Ban on ‘assault weapons’ – Constitutional?

[DaGoose]

Actually, no - when dealing with an issue like this, you look up case law, if any.

Fortunately, that case law exists.
"Arms" in the context of the 2nd was defined by the court to mean any weapon "of common use" and "part of the ordinary equipment" that was suitable for service in the militia.

You can ignore this if you want, but it -is- the current legal holding, and so, in a discussion of this topic, you do so at your peril.

I'm sure they had case law to uphold slavery and Jim Crow laws. Are you saying you agree with that?

Red herring. My statement stands.

Ok. Case law trumps the Consitution. And you agree with that. Got it.

 

[M14 Shooter]

I'm sure they had case law to uphold slavery and Jim Crow laws. Are you saying you agree with that?

Red herring. My statement stands.

Ok. Case law trumps the Consitution. And you agree with that. Got it.

I'm sorry - you apparently aren't able to take this cnversation seriously.
Please leave room for those that are.

 

[DaGoose]

Red herring. My statement stands.

Ok. Case law trumps the Consitution. And you agree with that. Got it.

I'm sorry - you apparently aren't able to take this cnversation seriously.
Please leave room for those that are.

And I'm sorry that you cannot understand that a Constitutional Right to Bear Arms is just that, a CONSTITUTIONAL RIGHT.

 

[M14 Shooter]

Ok. Case law trumps the Consitution. And you agree with that. Got it.

I'm sorry - you apparently aren't able to take this cnversation seriously.
Please leave room for those that are.

And I'm sorry that you cannot understand that a Constitutional Right to Bear Arms is just that, a CONSTITUTIONAL RIGHT.

On the contrary - I certainly do. Absolutely true. No question.
My statements still stand.

 

[Dragon]

Nothing in Heller eliminates the 'original stated purpose' of the 2nd Amemdment.

I disagree. The Second amendment is the only part of the BoR that does state its purpose: "A well-regulated militia, being necessary to the security of a free state." As you pointed out yourself, the 2A was meant to protect the keeping and bearing of military weapons for use in the militia, thus obviating a need for a professional standing army. At the time it was ratified, that meant a muzzle-loading smooth-bore flintlock musket with a bayonet socket. Today, it means an assault rifle, hand grenades, body armor, and similar gear borne by the U.S. Army. The Heller decision, by implying that weapons like these could perhaps be banned, while insisting that weapons more useful for target shooting, hunting, or self-defense in an urban setting could not, has changed the 2A from its original intention to the guarantee of a different right to bear arms for different purposes.

Heh -- here's a nice trivia question for anyone interested. Who first coined the term "assault rifle" and to what weapon did it apply?

Germans. StG44

To be precise, Adolf Hitler personally. That was indeed the weapon.

 

[ladyliberal]

That some justices voted against the decision mens nothing - the decision is in place and therefore stands until overturned. Until it is overturned, you do not have the luxury of ignoring it simple because it did not go 9-0.


1: They said no such thing
2: Even if so, it is irrelvant to the issue of 'assault weapons', which are not machine guns.

Now, please present your argument that an AW ban would pass muster.

I didn't ignore the majority decision in Heller, in fact I cited it. However, you did ask for an argument that an assault weapon ban would be constitutional. I continue to think that the minority opinion in Heller is such an argument.

Well, OK, but an argument that ends in defeat as it is contrary to current decisions.
The object here is to take the current decisions into account when forming your argument, which is why they were included/cited/described.


"Assault weapons' are suitable for use in any of the usual andlegal ways a firearm might be used. They may not be as effective in a particular role as purpose-built firearms, but they are still suitable. Its hard to see how a weapon that is supposedly designed only to kill cannot be effective in self-defense situations.

I believe you are in error in saying that the Heller majority opinion did not address machine gun bans. It reads in part:

We therefore read Miller [which they did not overturn] to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
That accords with the historical understanding of the
scope of the right, see Part III, infra.25

That would certainly include machine guns. My impression is that the court deliberately avoided ruling on where the line between such constitutionally necessary and unnecessary weapons could be drawn, and specifically on whether assault weapons would necessarily be permissible.

Excpet that machineguns - and to a significantly greater degree, assault weapons - ARE posessed by a significant number of citizens for lawful purposes - indeed, I read once that there are more machineguns in the hands of provate citizens than owne by the US military.

And so, even if your argument here does hold water for machineguns, it does not for 'assault weapons' as far more people have an use them for 'lawful purposes'.

I think we are largely in agreement now. I agree that under Heller and the Chicago case blanket handgun bans are generally unconstitutional. However, I feel quite comfortable disagreeing with the SC here. I think it's perfectly appropriate, if largely idle, for ordinary citizens to develop their own constitutional interpretations independently of operative Supreme Court rulings.

I agree that assault weapons can be used for legal purposes, and for self defense. I have no idea how often they are and how often they are used for other purposes. I have no idea whether the current Supreme Court would strike down an assault weapon ban and I doubt they do either. In any event I doubt they would argue that assault weapons aren't more dangerous than non-automatic handguns. From what little I know of guns it seems easily demonstrated that assault weapons are generally, though not uniformly, more dangerous than other types of handguns in the sense that they can be used to shoot people more rapidly.

In any event, regardless of what the Supreme Court decides in the future, current assault weapons bans must be given the presumption of constitutionality and duly enforced.

 

[jillian]

In Heller, the court struck the DC ban on handguns
In McDonald, the court applied the Heller decision to the states and struck the Chicago ban on handguns.

In both instances, the court struck the bans absent any consideration of rational basis, intermediate scrutiny or strict scrutiny – in effect, they ruled that bans on handguns, on their face, violate the 2nd amendment.
Handguns are, by far, the class of firearm most often used in crime.
Washington DC and Chicago have crime rates considerably higher than the average across the rest of the US.

Given all this, can you present an argument that a ban on ‘assault weapons’, used –far- less often in crimes across a –considerably- larger area, is constitutional?

Is someone seriously talking about another AWB? you are aware that the AWB sundowned, right?

 

[eflatminor]

Is someone seriously talking about another AWB?

Yes:

Richard Lugar
Richard Lugar Voices Support For Assault Weapons Ban (VIDEO)

Dianne Feinstein
Sen. Feinstein On Assault Weapons Ban: "I Wouldn't Bring It Up Now" | Video Cafe

Carolyn McCarthy
McCarthy seeks ban on weapon used in Arizona

Joe Biden
Joe Biden on Gun Control

Eric Holder
Obama to Seek New Assault Weapons Ban - ABC News

LA Mayor Villaraigosa
L.A. mayor and police chief back federal ban on large-capacity ammunition magazines - latimes.com

NY Mayor Bloomberg
The PJ Tatler » Mayor Bloomberg, States

Chuck Schumer
Senator Charles E. Schumer

There are LOTS more, I could go on...but I think you get the idea.

 

[ladyliberal]

In Heller, the court struck the DC ban on handguns
In McDonald, the court applied the Heller decision to the states and struck the Chicago ban on handguns.

In both instances, the court struck the bans absent any consideration of rational basis, intermediate scrutiny or strict scrutiny – in effect, they ruled that bans on handguns, on their face, violate the 2nd amendment.
Handguns are, by far, the class of firearm most often used in crime.
Washington DC and Chicago have crime rates considerably higher than the average across the rest of the US.

Given all this, can you present an argument that a ban on ‘assault weapons’, used –far- less often in crimes across a –considerably- larger area, is constitutional?

Is someone seriously talking about another AWB? you are aware that the AWB sundowned, right?

Actually, Breyer's dissent in Heller (http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf) notes that there are a number of jurisdictions in the US with active assault weapons bans. Certainly, there's no talk of new federal legislation.

 

[RetiredGySgt]

In Heller, the court struck the DC ban on handguns
In McDonald, the court applied the Heller decision to the states and struck the Chicago ban on handguns.

In both instances, the court struck the bans absent any consideration of rational basis, intermediate scrutiny or strict scrutiny – in effect, they ruled that bans on handguns, on their face, violate the 2nd amendment.

Handguns are, by far, the class of firearm most often used in crime.
Washington DC and Chicago have crime rates considerably higher than the average across the rest of the US.

Given all this, can you present an argument that a ban on ‘assault weapons’, used –far- less often in crimes across a –considerably- larger area, is constitutional?

Any "infringement" on any citizens "rights to bear arms" , can and will be considered unconstitutional. An assault weapons ban is an infringement on your right as a citizen to
bear that perticular arms, and can and is to be considered unconstitutional.
Therefore, an Assault weapons ban is unconstitutional.

I dont disagree with this argument....
But I do believe the actual "need" for an assault weapon may water that argument down.
Is it unconstitutional to ban a tank? A P-51D heavy with 2x1000 eggs, 6 HVAR's and both cannons and BB's for personal enjoyment?

The Supreme Court ruled in 1939 that a weapon must be of use , in use or previously used by the military to be protected by the 2nd Amendment. Supposed " assault weapons" are in fact in use by the military so are in fact protected by the 2nd Amendment.

A tank is not an individual arm and as such is not protected by the 2nd Amendment. An Air craft is also not an individual arm and again not protected by the 2nd Amendment.

 

[Dot Com]

In Heller, the court struck the DC ban on handguns
In McDonald, the court applied the Heller decision to the states and struck the Chicago ban on handguns.

In both instances, the court struck the bans absent any consideration of rational basis, intermediate scrutiny or strict scrutiny – in effect, they ruled that bans on handguns, on their face, violate the 2nd amendment.

Handguns are, by far, the class of firearm most often used in crime.
Washington DC and Chicago have crime rates considerably higher than the average across the rest of the US.

Given all this, can you present an argument that a ban on ‘assault weapons’, used –far- less often in crimes across a –considerably- larger area, is constitutional?

Details unfold in shots fired at White House - Yahoo! News

Investigators believe Ortega fired at the White House from his vehicle Friday, according to an official with knowledge of the investigation. Gunshots were reported that night on Constitution Avenue about 9:30 p.m. Soon after, U.S. Park Police found an abandoned vehicle, the assault rifle inside it, near a bridge leading out of the nation's capital to Virginia. The car led investigators to Ortega.

 

[C_Clayton_Jones]

Heller is predicated on two legal theories: ‘original understanding’ of the Amendment at the time of its ratification – as the Framers left little, if any, evidence on the subject – and the doctrine of the right to ‘self-defense’:

That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.

DISTRICT OF COLUMBIA v. HELLER

Indeed, just as the right to privacy prohibits the banning of abortions, so too does the right to self-defense establish the individual right to bear arms, as opposed to a collective right.

Heller also reaffirmed Miller, in the understanding of ‘weapons in common use’:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”

DISTRICT OF COLUMBIA v. HELLER

Here the Majority in essence states that the NFA restrictions are Constitutional, or at least are likely to be upheld as such in a challenge. Un-Constitutional, therefore, would be restrictions on weapons in ‘common use’; imagine citizens today being called up for some type of civilian militia service – most would be armed with ARs, AK-type rifles, and other semi-automatic weapons some incorrectly perceive as ‘assault weapons.’

Consequently, the AWB of 1994, if made law again today, would obviously be un-Constitutional per Miller and Heller.

You don't like it? Then prove me wrong using only words from the CONSTITUTION. Not yours or anyone else's interpretation of it.

Save the Supreme Court, they do get to interpret it.

That some justices voted against the decision mens nothing - the decision is in place and therefore stands until overturned. Until it is overturned, you do not have the luxury of ignoring it simple because it did not go 9-0.

True and agreed, but you and other conservatives need to remember this when addressing such cases as Griswold/Roe/Casey, Plyler, Romer, and Lawrence.

Ok. Case law trumps the Consitution. And you agree with that. Got it.

Um, no – case law is the Constitution, the Constitution exists only on the context of its case law.

I disagree. The Second amendment is the only part of the BoR that does state its purpose: "A well-regulated militia, being necessary to the security of a free state." As you pointed out yourself, the 2A was meant to protect the keeping and bearing of military weapons for use in the militia, thus obviating a need for a professional standing army. At the time it was ratified, that meant a muzzle-loading smooth-bore flintlock musket with a bayonet socket. Today, it means an assault rifle, hand grenades, body armor, and similar gear borne by the U.S. Army. The Heller decision, by implying that weapons like these could perhaps be banned, while insisting that weapons more useful for target shooting, hunting, or self-defense in an urban setting could not, has changed the 2A from its original intention to the guarantee of a different right to bear arms for different purposes.

That’s the snag, there is no ‘original intent’ as to the Second Amendment, as in documents by the Framers written during the Foundation Era explaining what was intended. Hence Scalia’s necessity to contrive ‘original understanding’ to justify the ruling.

The Supreme Court ruled in 1939 that a weapon must be of use , in use or previously used by the military to be protected by the 2nd Amendment. Supposed " assault weapons" are in fact in use by the military so are in fact protected by the 2nd Amendment.

No, not ‘the military,’ but weapons in common use then – or now – where civilians might muster for militia service.

 

[ABikerSailor]

Yanno..........

I don't really think that the Founding Fathers would have approved assault weapons if they knew what they are.

 

[RetiredGySgt]

Yanno..........

I don't really think that the Founding Fathers would have approved assault weapons if they knew what they are.

I disagree. The entire point of the 2nd was and is to ensure a Militia, separate and distinct from an organized Army exists in the "several" States. Supposed assault weapons are nothing more then semi automatic weapons that look like military weapons, the very weapons one would WANT in the militia. Most are easily modified to be full auto or selective fire, depending on make and model.

 

[M14 Shooter]

In Heller, the court struck the DC ban on handguns
In McDonald, the court applied the Heller decision to the states and struck the Chicago ban on handguns.

In both instances, the court struck the bans absent any consideration of rational basis, intermediate scrutiny or strict scrutiny – in effect, they ruled that bans on handguns, on their face, violate the 2nd amendment.
Handguns are, by far, the class of firearm most often used in crime.
Washington DC and Chicago have crime rates considerably higher than the average across the rest of the US.

Given all this, can you present an argument that a ban on ‘assault weapons’, used –far- less often in crimes across a –considerably- larger area, is constitutional?

Is someone seriously talking about another AWB? you are aware that the AWB sundowned, right?

Oh look! It's my favoprite fraud with one of her typically vapid and meaningless drive-by postings!!
Cleaned any good courthouses lately?

 

[Wry Catcher]

In Heller, the court struck the DC ban on handguns
In McDonald, the court applied the Heller decision to the states and struck the Chicago ban on handguns.

In both instances, the court struck the bans absent any consideration of rational basis, intermediate scrutiny or strict scrutiny – in effect, they ruled that bans on handguns, on their face, violate the 2nd amendment.

Handguns are, by far, the class of firearm most often used in crime.
Washington DC and Chicago have crime rates considerably higher than the average across the rest of the US.

Given all this, can you present an argument that a ban on ‘assault weapons’, used –far- less often in crimes across a –considerably- larger area, is constitutional?

The bans violated the second amendment, and the courts ruling violated common sense.

 

[M14 Shooter]

I didn't ignore the majority decision in Heller, in fact I cited it. However, you did ask for an argument that an assault weapon ban would be constitutional. I continue to think that the minority opinion in Heller is such an argument.

Well, OK, but an argument that ends in defeat as it is contrary to current decisions.
The object here is to take the current decisions into account when forming your argument, which is why they were included/cited/described.
"Assault weapons' are suitable for use in any of the usual andlegal ways a firearm might be used. They may not be as effective in a particular role as purpose-built firearms, but they are still suitable. Its hard to see how a weapon that is supposedly designed only to kill cannot be effective in self-defense situations.

I believe you are in error in saying that the Heller majority opinion did not address machine gun bans. It reads in part:

That would certainly include machine guns. My impression is that the court deliberately avoided ruling on where the line between such constitutionally necessary and unnecessary weapons could be drawn, and specifically on whether assault weapons would necessarily be permissible.

Excpet that machineguns - and to a significantly greater degree, assault weapons - ARE posessed by a significant number of citizens for lawful purposes - indeed, I read once that there are more machineguns in the hands of provate citizens than owne by the US military.

And so, even if your argument here does hold water for machineguns, it does not for 'assault weapons' as far more people have an use them for 'lawful purposes'.

I think we are largely in agreement now. I agree that under Heller and the Chicago case blanket handgun bans are generally unconstitutional.

Generally? Given Heller, when do you suppose a blanket ban would be upheld?

However, I feel quite comfortable disagreeing with the SC here. I think it's perfectly appropriate, if largely idle, for ordinary citizens to develop their own constitutional interpretations independently of operative Supreme Court rulings.

Well, that's fine - -but the mission here is to create an argument that fits within current law. You can disagree with the ruling, but it maintains its force in the argument you are tasked to present.

I agree that assault weapons can be used for legal purposes, and for self defense. I have no idea how often they are and how often they are used for other purposes.

Given your ignorance of the specifics of their operation and use, it will be nigh imposible for you to create a sound argument as to the constitutionality of a ban on them.

In any event, regardless of what the Supreme Court decides in the future, current assault weapons bans must be given the presumption of constitutionality and duly enforced.

Think so? The court has declared the right to arms a fundamental, constitututionally protected right. As such, any restrictions on it, like all other such rights, will be put to a test of strict scrutiny, where the the restriction is held as -UN-consitutiuonal until the relevant state entity can show a compelling interest in affecting said restriction and that the restriction in question is the least restritcive means of achieving that end.

Sounds like you are unable to create the argument asked of you.
Fear not, for it is a dunting task, and you are not alone.

 

[M14 Shooter]

Is someone seriously talking about another AWB?

Yes:

Richard Lugar
Richard Lugar Voices Support For Assault Weapons Ban (VIDEO)

Dianne Feinstein
Sen. Feinstein On Assault Weapons Ban: "I Wouldn't Bring It Up Now" | Video Cafe

Carolyn McCarthy
McCarthy seeks ban on weapon used in Arizona

Joe Biden
Joe Biden on Gun Control

Eric Holder
Obama to Seek New Assault Weapons Ban - ABC News

LA Mayor Villaraigosa
L.A. mayor and police chief back federal ban on large-capacity ammunition magazines - latimes.com

NY Mayor Bloomberg
The PJ Tatler » Mayor Bloomberg, States

Chuck Schumer
Senator Charles E. Schumer

There are LOTS more, I could go on...but I think you get the idea.

Don't worry - she won't be back.

 

[M14 Shooter]

In Heller, the court struck the DC ban on handguns
In McDonald, the court applied the Heller decision to the states and struck the Chicago ban on handguns.

In both instances, the court struck the bans absent any consideration of rational basis, intermediate scrutiny or strict scrutiny – in effect, they ruled that bans on handguns, on their face, violate the 2nd amendment.

Handguns are, by far, the class of firearm most often used in crime.
Washington DC and Chicago have crime rates considerably higher than the average across the rest of the US.

Given all this, can you present an argument that a ban on ‘assault weapons’, used –far- less often in crimes across a –considerably- larger area, is constitutional?

Details unfold in shots fired at White House - Yahoo! News

Investigators believe Ortega fired at the White House from his vehicle Friday, according to an official with knowledge of the investigation. Gunshots were reported that night on Constitution Avenue about 9:30 p.m. Soon after, U.S. Park Police found an abandoned vehicle, the assault rifle inside it, near a bridge leading out of the nation's capital to Virginia. The car led investigators to Ortega.

Is there a point here?
if so, please elaborate?

 

[M14 Shooter]

Yanno..........

I don't really think that the Founding Fathers would have approved assault weapons if they knew what they are.

Seems to me that 'assault weapons', being ideal for service in the militia, are -exactly- the kinds of weapons they intended to protect.