California in violation of the second amendment

[Inthemiddle]

Because of the Heller decision, we now have a completely different Second Amendment than the one originally incorporated into the Bill of Rights, one in which the first words might as well not exist.

I would disagree. The second amendment explicitly states at least one reason the right to bear arms is desirable. However, such things do not necessarily limit the degree of protection warranted under a constitutionally protected right. Especially when those rights are understood within the wider scope of the cultural norms of the time, which is necessary to gain a proper context.

For example, the primary interest, inasfar as a just government is concerned, in free speech rights, is to allow the people to sufficiently dictate its will toward and over the government, especially when that will is of a novel character. However, free speech rights, as they have always been understood, do not end at that speech which is directed toward government praise or criticism. Producing pornography is protected under freedom of expression, for example. Free speech rights also ensure that the government cannot prevent me from declaring my own opinions regarding my favorite sports team, or publishing racist material.

The second amendment was adopted under the belief that more important to ensuring national defense than a professional standing military was the ability to summon a militia from among the populace, perhaps a moment's notice. While the federal government was empowered to arm the militia, there was never any guarantee that it WOULD arm the militia sufficiently. This, then, would leave any of the state's potentially vulnerable to invasion without some additional means to produce an armed militia. Yet at the same time, participation in the militia was often a voluntary thing. If war came to a given state's doorstep there was not always a mechanism in place that could compel a person to serve. At the time, it was the norm for militia members to provide their own arms. Indeed it was even legislatively made mandatory near the end of the 18th century. What this all amounts to is a clear indication that the legislative intent behind the second amendment was that people would enjoy an individual right to keep arms, even if it would never come to pass that those people would never come use those arms in the service of their state or the Union.

Also, it is important to recognize that while still under British rule, the British crown attempted to disarm its subjects, and then turned around and attempted to use that disarmed status as an avenue to commit violence against those citizens for political purposes. The founders clearly wanted to establish individual rights to bear arms for the sake of affirming individual's natural rights to life and self defense of their own life.

All of this being understood, the court's affirmation of an individual right to bear arms is a well thought recognition of the legislative intent based on all the knowledge available.

 

[bigrebnc1775]

If you missed it I will not point it out for you.

I am not interested in hearing your uneducated rambles anymore. When I ask a person a question I am asking that person, not you.

You made the claim but yet you can't prove it? I told you I have more knowledge than you do about the second amendment I have proven you wrong because all you post is that I am wrong and uneducated. I am still waiting on something other than your word.

And I will comment on any god damn post I choose to.

 

[C_Clayton_Jones]

Heller was, in my opinion, revision of the Second Amendment to separate the two parts of its language and make a different individual right out of the operative portion than was originally intended. However, the Court is authorized to decide the meaning of the law, not me, so Scalia's opinion counts and mine doesn't.

Just the same, I'll go ahead and express it.

The Second Amendment gives the people an individual right to keep and bear arms for a stated purpose, and that purpose is military: to serve in a well-regulated militia. It does not grant a collective right; there's no doubt that the right is individual; but it does not grant the right to keep and bear arms for any other purpose than serving in the militia -- not for self-defense, not for hunting, not for target-shooting or collecting or any of the other purposes people use firearms for.

This has a number of implications. One of them is on the restrictions on type of weapon that are consistent with the 2A, and this is where the Court's version (a right to keep and bear arms for various non-military purposes, with the original military purpose forgotten) most diverges from the original. If the arms that the people have a right to keep and bear are for the purpose of serving in a well-regulated militia for the defense of a free state, then they must be military weapons. And modern military arms are precisely those that the Court decision implies may be banned, as they are "dangerous and unusual weapons." Interpreted in accord with its stated purpose, the 2A protects a right to keep fully-automatic assault rifles, grenades, machine guns, body armor, flame-throwers, and other weapons useful in military combat, but not handguns for home defense or hunting rifles or target rifles or shotguns or anything of a non-military sort. Yet the Heller decision would exactly reverse this.

Another implication is on the types of restrictions on bearing arms that a government may impose. No restrictions on bearing arms that would prevent their being used for military training or for mustering into the militia on short notice can be allowed; thus, a person must be allowed to keep military arms and ammunition in his home, so that he may assemble with the rest of the militia fully armed and ready for combat. However, almost any other restriction would be permitted. The state or city might not allow a person to carry weapons out of the home except when serving in the militia. It might require that the weapons be unloaded except when serving. It might require trigger locks rendering the weapon useless, provided those locks are removable in a reasonable amount of time consistent with service in the militia.

Because of the Heller decision, we now have a completely different Second Amendment than the one originally incorporated into the Bill of Rights, one in which the first words might as well not exist.

Not quite…

Per Heller the Amendment protects an individual, not collective, right.

It acknowledges a right to self defense and the right to possess a handgun to realize that goal.

The individual right to possess a firearm is not limited to military service.

Heller did not address the issue of open carry. Consequently, as noted correctly, the California law is not un-Constitutional until a court says it is.

Nor was the issue addressed in McDonald, incorporating the Second Amendment to the states.

We’ll see.

 

[Inthemiddle]

And I will comment on any god damn post I choose to.

Okay, go for it. As of now, you are on my ignore list.

 

[bigrebnc1775]

Too many for me to keep up with. Generally those weapons Ca. has chosen to define as "assault weapons". They even outlawed the required Olympic competition pistol.

That's an insufficient answer. If you're going to claim that CA has unconstitutionally banned certain weapons, at least give a few examples.

Ignorance is not weapon please stop using it.

 

[bigrebnc1775]

And I will comment on any god damn post I choose to.

Okay, go for it. As of now, you are on my ignore list.

I knew you would run like a scared little rabbit. Hop along bunny your holes waiting for you.

 

[bigrebnc1775]

Heller was, in my opinion, revision of the Second Amendment to separate the two parts of its language and make a different individual right out of the operative portion than was originally intended. However, the Court is authorized to decide the meaning of the law, not me, so Scalia's opinion counts and mine doesn't.

Just the same, I'll go ahead and express it.

The Second Amendment gives the people an individual right to keep and bear arms for a stated purpose, and that purpose is military: to serve in a well-regulated militia. It does not grant a collective right; there's no doubt that the right is individual; but it does not grant the right to keep and bear arms for any other purpose than serving in the militia -- not for self-defense, not for hunting, not for target-shooting or collecting or any of the other purposes people use firearms for.

This has a number of implications. One of them is on the restrictions on type of weapon that are consistent with the 2A, and this is where the Court's version (a right to keep and bear arms for various non-military purposes, with the original military purpose forgotten) most diverges from the original. If the arms that the people have a right to keep and bear are for the purpose of serving in a well-regulated militia for the defense of a free state, then they must be military weapons. And modern military arms are precisely those that the Court decision implies may be banned, as they are "dangerous and unusual weapons." Interpreted in accord with its stated purpose, the 2A protects a right to keep fully-automatic assault rifles, grenades, machine guns, body armor, flame-throwers, and other weapons useful in military combat, but not handguns for home defense or hunting rifles or target rifles or shotguns or anything of a non-military sort. Yet the Heller decision would exactly reverse this.

Another implication is on the types of restrictions on bearing arms that a government may impose. No restrictions on bearing arms that would prevent their being used for military training or for mustering into the militia on short notice can be allowed; thus, a person must be allowed to keep military arms and ammunition in his home, so that he may assemble with the rest of the militia fully armed and ready for combat. However, almost any other restriction would be permitted. The state or city might not allow a person to carry weapons out of the home except when serving in the militia. It might require that the weapons be unloaded except when serving. It might require trigger locks rendering the weapon useless, provided those locks are removable in a reasonable amount of time consistent with service in the militia.

Because of the Heller decision, we now have a completely different Second Amendment than the one originally incorporated into the Bill of Rights, one in which the first words might as well not exist.

Not quite…

Per Heller the Amendment protects an individual, not collective, right.

It acknowledges a right to self defense and the right to possess a handgun to realize that goal.

The individual right to possess a firearm is not limited to military service.

Heller did not address the issue of open carry. Consequently, as noted correctly, the California law is not un-Constitutional until a court says it is.

Nor was the issue addressed in McDonald, incorporating the Second Amendment to the states.

We’ll see.

Heller left the door open to this type of gun restriction. When they used words like

"It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose"
"The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense."

Is there some rule that people can't be killed while they're outside their home? And one other point Does anyone know the cost of getting a CCW? A poor person will never be able to afford the price there fore would be unable to defend themself

 

[Mr.Nick]

Bans open carry.
I'm a strict Constitutionalist in no way should this ban be allowed to stand as is. The 10th aendment says

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since the states have given the feds the authority to keep in check any violation of the second amendment and the second Amendment 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.

What part of keep and bear arms do these pricks not understand?


SACRAMENTO, Calif. -- California became the fifth state to prohibit openly carrying handguns in public after Gov. Jerry Brown announced Monday that he had signed the ban into law amid heavy opposition from gun enthusiasts.

AB144 by state Assemblyman Anthony Portantino, D-Pasadena, makes it a misdemeanor to carry an exposed and unloaded gun in public or in vehicles, with violators facing up to a year in prison or a potential fine of $1,000 when the law takes effect on Jan 1.
New law bans open carry of handguns in Calif. - Forbes.com

As a libertarian I don't believe it violates the Tenth Amendment because "conceal" is not in the Second Amendment...

If it matters I'm a total supporter of conceal and carry rights.....

However carrying an open exposed weapon is your Second Amendment right without question...

At the same time California is full of shit on just about everything else like suing over prop 8 after the citizens democratically approved the legislation so it's difficult to even take the state seriously (among many others)...

Fucked up times....

 

[bigrebnc1775]

Because of the Heller decision, we now have a completely different Second Amendment than the one originally incorporated into the Bill of Rights, one in which the first words might as well not exist.

I would disagree. The second amendment explicitly states at least one reason the right to bear arms is desirable. However, such things do not necessarily limit the degree of protection warranted under a constitutionally protected right. Especially when those rights are understood within the wider scope of the cultural norms of the time, which is necessary to gain a proper context.

For example, the primary interest, inasfar as a just government is concerned, in free speech rights, is to allow the people to sufficiently dictate its will toward and over the government, especially when that will is of a novel character. However, free speech rights, as they have always been understood, do not end at that speech which is directed toward government praise or criticism. Producing pornography is protected under freedom of expression, for example. Free speech rights also ensure that the government cannot prevent me from declaring my own opinions regarding my favorite sports team, or publishing racist material.

The second amendment was adopted under the belief that more important to ensuring national defense than a professional standing military was the ability to summon a militia from among the populace, perhaps a moment's notice. While the federal government was empowered to arm the militia, there was never any guarantee that it WOULD arm the militia sufficiently. This, then, would leave any of the state's potentially vulnerable to invasion without some additional means to produce an armed militia. Yet at the same time, participation in the militia was often a voluntary thing. If war came to a given state's doorstep there was not always a mechanism in place that could compel a person to serve. At the time, it was the norm for militia members to provide their own arms. Indeed it was even legislatively made mandatory near the end of the 18th century. What this all amounts to is a clear indication that the legislative intent behind the second amendment was that people would enjoy an individual right to keep arms, even if it would never come to pass that those people would never come use those arms in the service of their state or the Union.

Also, it is important to recognize that while still under British rule, the British crown attempted to disarm its subjects, and then turned around and attempted to use that disarmed status as an avenue to commit violence against those citizens for political purposes. The founders clearly wanted to establish individual rights to bear arms for the sake of affirming individual's natural rights to life and self defense of their own life.

All of this being understood, the court's affirmation of an individual right to bear arms is a well thought recognition of the legislative intent based on all the knowledge available.

I would disagree. The second amendment explicitly states at least one reason the right to bear arms is desirable.

Where can I read this in the second amendment?

 

[bigrebnc1775]

Bans open carry.
I'm a strict Constitutionalist in no way should this ban be allowed to stand as is. The 10th aendment says

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since the states have given the feds the authority to keep in check any violation of the second amendment and the second Amendment 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.

What part of keep and bear arms do these pricks not understand?


SACRAMENTO, Calif. -- California became the fifth state to prohibit openly carrying handguns in public after Gov. Jerry Brown announced Monday that he had signed the ban into law amid heavy opposition from gun enthusiasts.

AB144 by state Assemblyman Anthony Portantino, D-Pasadena, makes it a misdemeanor to carry an exposed and unloaded gun in public or in vehicles, with violators facing up to a year in prison or a potential fine of $1,000 when the law takes effect on Jan 1.
New law bans open carry of handguns in Calif. - Forbes.com

As a libertarian I don't believe it violates the Tenth Amendment because "conceal" is not in the Second Amendment...

If it matters I'm a total supporter of conceal and carry rights.....

However carrying an open exposed weapon is your Second Amendment right without question...

At the same time California is full of shit on just about everything else like suing over prop 8 after the citizens democratically approved the legislation so it's difficult to even take the state seriously (among many others)...

Fucked up times....

It violates the second amendment because the second amendment does not dictate how a person is to keep and bear a firearm
Plus the ccw deprives the poor the means to defend themself. Cost of a class and cost of the permit and in some states it's a yearly cost.

Here in North Carolina a CCW permit alone cost 95.00 and the there's the class that can cost a high as 200.00

 

[C_Clayton_Jones]

However carrying an open exposed weapon is your Second Amendment right without question...

It may be, that’s yet to be tested. Until it is laws banning open carry are Constitutional.

At the same time California is full of shit on just about everything else like suing over prop 8 after the citizens democratically approved the legislation so it's difficult to even take the state seriously (among many others)...

1. this has nothing to do with the issue being discussed.
2. See my sig.

Fucked up times....

Yes, when one group of Americans attempts to violate another’s 14th Amendment rights, it is.

 

[Dragon]

I would disagree. The second amendment explicitly states at least one reason the right to bear arms is desirable. However, such things do not necessarily limit the degree of protection warranted under a constitutionally protected right. Especially when those rights are understood within the wider scope of the cultural norms of the time, which is necessary to gain a proper context.

The Second Amendment is the only guarantee of a right in the Constitution that explicitly states the purpose for which the right is guaranteed. The First Amendment may have been widely understood to be necessary primarily to protect political speech, but no such statement of purpose is found in it. The fact that the 2A actually and explicitly states that the reason the right of the people to keep and bear arms shall not be infringed, is because a well-regulated militia is necessary to the security of a free state, implies where the limits on that right should be set -- because Scalia was certainly correct that no rights are unlimited or absolute -- and where they should not.

I am not saying only that Scalia and the Court banned restrictions that, under the original sense of the 2A, should be permitted, but also that it allowed restrictions that under that original sense should be banned. It's clear from the language of the Heller decision that a ban on fully-automatic assault rifles would be consistent with the Second Amendment; this is clearly a "dangerous and unusual" weapon that is of limited utility for common and normal purposes of firearms. Yet it is standard issue in every army in the world. Clearly, if the Second Amendment protects the right to keep any weapons, that would be first on the list. A militia, to be effective, must be armed with weapons competitive against those it is likely to be facing.

The second amendment was adopted under the belief that more important to ensuring national defense than a professional standing military was the ability to summon a militia from among the populace, perhaps a moment's notice. While the federal government was empowered to arm the militia, there was never any guarantee that it WOULD arm the militia sufficiently. This, then, would leave any of the state's potentially vulnerable to invasion without some additional means to produce an armed militia.

I agree with this completely. That is indeed exactly why the Second Amendment is in the Bill of Rights: so that a state, or the United States, will have the means to defend itself against invasion or insurrection without having to keep a standing army.

Yet at the same time, participation in the militia was often a voluntary thing. If war came to a given state's doorstep there was not always a mechanism in place that could compel a person to serve. At the time, it was the norm for militia members to provide their own arms. Indeed it was even legislatively made mandatory near the end of the 18th century. What this all amounts to is a clear indication that the legislative intent behind the second amendment was that people would enjoy an individual right to keep arms, even if it would never come to pass that those people would never come use those arms in the service of their state or the Union.

Again, I agree with this. Where I part with Heller is not in the assertion that the Second Amendment protects an individual right. It does. Where I disagree with Justice Scalia is in regard to exactly what individual right it protects. It seems to me that in dismissing the statement of purpose in the Second Amendment, the Court has changed this right to keep and bear arms for the purpose of serving in a well-regulated militia, into a right to keep and bear arms for other purposes -- and denied the right to keep and bear arms appropriate to militia service.

Now, at the same time, I recognize the good sense of the Court's decision as a practical matter. The unavoidable truth is that the militia is an anachronism. We don't have one, really, any more. We have a standing professional army, the most powerful in the world. It would be dangerous and incompatible with any reasonable concept of public safety to allow widespread private ownership of military-grade weapons. At the same time, the possession of less-destructive weapons appropriate to self-defense, hunting, target shooting, etc. is already widespread and important to a great many people. It would make a great deal of sense if by amendment to the Constitution we abolished the Second Amendment and replaced it with a right much like the one the Court has re-defined for us.

But that should really be done by the states, not by the Supreme Court.

 

[9thIDdoc]

Just one thing to say here, a quote from D.C. v. Heller, which clarified the Second Amendment as an individual right:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

It is therefore not obvious that California is violating the 2A. The principle of reasonable restrictions on firearms has been upheld by the Court. Whether these specific restrictions would pass muster I am not qualified to say, but the mere fact that restrictions are imposed does not automatically mean that they would not.

"Reasonable restrictions" can in no way be interpreted to include outlawing ownership by people who have not been found insane or guiltly of a crime. Otherwise you are dening a basic right without any sort of due process. So, yes, it is obvious.

 

[Dragon]

"Reasonable restrictions" can in no way be interpreted to include outlawing ownership by people who have not been found insane or guiltly of a crime. Otherwise you are dening a basic right without any sort of due process. So, yes, it is obvious.

The new California law does not ban ownership of firearms at all. It bans open carry, except in certain circumstances. The Heller decision recognized that governments may place restrictions on where and how firearms may be carried. Whether an open carry ban oversteps reasonable restrictions is not obvious and will probably have to be decided in court.

 

[9thIDdoc]

The Second Amendment gives the people an individual right to keep and bear arms for a stated purpose, and that purpose is military: to serve in a well-regulated militia. It does not grant a collective right; there's no doubt that the right is individual; but it does not grant the right to keep and bear arms for any other purpose than serving in the militia -- not for self-defense, not for hunting, not for target-shooting or collecting or any of the other purposes people use firearms for.

An explanation is by no means a limitation. No limitation is written or implied.
A militia is a group of armed civilians; not part of a standing military.

 

[IndependntLogic]

Bans open carry.
I'm a strict Constitutionalist in no way should this ban be allowed to stand as is. The 10th aendment says

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So then you praised Obama for cutting funds to NASA?


Since the states have given the feds the authority to keep in check any violation of the second amendment and the second Amendment 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.

By "well-regulated", does that mean every gun owner has to be a member of the national guard? Some kind of government oversight program? The Crips? What does the "well-regulated" & militia thing mean?

What part of keep and bear arms do these pricks not understand?



SACRAMENTO, Calif. -- California became the fifth state to prohibit openly carrying handguns in public after Gov. Jerry Brown announced Monday that he had signed the ban into law amid heavy opposition from gun enthusiasts.

AB144 by state Assemblyman Anthony Portantino, D-Pasadena, makes it a misdemeanor to carry an exposed and unloaded gun in public or in vehicles, with violators facing up to a year in prison or a potential fine of $1,000 when the law takes effect on Jan 1.
New law bans open carry of handguns in Calif. - Forbes.com

I own an old Glock that I could definitely use to defend any attacker, so long as they were polite enough to hold still for several seconds within ten feet of me. It would also be nice if they were fat.

So the in public thing? Hmmm. Seems odd. I mean, if someone's carrying openly, the odds are pretty good they're all straight and narrow. So why ban? It's the guys without a CCW that are carrying under a flannel shirt, they should be concerned with.
As far as on a car seat? Why have one there?

I think everyone who owns a gun should just have a notation put on their driver's license or ID. AGO Authorized Gun Owner. I have to prove I can safely handle a car before I can even buy one. If I get it revoked, the moment I'm caught behind a wheel, life gets ugly. Why not the same thing for guns? Then there's no hassle carrying them.

 

[Inthemiddle]

Again, I agree with this. Where I part with Heller is not in the assertion that the Second Amendment protects an individual right. It does. Where I disagree with Justice Scalia is in regard to exactly what individual right it protects. It seems to me that in dismissing the statement of purpose in the Second Amendment, the Court has changed this right to keep and bear arms for the purpose of serving in a well-regulated militia, into a right to keep and bear arms for other purposes -- and denied the right to keep and bear arms appropriate to militia service.

I don't see the Heller case supporting that at all. The court took notice of the original text, and subsequent revisions, of the second amendment, and also incorporated the understanding of natural rights have have always been recognized as inherent in the people. There is no evidence that, at the time of adoption of the second amendment, there was ever any belief that a person's right to bear arms was predicated on the possibility of serving as part of the militia. As I explained above, such service was often an optional thing. And a person could change that decision with different incidents. You might decide to serve in one conflict, decline to serve in the next conflict, and then decide to serve again in the next conflict. Or, it could entirely come to pass that over one's entire lifetime one there might not ever arise a need for you to take up your weapon in militia service. This was understood as the normal way of things at the time of the adoption of the second amendment, and simply cannot be excised from an understanding of the legislative intent. The intent of the second amendment was not to create a right to bear arms predicated upon a requirement that one exercise that right in the militia. It was to enable a person to serve, or not to serve, perhaps at a moment's notice, based upon that individual's own choosing.

As I also explained, the court understood that the legislative intent also, by necessity, had to incorporate the natural rights to life and self defense that the constitution inherently upholds. The second amendment, then declares two things. It declares an interest of the people to preserve an individual right, and it declares an interest of the government to assure that right to the people. But there is NOTHING in the history of the second amendment, in its several revisions before final adoption nor within the context of life at the time of its adoption, that implies the legislative intent was to predicate the rights of the individual upon service to the government. In fact, such a position would likely have been considered repugnant to the founders considering the politics that lead to the revolution (as evidenced in the 3rd amendment's prohibition against quartering).

The unavoidable truth is that the militia is an anachronism. We don't have one, really, any more. We have a standing professional army, the most powerful in the world. It would be dangerous and incompatible with any reasonable concept of public safety to allow widespread private ownership of military-grade weapons.

I am inclined to agree that the second amendment is somewhat dated for relevant modern applications. But it won't be changed in our lifetimes. However, I don't think your concerns about public safety are relevant. The second amendment doesn't protect an individual right to keep "unusual" weapons. You have a basic right to keep "normal" weapons. Hence the ban on full auto guns or rifles, certain types of ammunition, and other types of weapons. I don't know of any "unusually" dangerous weapon that the second amendment is currently believed to protect.

 

[Dragon]

An explanation is by no means a limitation. No limitation is written or implied.
A militia is a group of armed civilians; not part of a standing military.

As I noted above, the Heller decision doesn't expand the protection of the Second Amendment beyond its military purposes so much as change it something other than those purposes. It seems to imply that a state can ban exactly those weapons that, under a militia understanding of the 2A, it should not be able to ban.

A perfect example is a fully-automatic military-grade assault rifle. All armies have them as standard equipment. If the right to keep and bear arms is to be of any use at all for national defense, it must include weapons like this. Yet the Heller decision holds that states may ban "dangerous and unusual" weapons, which would certainly include automatic assault rifles.

If the Court had recognized the original intent of the 2A as stated in the law itself, it might have allowed states to ban handguns but never military assault rifles -- yet it ruled exactly in the reverse, that states can't ban handguns but can ban military assault rifles. In this, it legislated, and in fact amended the Constitution, from the bench.

 

[Dragon]

I don't see the Heller case supporting that at all. The court took notice of the original text, and subsequent revisions, of the second amendment, and also incorporated the understanding of natural rights have have always been recognized as inherent in the people. There is no evidence that, at the time of adoption of the second amendment, there was ever any belief that a person's right to bear arms was predicated on the possibility of serving as part of the militia.

Everyone responding to my thoughts here seems to be making the same mistake. You are missing the way in which the Court has restricted (or more exactly, allowed state governments to restrict -- the Court didn't restrict it on its own authority) the right to keep and bear arms. It's arguable as you have done here that the right to keep and bear arms is not predicated on service in the militia, but it can't be argued that the 2A, as written and reasonably interpreted, does not guarantee the right to keep and bear arms appropriate to militia service -- whatever else it may or may not protect.

That is: maybe the Second Amendment guarantees you the right to have guns for other purposes, too. But there's no doubt AT ALL that it guarantees you the right to have guns appropriate to serve in the militia.

And yet, as interpreted by the Heller decision, now it doesn't.

I am inclined to agree that the second amendment is somewhat dated for relevant modern applications. But it won't be changed in our lifetimes. However, I don't think your concerns about public safety are relevant.

Actually, that's what I think was behind the Court's decision in Heller to permit governments to ban "dangerous and unusual weapons."

The second amendment doesn't protect an individual right to keep "unusual" weapons. You have a basic right to keep "normal" weapons. Hence the ban on full auto guns or rifles, certain types of ammunition, and other types of weapons. I don't know of any "unusually" dangerous weapon that the second amendment is currently believed to protect.

Well, since the Heller decision, that's true. But if the (or at least one) purpose of the Amendment was to guarantee an armed militia, then yes, it DID protect the right to have "dangerous and unusual" weapons -- those above all others.

As I said, in strict common sense, I agree that the Heller decision is good policy; I don't want to see lots of military guns in private ownership. I think that would be a nightmare. But that is what the Second Amendment was meant to guarantee, if it guaranteed anything.

 

[9thIDdoc]

"Reasonable restrictions" can in no way be interpreted to include outlawing ownership by people who have not been found insane or guiltly of a crime. Otherwise you are dening a basic right without any sort of due process. So, yes, it is obvious.

The new California law does not ban ownership of firearms at all. It bans open carry, except in certain circumstances. The Heller decision recognized that governments may place restrictions on where and how firearms may be carried. Whether an open carry ban oversteps reasonable restrictions is not obvious and will probably have to be decided in court.

And I was not referening the new law but pointing out a continuing pattern of unconstitutional abuses by Ca.

“ASSAULT WEAPONS”, .50 CALIBER BMG
RIFLES AND MAGAZINES
It is unlawful to offer for manufacture, sale, give or
lend any “assault weapon” or .50 caliber BMG rifle. It is
unlawful to possess an “assault weapon” or a .50 caliber
BMG rifle unless it is properly registered with the state.
The registration period for “assault weapons” and .50 caliber
BMG rifles has ended.

This would not be any big deal except that this does not refer to actual assualt weapons (that are capable of full automatic fire) but to a list of commonly used weapons using some abitrary criteria of their own devising.