'Assault weapon' bans: Constitutional?

[Quantum Windbag]

As for can assault weapons be banned...I believe that recently one of the more conservative Supreme Court justices has opened the door to this matter.

Scalia opens door for gun-control legislation, extends slow burning debate | Fox News

I believe you didn't actually listen to what he said.

I listened to it very well. It is also in his latest book. Read the article below the video in which Scalia says that there were torts in existance at the time of the Bill of Rights being written that prevented "horrible" weapons from being carried about town, such as maces, executioner axes, etc., that would frighten people.

And before you go off...I am a 2nd Admendment supporter.

What he essentially said is that, as far as he is concerned, you can own any weapon you can carry. He did speculate that it might be permissible for the government to regulate shoulder launched missiles, and that we would have to see what those restrictions are. He is talking from a hypothetical point of view, which is a very scholarly way of saying he doesn't want to actually tell you what his thoughts are. I have seem both supporters and opponents of the 2nd try to argue that he is both for, and against, restrictions, based on nothing more than what they were feeling when they heard his words.

 

[bigrebnc1775]

Which is why a sawed off shotgun was not protected. Now, show me where in that opinion did it say the government cannot limit what kind of weapons you keep?

It's quite clear when the ruling states of suitable military use. Do you understand what that means?

Yes, I do. Apparently, you don't. However, since you are not a judge that is not a problem.

Yes you do what? Not understand what the courts have ruled that weapons had to be of military use to be protected by the second amendment?

 

[PratchettFan]

The words well regulated militia would mean exactly how the founders understood the words to mean. Well regulated does not mean now what it meant back then.

The second amendment does not say

A militia well regulated by Congress being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed

It says

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

The founders did not want to put the military might and control into the very hands they created the second amendment to prevent in the first place a tyrannical government.

So, either you won't read the Constitution or you did and didn't like what you read. No worries. In this country you are free to be as wrong as you like. But I will do you a favor, just in case it is simple laziness...

Article I (Legislative Powers) Section 8

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Article I Section 10

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.


Now seriously, what part of controlled by the federal government are you not getting?

I have read the constitution, I doubt you have. Do you also notice the federal government was supposed to go to the states to call up the militia if needed, not have a standing army and a militia.

Yes. I'm the one quoting the Constituiton but you are the one who has read it. You know, ignorance is curable - but you have to want to be cured.

Article I Section 8 - continued.

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Nowhere in the Constitution does it say Congress can't have a standing army and call on the militia. Nowhere.

The militia is organized by the state. However, it is under the command and beck and call of the federal government. That is how the founding fathers set it up. If you have a problem with that, you should take it up with them.

 

[PratchettFan]

It's quite clear when the ruling states of suitable military use. Do you understand what that means?

Yes, I do. Apparently, you don't. However, since you are not a judge that is not a problem.

Yes you do what? Not understand what the courts have ruled that weapons had to be of military use to be protected by the second amendment?

Yes, I do. You don't. You are in error. Incorrect. Wrong. Off base. I'm not sure how else to put it to you. You haven't got the foggiest idea what that decision was about.

 

[PratchettFan]

I suggest you do the same. Read it before you try to have it rewritten.

Ok, since you apparently won't or won't admit that you have:

Article III Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

American military Action in Libya.

Uh huh.

 

[Quantum Windbag]

Not the point, though, is it? the second amendment says "shall not be infringed."
It does not say, "shall not be infringed except for scary looking guns"

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.

If you wish to invoke the 2nd amendment, invoke it all.

I couldn't agree more. Tell me something, if you actually believe that, why do you ignore the purpose of the militia? These weapons are intended to defend the state against aggression, yet people want to insist that no one ever needs more than 10 bullets, and that it is unreasonable for a person to want to own more than one weapon. Then there are others that think the state should be able to insist that everyone demonstrate a need for a weapon which is clearly intended to be part of the common defense. Then we have people like you that insist that some weapons are acceptable for some people, but not for others.

All of you are actually ignoring the intent of the 2nd Amendment, and the fact that it clearly states that the right to keep and bear arms shall not be infringed. A militia is not regulated by government telling people that they have to keep their guns in a locked box and their ammunition in a separate locked box, it is regulated by the fact that it responds to the orders of the government. It is available to execute the laws of the union, suppress insurrections, and repel invasions.

Please note that the Constitution puts the militia under the control of the federal government. That means that, even if your position is correct, and that the government can regulate what weapons the militia carries, it is up to Congress, not the states, or cities.

 

[Quantum Windbag]

Truly, though, how many people seriously believe an 'armed militia' could stand up to 'today's modern army' for more than the time it would take to be torn to shreds?

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

No it would not.

 

[Quantum Windbag]

Quick question; who is the "regulator" in the "well regulated" part of the Amendment? Surely it's not the government, right? After all, you said the reason for a militia in the first place is "The reason militias are required is to enable the people to rise up against its own government."

Respective State.

Isn't that what the national guards are; the state "militias"?

Umm, no. The militia is actually defined in the US Code Section 311 as being every man under 45 and every woman who is a member of the National Guard.

10 USC § 311 - Militia: composition and classes | LII / Legal Information Institute

 

[RetiredGySgt]

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.

I'm not sure if you're aware of the several amendments that have been added, and some rewritten, since The Constitution was originally ratified. This might come as a surprise to you, but they don't all get rewritten every time.

Gio ahead rewrite the 2nd and then get it past 37 States. I notice no one actually wants to do that.

 

[Quantum Windbag]

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.

The fact that the bans exist does not make him wrong, it just means no one has actually challenged the ban, usually because it is not enforced. The assault weapons ban in California has just reached the federal court system, and will almost certainly be overturned since it clearly conflicts with Heller.

 

[RetiredGySgt]

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.

Which is why a sawed off shotgun was not protected. Now, show me where in that opinion did it say the government cannot limit what kind of weapons you keep?

You are ignoring facts. The fact is the Supreme Court stated for the record in several rulings that a weapon is protected if it is of use by the militia. Meaning in use by the military, of use by the military or previously in use by the military.

The State can regulate a MILITIA all it wants, by determining who can join, what status they have and what weapons to bring. They can not however regulate the protected weapons per the FEDERAL Constitution. You see Federal trumps State.

The reality is that any State that currently bans supposed assault rifles is in violation of the US Constitution. The problem is no one with standing has chosen to challenge those States. Until someone does the laws will remain on the books. That is how our system works. My State does not ban them so I can not challenge another States laws unless I move there or they effect me personally. Believe me if I lived in California or Massachusetts I would challenge the law after the current Supreme Court ruling affirming it is a personal individual right.

 

[Quantum Windbag]

"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 simply not true.

 

[Quantum Windbag]

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.

Despite the rumored existence of backpack nukes you cannot bear, ie carry, a nuclear missile.

 

[RetiredGySgt]

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

The words well regulated militia would mean exactly how the founders understood the words to mean. Well regulated does not mean now what it meant back then.

The second amendment does not say

A militia well regulated by Congress being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed

It says

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

The founders did not want to put the military might and control into the very hands they created the second amendment to prevent in the first place a tyrannical government.

So, either you won't read the Constitution or you did and didn't like what you read. No worries. In this country you are free to be as wrong as you like. But I will do you a favor, just in case it is simple laziness...

Article I (Legislative Powers) Section 8

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Article I Section 10

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.


Now seriously, what part of controlled by the federal government are you not getting?

Militia are not troops when not called up. They are MILITIA. Further the Federal Government can not call up all of a States militia. But that part they do call up they have to pay and arm. Leaving them to be trained by the States and officer-ed by the States. A militia not called to duty is not standing troops, that would be WHY every State before the Civil war and after had several militias.

You are aware that the National Guard units were State militias in being before being designated National Guard? You are aware that several States have independent militias separate from the National Guard? That the 2nd Amendment confers a right to the States and to the Individual?

Further the Constitution does not say the Federal Government controls all militia. It clearly states it only controls those elements called to duty by the Federal Government, since the 1880's early 1890's that has been the National Guard.

 

[Quantum Windbag]

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.

The 2nd clearly states that the right to keep and bear arms shall not be infringed. That, despite what you see in the movies, means that nuclear weapons are not covered because no one can actually carry one.

 

[M14 Shooter]

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.

Please show that 'assault weapons' do not fall under 'arms'.
Be sure to cite the relevant court cases that support your position.

Since you agree the state has the right to limit the type of arms citizens are allowed to keep,

Um.... you'll have to quote me on this.

 

[Quantum Windbag]

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.

Logical fallacy alert, circular reasoning.

The fact that they are being banned does not mean the bans do not violate the constitution.

 

[M14 Shooter]

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.

According to whom?

 

[M14 Shooter]

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.

Ah. I thought you were going to respond with someting that reflects current jurispridence. It appears I was wrong.

Thank you for your opinion, even though it is devoid of fact.

 

[Quantum Windbag]

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.

The only place the phrase well regulated appears in the entire Constitution of the United States of America is in the 2nd Amendment. I am 100% positive those 27 words do not define well regulated, so I would love to know which part of the Constitution you have access to that no one else has ever seen.