is now on the books that laws can be enforced that unquestioningly restrict the 'right to bear arms'. Now it's only a matter of time before hyperbole turns into reality. If you have a problem with that, I suggest you arm yourself.

 

[PratchettFan]

The very definition of an assault weapon makes it unbannable vis a via the current Supreme Court ruling and previous ones.

Well, given that they are indeed banned in many areas I would say this statement is false on its face.

This only means that the court challenges havent yet to catch up to them, and as such, means nothing.

Do you disagree with the assertion that 'assault weapons' are -exactly- the sort of weapon protected by the 2nd?
Do you believe that 'assaul weapons' can be banned w/o violating the Constitution?

If so, please support your positon.

Of course they can be banned without violating the Constitution. They are being banned without violating the Constitution. This really seems to be a difficult concept to understand. The purpose of the 2nd amendment is not to allow you to own whatever weapon you please. It is to support a well regulated militia. Well regulated. Militias are regulated either by the state or the federal government. You cannot have a well regulated militia without the power to regulate. Since the organization of a militia falls under the state, in accordance with article I of the Constitution, that is the primary job of the state.

 

[manifold]

If we did this and if we did that and if is not a reason to change he second amendment.



Start with the first amendment and rewrite the whole bill of rights. kill the elections and have a dictator for life. How does that sound so far?

Honestly, it sounds like underdeveloped hyperbole.

I look forward to reading you expound on it some more.

You want to rewrite one amendment why stop their?

If you have ideas about other amendments you think might be explicitly deficient, I'd love to hear them, but that's probably best saved for another thread. Regarding the topic of this thread, yes, I'd rather see the 2nd Amendment rewritten than largely disregarded, as it currently stands.

 

[bigrebnc1775]

Well, given that they are indeed banned in many areas I would say this statement is false on its face.

This only means that the court challenges havent yet to catch up to them, and as such, means nothing.

Do you disagree with the assertion that 'assault weapons' are -exactly- the sort of weapon protected by the 2nd?
Do you believe that 'assaul weapons' can be banned w/o violating the Constitution?

If so, please support your positon.

Of course they can be banned without violating the Constitution. They are being banned without violating the Constitution. This really seems to be a difficult concept to understand. The purpose of the 2nd amendment is not to allow you to own whatever weapon you please. It is to support a well regulated militia. Well regulated. Militias are regulated either by the state or the federal government. You cannot have a well regulated militia without the power to regulate. Since the organization of a militia falls under the state, in accordance with article I of the Constitution, that is the primary job of the state.

The courts have ruled the only weapons protected by the second amendment are those of suitable military use.

 

[PratchettFan]

The word regulate does not mean the same as it did back then

Yes, it does. If you disagree, take it to the SC. Until then, the 1st amendment gives you the right to complain to your heart's content - while the state regulates.

Here's a free lesson, well regulated in the time of the founders, referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected.

Here's a free lesson for you, well regulated is already defined in the Constitution and you are not even close.

 

[bigrebnc1775]

Honestly, it sounds like underdeveloped hyperbole.

I look forward to reading you expound on it some more.

You want to rewrite one amendment why stop their?

If you have ideas about other amendments you think might be explicitly deficient, I'd love to hear them, but that's probably best saved for another thread. Regarding the topic of this thread, yes, I'd rather see the 2nd Amendment rewritten than largely disregarded, as it currently stands.

I'm an all or nothing guy, you rewrite one you rewrite them all.