'Assault weapon' bans: Constitutional?

[Quantum Windbag]

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.

Of course laws can be enforced which restrict the right to bear arms. One would have to be insane to desire otherwise. Do you want your neighbor mixing up a batch of ebola virus because it can be defined as "arms"? There is no such thing as an unrestricted right and there should not be.

How does the government stop people from mixing up batches of Ebola? Do they have a magical virus detector that can tell when anyone finds something deadly?

 

[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.

You are confusing the 21st century word well regulate, government control
With the 18th century word well regulate to be as expected in working order
Please try and keep up.

 

[Quantum Windbag]

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?

Where, exactly, does that say that militias are banned? Do you know what the term "Keep troops" means?

 

[Vidi]

Except the Constitution is a "living" document, which means it can be changed.

Also, do we really think the Founders envisioned a day when someone could walk into a theatre and kill or wound 71 people? What was it 1825 before we had a mulitshot revolver? I know the Colt wasnt until 1835. Gatling gun was 1862 nearly 100 years after the Declaration of Independence. The Founders were great men, but they were clairvoyant.

The idea that their 17th century solutions could be applied to ALL future problems is just...well...a bit misguided, isnt it?

Unless the government wants to explore regulatory roadblocks as an option to limit the number of these weapons in public hands, it would likely take a constitutional amendment to repeal or rewrite the 2nd amendment.

A constitutional amendment limiting the rights of the 2nd Amendment is not likely to pass.

The Constitution is NOT a living document.

Of coruse it is. Thats what the Amendment process is all about.

If it WASNT a living document. Prohibition would still exist.

 

[ItsjustmeIthink]

Unless the government wants to explore regulatory roadblocks as an option to limit the number of these weapons in public hands, it would likely take a constitutional amendment to repeal or rewrite the 2nd amendment.

A constitutional amendment limiting the rights of the 2nd Amendment is not likely to pass.

The Constitution is NOT a living document.

Of coruse it is. Thats what the Amendment process is all about.

If it WASNT a living document. Prohibition would still exist.

Right.

I really do think the framers wrote Artcile V for reasons JUST EXACTLY like this one here.

 

[Two Thumbs]

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.

Any restriction on any arms is unconstitutional.

but we no longer have the right to bear arms, we are 'left' with the privileged to own certain handguns and approved ammo only.

Anyone that claims we have the right to bear arms is lying or kidding themselves.

 

[FA_Q2]

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.

Any restriction on any arms is unconstitutional.

but we no longer have the right to bear arms, we are 'left' with the privileged to own certain handguns and approved ammo only.

Anyone that claims we have the right to bear arms is lying or kidding themselves.

I would not go that far. I know a few people that could fight their own wars with all the ordinance they LEGALLY own. Sure, the rit has been badly abridged by the government, like many of our other rights, but it is not nonexistent. You would also be supposed what you can own when you get away from the population centers and move to BFE.

 

[PratchettFan]

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.

Of course laws can be enforced which restrict the right to bear arms. One would have to be insane to desire otherwise. Do you want your neighbor mixing up a batch of ebola virus because it can be defined as "arms"? There is no such thing as an unrestricted right and there should not be.

How does the government stop people from mixing up batches of Ebola? Do they have a magical virus detector that can tell when anyone finds something deadly?

How does the government prevent people from committing pre-meditated murder? Are you suggesting that if we can't prevent a crime from happening we should just make it legal?

It's against the law to mix up the virus. Do you actually want to change that?

 

[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?

Where, exactly, does that say that militias are banned? Do you know what the term "Keep troops" means?

Where, exactly, did I say militias were banned?

Please tell me what "keep troops" means.

 

[PratchettFan]

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.

You are confusing the 21st century word well regulate, government control
With the 18th century word well regulate to be as expected in working order
Please try and keep up.

If it pleases you to just make the stuff up, you have that right. I think we have covered that before.

 

[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.

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.

There is another thread going that put forth the idea that we either have a strict interpretation of the Constitution or we just toss it out - and that is a simple question. I think this thread clearly demonstrates that there is no such thing as a "strict interpretation" and no question involving the Constitution is ever simple.

I am not saying weapons are acceptable for some and not for others. Please don't put words in my mouth. I think there are weapons which clearly should not be available to the general public at all. I don't think Bill Gates should have his own sub fully armed with ICBMs with nuclear warheads. I think that is a bad idea. The 2nd amendment refers to "arms", not "firearms" or "guns".

If someone wants a .50 sniper rifle, I have no problem with them having it. Full auto heavy machine guns, go for it. Personally, I think the number of people out there who would actually cause any problems with those weapons is very small and I am willing to accept that risk. How many people can someone with a BAR take out before getting killed? 50 or 60 maybe. There are 300 million of us and I will take those odds. But I am just me. If the state - not me - decides that such weapons are not acceptable then they have the authority to restrict them or even ban them. So long as it is not an across the board ban on all weapons. The SC has made that clear.

The purpose of the 2nd amendment is a well regulated militia. The only reason citizens have the right to keep and bear arms is to support a militia. Arguably, the nature of the militia has change but the 2nd amendment has not. But a militia is not, as some people think, a machine. You don't calibrate it. A militia is a group of citizens and thus regulating a militia means regulating citizens. The state has the authority to regulate and the SC has never issued a single decision which indicates it does not have the authority.

Some states are going to regulate more than other states. That is the nature of state's rights.

 

[PratchettFan]

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.

Well, that would depend upon the size of the group I supose. Treason is defined by the Constitution as levying war against the United States. So if a militia were to do that, that is treason by definition. If it were just a group of people who decided to call themselves a militia, then it would probably just be your standard criminal activity.

 

[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.

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.

It does not conflict with Heller. You are reading way too much into Heller. Further, the fact that bans exist does make him wrong. IMHO, reality trumps opinion every time.

 

[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.

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.

I'm sorry. Where in the 2nd amendment does it say "carry"?

 

[PratchettFan]

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?

According to the Supreme Court. From the much quoted Heller decision:

"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. "

 

[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?

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.

I agree. As a militia which has not been called up, the states have the right to regulate them. A militia consists of the entire citizenry of a specific age and sex. So the states have the right to determine how that citizenry is to be armed or - in reality - not armed.

However, a state cannot call up the militia without the permission of the Congress and Congress can, in fact, take the entire militia if it so pleases. There is nothing in Article 1 which limits the Congress in this regard. For practical purposes, they would not. Since the state can only call up troops with Congressional permission (barring invasion or insurrection) the militia is under federal control.

What you are arguing is basically like saying that since a platoon is under the command of a Lt., is does not fall under the command of the general.

 

[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.

Any restriction on any arms is unconstitutional.

but we no longer have the right to bear arms, we are 'left' with the privileged to own certain handguns and approved ammo only.

Anyone that claims we have the right to bear arms is lying or kidding themselves.

You are certainly free to hold that opinion. The Supreme Court, however, does not agree. I think I'll go with them on this.

 

[PratchettFan]

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.

You are confusing the 21st century word well regulate, government control
With the 18th century word well regulate to be as expected in working order
Please try and keep up.

You are engaged in wishful thinking, so I won't expect you to keep up.

 

[9thIDdoc]

The government is itself governed by the Constitution. Should it abrogate the Constitution it would no longer hold power legally and it would be treason to do other than oppose it and replace it with a legal one.

 

[PratchettFan]

The government is itself governed by the Constitution. Should it abrogate the Constitution it would no longer hold power legally and it would be treason to do other than oppose it and replace it with a legal one.

Well, since that is not happening it really is a moot point.