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Posted: 10/21/2004 5:22:39 PM EST
This is a request for peer review of a project I'm working on. The "problem" I'm trying to deal with is the SCOTUS' resistance to hearing a 2nd amendment case because of the "slippery slope" problem, i.e., the argument that "well if the constitution says they can have machine guns, then what's to say that they shouldn't have F-14s, Apache Hellicopters, or 60mm Mortars. I believe I've got a workable framework that, if we can get it into the vernacular and published legal analysis would be attactive to the SCOTUS and compatible with the vast majority of our own expectations about RKBA. Tell me what you think.

My pet theory, which I've been outlining and developing in written form for a few years now and will try to get sponsored to file as an amicus brief befor SCOTUS if ever they hear the issue, is that you look at a PROCESS in analyzing these issues, which is what the court does all the time. I presuppose an individual right to keep and bear arms, of course.

The First "element" is a two part test. Is the weapon you're talking about (a) suitable for individual (rather than crew-served) use; and (b) of the same the sort (in terms not only of caliber, firepower, functionality and features, but also appearance and ergonomics) as federal, state and local authorities regularly and customarily deploy, or have traditionally deployed, including reasonable equivalents, for purposes of possible application to the domestic population? So long as we have Posse Comitatus, this is a very viable test. If the government starts breaking up riots with Apache Hellicopters, or using RPGs and mortars against the citizens, the war will have already started and this goes all to hell.

If you meet these tests, I would say the “arm” is presumptively one which the framers of the 2nd Amend. intended to be available for citizen ownership and use in order to, inter alia, ensure citizens would have an “equal footing” with the government actors who by constitutional fiat must act by and for the population, but with their consent...

Then, I think you must go to the SECOND ELEMENT. Just as you can't shout "fire" in a crowded theatre, a notion which imposes an "ordered liberty" requirement upon various types of speech (the concept of "ordered liberty" being something the SCOTUS has addressed in numerous other bill of rights cases), I think there are outside limitations on firearms:

So, the second question, as part of my test, is this: Can the weapon, despite being presumptively available for citizen use, nevertheless be a valid subject of government regulation? I would say the answer is yes if the weapon’s function, technical limitations, and practical effects result in a situation in which the instrument is one that the reasonably proficient citizen cannot be expected to reasonably yield and employ in a sufficiently “discriminate” manner as to comply with notions of “ordered liberty” recognized in the Supreme Court’s other Bill of Rights cases.


Some examples:

38 Caliber Revolver:

First Element: Yes. The revolver of pistol caliber firepower is an "individual" rather than crew-served weapon, and has been a staple of law enforcement over the years. It is and has been employed vis a viz the citizenry.

Second Element: As a one-round per trigger pull weapon, the revolver can be utilized in sufficiently discriminate manner (i.e., applied to specified targets) as to meet the test of ordered liberty.

60 mm Mortar

First element: No. Mortars are typically crew-served by two or three man teams. Plus, mortars are not regularly or customarily employed by federal, state or local law enforcement with respect to the domestic population.

No need to get to 2nd element of test, but if you got there: Its clearly incapable of “discriminate” use, by its very design. As a “blast” weapon, it is indiscriminate by nature.



Colt AR-15 Semi-Automatic Rifle (semi-auto first to show nuances of test)

First Element: Yes. The AR-15 is an individual and not crew-served weapon, and even in semi-automatic configuration is a frequently deployed law enforcement long-arm – especially with high capacity magazines. I would presume the founders intended that if law enforcement and the govt have these, then the citizens should too.

Second Element: It’s a single-round per trigger pull, very accurate firearm. It therefor meets the test for ordered liberty as I see it.



Fully Automatic M16

First Element: Yes, the the full auto M16 gun is also an individually fielded weapon and – for better or worse – is an arm that is frequently deployed for domestic law enforcement.

Second Element: Ahah... Is a fully automatic weapon – by virtue of its sphere of influence and operation an arm that is capable of being deployed with sufficient “discretion” to comport with ordered liberty? (I.e., is it possible to exercise of one’s 2nd amendment rights with sufficient personal responsibility and accountability using such a weapon?). It’s a close call, but ultimately I would argue that it passes the test.



Bradley Tank Mounted 20mm Full Auto Weapon.

First Element: No. These are not individually fielded by definition as they are vehicle mounted, which implies crew service (someone to drive the vehicle, someone to use the weapone, and often even somene to monitor ammo and feeding). Plus, these have never been and are not authorized for deployement vis a viz the US Population, again, so long as posse comitatus keeps use troops from being deployed as to the civilian population.



Second element: You don't need to get here, but the 20mm rounds are generally incindiary and/or explosive so there is a real question as to whether they can be fielded by citizens of average proficiency in a manner which comports with ordered liberty.


Shotguns: (Regular “shot” or “buckshot” ammo)

First Element: Yes, individually fielded and frequently deployed law enforcement device with respect to the civilian population.

Second Element: Although a somewhat indiscriminate weapon in terms of the “spread” of shot, its arguably still capable of discriminate use because the projectiles run out of energy and fall to earth at far shorter ranges than typical rifle or pistol cartridges.



Shotguns: (Firing Slugs)

First Element: Ayup, individually fielded and the authorities use or have used with respect to domestic population.

Second Element: As discriminate as regular bolt action rifle by virtue of single projectile.

Shotguns: (Firing Flechettes)

First Element: Individually fielded, but I don’t think authorities have ever deployed these domestically as to the citizenry.

Second element: Not necessary, but even if it was necessary, the LONG distance the flechettes travel coupled with “spread” pattern arguably fails discriminate use test, and therefore allows these to be regulated.

Flame Thrower:

First Element: Individually served, but never deployed by officials as against the US population to my knowledge.

Second Element: Not needed, but probably not discriminate enough -- as will usually be the case with area effect weapons.



See how that works? If the SCOTUS doesn't take a case I can file my research and analysis in soon, I'm thinking of hooking up with one of the two or three pro-gun law professors out there and co-authoring a law review article on this stuff. Law reviews are interesting in that well reasoned articles really do impact what SCOTUS does.

Of course, if you get sKerry into the white house, he'll appoint judges that say there's no individual right period. Pretty damn unfortunate. Go Bush.!
Link Posted: 10/21/2004 5:29:47 PM EST
[Last Edit: 10/21/2004 5:34:21 PM EST by K2QB3]
I'm of the opinion that any weapon that has a legitimate law enforcement use is equally legitimate for self defense and the preservation of liberty.

There's no need for the "not crew served" qualifier, as there's no need for crew served weapons in law enforcement.

As for the second element, any weapon that's "too indiscriminate" for the people to wield is too indiscriminate for the people serving as LEOs as well.

Personally I think any distinction between what the LEOs and citizens have available to them is a violation of the 2nd, and the right to life, and that states should make the call on what they feel LEOs (and civilians) in that state need to do the job.
Link Posted: 10/21/2004 5:33:19 PM EST
Interesting arguments.


Originally Posted By GonzoAR15-1:
Flame Thrower:

First Element: Individually served, but never deployed by officials as against the US population to my knowledge.

Second Element: Not needed, but probably not discriminate enough -- as will usually be the case with area effect weapons.



Kind of bizarre that no one in .gov has thought of specifically outlawing or restricting (Title II) flamethrowers.
Link Posted: 10/21/2004 5:49:54 PM EST
[Last Edit: 10/21/2004 5:50:48 PM EST by Railgun]
Very impressive arguement, of course by making too much sense in it's construct will cause the simplest "Interpretation" of RKBA to void it's logic. At least that is my opinion.
The SCOTUS would have to make the stand based on the caparable use idea that you have outlined.
They would paper pile the pro/con comparison to the point of doubt in effective judgement.
They would see it as an unclear case of comparable data and debateable definitions of terms.
Of course another opinion.

Railgun....
Link Posted: 10/21/2004 5:56:06 PM EST
There ought not be one standard, applicable in every situation.

The bar should be: if neither its mere existence, normal handling, nor storage puts others in immediate danger, it is OK. If not, others are in immediate danger and are justified in removing the threat.

This is not specific to arms, but is a generally-applicable rule (which we already use, by the way).

In the future, nuclear weapons might be a viable self-defense weapon for private interstellar craft. In that context, they ought be allowed. However, my basement is not equiped to safely store such a weapon, thus my current neighbors (and city) would be justified in preventing storage of such a weapon.

Virtually all non-NBC individual and crew-served weapons would be "safe" under this criteria in the storage most people have today, thus would be allowed.

-z
Link Posted: 10/21/2004 5:58:17 PM EST

Originally Posted By GonzoAR15-1:


Bradley Tank Mounted 20mm Full Auto Weapon.

First Element: No. These are not individually fielded by definition as they are vehicle mounted, which implies crew service (someone to drive the vehicle, someone to use the weapone, and often even somene to monitor ammo and feeding). Plus, these have never been and are not authorized for deployement vis a viz the US Population, again, so long as posse comitatus keeps use troops from being deployed as to the civilian population.



Second element: You don't need to get here, but the 20mm rounds are generally incindiary and/or explosive so there is a real question as to whether they can be fielded by citizens of average proficiency in a manner which comports with ordered liberty.




It is a Bradley Infantry Fighting Vehicle and currently uses a 25mm cannon, although I think in older days it may have had a 20mm gun. The third guy is the Bradley Commander, controls movement of vehicle, directs gunner's fire, ect. Dont want to be a dick, just letting you know.
Link Posted: 10/21/2004 6:00:15 PM EST

Originally Posted By Zak-Smith:
There ought not be one standard, applicable in every situation.

The bar should be: if neither its mere existence, normal handling, nor storage puts others in immediate danger, it is OK. If not, others are in immediate danger and are justified in removing the threat.

This is not specific to arms, but is a generally-applicable rule (which we already use, by the way).

In the future, nuclear weapons might be a viable self-defense weapon for private interstellar craft. In that context, they ought be allowed. However, my basement is not equiped to safely store such a weapon, thus my current neighbors (and city) would be justified in preventing storage of such a weapon.

Virtually all non-NBC individual and crew-served weapons would be "safe" under this criteria in the storage most people have today, thus would be allowed.

-z



I guess I wasn't quite clear in my description of this endeavor.

You're analyisis is attractive to law abiding patriots. To folks in large cities run by gangs and the mob it is not. If the choice is between adopting your test and simply concluding that the 2nd amendment protects only state militias and not individual rights, what do you think SCOTUS will do? The rationale and goal of my analysis is to find a test that will give SCOTUS enough comfort as to the slippery slope that they do not feel constrained to rule against the 2nd as an individual right.

I hope I explained that better this time.
Link Posted: 10/21/2004 6:03:03 PM EST
As C-4 said. Plus I think they are considered "agricultural implements." Weed burners I presume.

Looks like you are putting together a nice work Gonzo. Good luck.
Link Posted: 10/21/2004 6:03:30 PM EST
[Last Edit: 10/21/2004 6:04:16 PM EST by Zak-Smith]

Originally Posted By GonzoAR15-1:
I guess I wasn't quite clear in my description of this endeavor.

You're analyisis is attractive to law abiding patriots. To folks in large cities run by gangs and the mob it is not. If the choice is between adopting your test and simply concluding that the 2nd amendment protects only state militias and not individual rights, what do you think SCOTUS will do? The rationale and goal of my analysis is to find a test that will give SCOTUS enough comfort as to the slippery slope that they do not feel constrained to rule against the 2nd as an individual right.

I hope I explained that better this time.


No, I understand what you're trying to do, and if successful it would secure a lot more than we have now.

However, in my libertarian heart of hearts, it's bitterly distasteful because it completely misses the point of the principles involved.

(ETA: not because you've missed them, obviously, because the SCOTUS will miss them)

-z
Link Posted: 10/21/2004 6:04:06 PM EST
Link Posted: 10/21/2004 6:05:00 PM EST

Originally Posted By C-4:
Interesting arguments.


Originally Posted By GonzoAR15-1:
Flame Thrower:

First Element: Individually served, but never deployed by officials as against the US population to my knowledge.

Second Element: Not needed, but probably not discriminate enough -- as will usually be the case with area effect weapons.



Kind of bizarre that no one in .gov has thought of specifically outlawing or restricting (Title II) flamethrowers.



A flamethrower is NOT a firearm and is in fact NOT REGULATED by any Federal law...

Build, sell, and posess in interstate commerce all you want, the Feds don't care...
Link Posted: 10/21/2004 6:06:22 PM EST
I'd rather look at history.


What did the Founding Fathers own? Cannon? If so, that shoots your first element to hell - crew served weapon

Explosive cannon balls? If so, that shoots your second element to hell. Indiscrimante weapon


On a more basic level, if we are to keep the goverment honest, we would need RPG's, LAWS, Stingers to stand a chance

Link Posted: 10/21/2004 6:11:21 PM EST

Originally Posted By shotar:
Seems reasonable to me, but the Law enforcement test mentioned later does pose an interesting propostion as certain weapons are deemed suitable by different law enforcement agencies. Some restric the use of rifles of any sort heavily, while others no longer issue shotguns. Does this open the door to some local control based upon what is deemed suitable for Law enforcement. Does the new counter terrorist paradigm change this test since certain larger police agencies do now depoloy although in limited numbers, armored vehicles for counter terrorist operations?



Actually, the flexiblity of the test in this regard should make it attractive.

First, consider new technology.

Before running off stark raving mad and supplying all L.E. officers with Phased Plasma Rifles in the 40 watt range, the powers that be would need to consider that doing so would automatically make those weapons available to the populus at large.

Second, in terms of local control, I think you're right that there's a good point there. But the reality is that in each state, anything the State Patrol or FBI or Homeland Security force deems available for deployment would count, and in any event, any local variations would probably be trumped by the fact that Posse Comitatus contains an exemption for the Nat'l Guard, so it would be arguably correct to say that anything the N.G. or the federal marshalls might deploy is fair game for the citizens too.

With regard to the ratcheting up of firepower in terms of counter-terrorism, I think it meshes right into the test. If the state of affairs has grown in danger to where more radical weaons are being reserved for deployment in domestic situations, I think the history and discussions with regard to the 2nd amendment would lead to the conclusion that the citizenry ought to be able to ratchet up their own firepower too. But understand something, this is a natural check on the government's knee jerk reactions to arming LE types. You have to understand that once the government deploys weapons against the citizenry (lets use the phased plasma rifle example again, then those guns forever have constitutional protection, because efforts to "roll back" the government's use of the arms in question would not automatically disarm the populas already holding such weaons because that would be a "taking" under the 5th amend.
Link Posted: 10/21/2004 6:12:38 PM EST

Originally Posted By MrKasab:

Originally Posted By GonzoAR15-1:


Bradley Tank Mounted 20mm Full Auto Weapon.

First Element: No. These are not individually fielded by definition as they are vehicle mounted, which implies crew service (someone to drive the vehicle, someone to use the weapone, and often even somene to monitor ammo and feeding). Plus, these have never been and are not authorized for deployement vis a viz the US Population, again, so long as posse comitatus keeps use troops from being deployed as to the civilian population.



Second element: You don't need to get here, but the 20mm rounds are generally incindiary and/or explosive so there is a real question as to whether they can be fielded by citizens of average proficiency in a manner which comports with ordered liberty.




It is a Bradley Infantry Fighting Vehicle and currently uses a 25mm cannon, although I think in older days it may have had a 20mm gun. The third guy is the Bradley Commander, controls movement of vehicle, directs gunner's fire, ect. Dont want to be a dick, just letting you know.



Thank you for the input. Your comments have made their way into my abstract and I appreciate them. There is every bit of potential for this to evolve into a book-sized project, so my thinking is that I'll want some military experienced consultants to provide input. It is valuable and I appreciate the feedback.
Link Posted: 10/21/2004 6:16:00 PM EST

Originally Posted By fight4yourrights:
I'd rather look at history.


What did the Founding Fathers own? Cannon? If so, that shoots your first element to hell - crew served weapon

Explosive cannon balls? If so, that shoots your second element to hell. Indiscrimante weapon


On a more basic level, if we are to keep the goverment honest, we would need RPG's, LAWS, Stingers to stand a chance




And in principle I fully agree with you.

But again, the purpose of this endeavor is to provide a test that the SCOTUS can accept. I don't think they'd accept your approach. And remember, the Cannons were never deployed against the domestic populus as law enforcement. They were used by patriots fighting wars.

Again, the idea here is to avoid the situation where SCOTUS gets worried that ruling in favor of the 2nd as an individual right brings with it privately owned nukes. If they see the test they set allowing that, well I assure you we'll find ourselves living under a ruling that says only state militias have the right to arms and there will be massive confiscation (and hopefully a revolution).
Link Posted: 10/21/2004 6:17:28 PM EST
We should be allowed any weapons used by militaries. That was the intent of the second ammendment, all the way to cannon. In fact, the Revolutionary war started when the Redcoats went to confiscate illegally owned cannon from the citizens.
Link Posted: 10/21/2004 6:20:13 PM EST
try the tax route too - the courts already ruled that a specific tax on the 1st Amendment was unConstitutional.....try getting the NFA'34 repealed on that basis alone.... (btw: a general sales tax thaqt applies to ALL goods, including periodicals, was deemed to be okay)
Link Posted: 10/21/2004 6:20:51 PM EST

Originally Posted By Combat_Jack:
We should be allowed any weapons used by militaries. That was the intent of the second ammendment, all the way to cannon. In fact, the Revolutionary war started when the Redcoats went to confiscate illegally owned cannon from the citizens.



And, under the founders' original intent, we should not have a standing army.

I agree with you, but I'm positive that 90+ percent of the citizenry would balk at the idea of Tony Soprano or George Gangbanger having privately owned cruise missiles.

We do ourselves a disservice if we are so unrelenting in what we think the 2nd amendment means that we push ourselves right over the clift to a ruling which concludes there is no individual right in the first place.

Remember. That IS the ruling right now in the 9th circuit. We're having to try and "undo" bad law, and we're not going to do so by brazenly asserting that we can have our own tacitcal nukes.
Link Posted: 10/21/2004 7:12:23 PM EST
[Last Edit: 10/21/2004 7:15:25 PM EST by cmjohnson]
Link Posted: 10/21/2004 7:12:42 PM EST
You are arguing that we should compromise the intentions of the 2nd Amendment for the sake of having a winnable case.


I don't buy it.


If we want a positive 2nd Amendment ruling, we should go back to the Original Intent of the Founders.

AFTER they wrote the Constitution, what were people allowed to own? Cannon? Mines? Exploding shells? I don't know, but I think that's the question.


Some of the restrictions resulted from technological improvements, but I'd bet that citizens owned some impressive stuff well before that.
Link Posted: 10/21/2004 7:22:41 PM EST

Originally Posted By fight4yourrights:
You are arguing that we should compromise the intentions of the 2nd Amendment for the sake of having a winnable case.


I don't buy it.




Would you rather have the Courts throw up their hands, declare the 2nd applicable only to militias, and bless a comprehensive confiscation scenario -- leading to a war or the loss of our freedom?

The test I'm working with here addresses technological innovation in a realistic manner, and seems to be one of the only scenarios under which the SCOTUS would recognize an individual right. Hell, as applied, the test gets us unregistered machine guns and invalidates 922(r) and the other import restrictions.

90% of the NRA members think that it fought too hard on the AWBan issue. We just about lost it in the senate. Do you seriously think SCOTUS is going to give the people the right to privately owned RPGs?

I would suggest that opinion in America being what it is right now, even a ruling on the lines you mention would be an awful thing. It would be just the ticket to mobilize a nationwide constitutional amendment that would wipe out the 2nd as we know it.

I'm saying we need to be careful what we wish for.
Link Posted: 10/21/2004 7:25:30 PM EST
[Last Edit: 10/21/2004 7:28:50 PM EST by fight4yourrights]

Originally Posted By GonzoAR15-1:


Would you rather have the Courts throw up their hands, declare the 2nd applicable only to militias, and bless a comprehensive confiscation scenario -- leading to a war




Yes. while we *might* still have enough firepower to do something about it.



In 50~60 years, so-called assault weapons will be purged from Kalifornia as their original owners die off. More states will follow. They are brain washing the kids to be afraid of guns, already Police Departments are having recruits that don't want to use guns.

Maybe it's time for the Tree of Liberty to be watered with the blood of Patriots and Tyrants


Link Posted: 10/21/2004 7:26:10 PM EST

Originally Posted By cmjohnson:
An interesting project. I'll have to consider this for a while before I make any serious attempts at giving you some input on it.

But, the flamethrower issue is a non-starter. Flamethrowers are not classified as firearms of any sort and should not even be mentioned. In reality, there are perhaps 30 functional flamethrower systems in civilian hands in the United States. Rate of criminal activity with flamethrowers: ZERO.

It's pretty accurate to say that there are so few people who really WANT a flamethrower, that those who DO want them already HAVE them. And they're a very, very rare breed.

I think you WILL have to address the issue of whether or not the right to keep and bear arms is an individual right or a collective right. This is CRITICAL. Here's an approach I favor:

The critical phrase in the 2nd amendment is "the right to keep and bear arms shall not be infringed" which is a compound statement per the rules of English grammar and composition, as in effect at the time the amendment was authored, and the rules concerning this are unchanged today. Therefore, the phrase can be correctly expanded for purposes of clarity to read "the right to keep arms and the right to bear arms shall not be infringed."

It has been proposed by some that the term "to bear arms" supposes a military or militia context. To bear arms is to carry arms in the service of a militia or organization having a structure and purpose that is generally military. If one is to accept this supposition, then one must also consider the remaining phrase, "to keep arms".

Just as to bear arms has a primarily military or militia context, to KEEP arms covers all contexts that are NOT connected to military or militia related activities. A person having no connection whatsoever to any military or militia activities may clearly have firearms for his or her own personal uses, without any stated restrictions. Whether that person chooses to use his firearms for hunting, marksmanship, defense of person and/or property, or simply collects them is of no concern. The right to keep firearms individually and outside of any military or militia context is abundantly clear and must be acknowledged.

There is an additional issue that must be addressed, and that is that of State's Rights vs. the Bill of Rights. To address this issue, a simple test of other amendments is effective.

If any given state were to pass a law that specifically prohibited its citizens from practicing any given named religion, or were to pass a law that abridged the citizen's freedom of speech, that law would undoubtedly fail a Constitutional challenge before the Supreme Court as there is no doubt or question that the First Amendment's protections are conferred upon all citizens of the United States.

If any given state were to pass laws that obviously are in conflict with the Third, Fourth, or Fifth Amendment, OR ANY OTHER, it too would certainly be struck down by the Supreme Court upon challenge.

I must then ask why it is that many states have been negligently allowed to pass laws that clearly and directly violate the Second Amendment? What justification does the Court give for allowing these states to treat the Second Amendment as one that can be ignored and overrun at will?
What precisely is different about the wording, meaning, or other hidden attributes of the Second Amendment that gives states the right to ignore its text and meaning while all other amendments remain in force in each states? What is it about the Second Amendment that makes it the "bastard stepchild", open to being ignored by the states, despite its clear and simple language that is easily understood by children in primary school as conferring an individual right to all citizens?

The answer to this question can only be thus: It has been the decision of certain people to ABUSE their powers as keepers of the laws of the United States, and they have committed FRAUD and PERJURY, by stating falsely that the Second Amendment does not protect an individual right. They often cite the reference to the militia as supporting evidence for their position that the right is a collective one, despite the fact that at the time of the authoring of the Second Amendment, the United States did not even have any form of organized militia!

Clearly, their argument is FALSE, and must be absolutely and authoritatively refuted for all time.

The distinguished and patriotic Americans that authored the Constitution and the Bill of Rights were very clear in their intent to ensure that the true governmental power of the United States was granted to the citizens and not to the government itself, and that this should be the model for our form of government for as long as it shall stand.

A cornerstone of the retention of power by the citizenry is that they have the right to be armed as they choose, and unique among all governments, this right to be armed is states as not being GRANTED by the government, but is granted by higher authority (God), and this government
PROTECTS that right and shall ensure that it is not infringed upon by man or any agency or
construct of his creation. The right to keep and bear arms, like all other rights enumerated in the Bill of Rights, is inalienable and God-given. Note that the Second Amendment states clearly, "The right to keep and bear arms shall not be infringed", but does not say in any way, shape, or form that "The government of the United States grants the right to keep and bear arms" simply because it was believed that the right does not COME from the government, but from God. This remains true.

Furthermore, no rational person could argue that the right to self defense is a human construct. Every living creature has some methods of self protection and self defense available to it, and humans are no different in that respect save that they have the ability to create and use weaponry that is far beyond the ability of any other living creature to match. There is no reason for people to be denied the right to self defense by mechanical means. No person has ever fielded any rationally defensible argument against the right to self defense.

Well, what do you think? How's that for just pulling it off the top of my head, straight and without any editing?

CJ



Well, you certainly articulate one of the best rationale-based approaches to the 2nd amendment I've seen.

But my endeavor is to couple that kind of analysis -- of which a lot exists, see Kozinski's dissent in the Kali AWBan case -- with the framework where the Court could recognize an individual right without being accused (or worrying) that it's opening the door to personal tactical nukes.
Link Posted: 10/21/2004 7:28:54 PM EST
A Constitutional Amendment CAN'T wipe out the 2nd Amendment. Remember, the Bill of Rights doesn't grant me Rights, it simply enumerates them.

I'd rather we go for intellectual honesty - let's all talk about what the 2nd is all about, why it was written, and what that means. That discussion leads to LAW's, etc.....


If we use the LEO test, guns will be banned eventually. As soon as a stun phazer is invented, ALL police forces will have to switch over, or be sued out of existance.

Once the Cops can't have guns, why should you?
Link Posted: 10/21/2004 7:29:54 PM EST

Originally Posted By fight4yourrights:

Originally Posted By GonzoAR15-1:


Would you rather have the Courts throw up their hands, declare the 2nd applicable only to militias, and bless a comprehensive confiscation scenario -- leading to a war




Yes. while we *might* still have enough firepower to do something about it.




The point of us having enough firepower is long past already, given the power our standing army has the capacity to bring to bear. It was already too late when NFA passed and there was not a war to preserve that level of firepower.

The only chance we have is to ensconse legal firearms ownership under a framework like I mention and then push upward on the proportion of Americans who own and keep arms.

Link Posted: 10/21/2004 7:32:47 PM EST
you guys that want tanks, SAMs, RPGs, anti-aircraft artillery, and other crew served weapons crack me up.
Link Posted: 10/21/2004 7:33:02 PM EST

Originally Posted By GonzoAR15-1:


The point of us having enough firepower is long past already, given the power our standing army has the capacity to bring to bear. It was already too late when NFA passed and there was not a war to preserve that level of firepower.

The only chance we have is to ensconse legal firearms ownership under a framework like I mention and then push upward on the proportion of Americans who own and keep arms.





The only chance for what? You just said that the entire purpose of the 2nd Amendment is DEAD.


So now we work for the scraps, to secure the priviledge of owning guns for self defense, a purpose that was considered such a fundamental human right that the Founders didn't even need to worry about protecting it?
Link Posted: 10/21/2004 7:33:48 PM EST
Interesting, and logical. This is how I alaways approached the topic.

RKBA is intended to protect against a tyrannical govt. People are allowed to own small arms, because for a successful armed insurrection to occur, the govt would have to do something REALLY bad to mobilize a majority of the population (i.e. think if the blacks had been armed in South Africa - a minority oppressing the majority type deal).

If individuals could own massive very destructive weapons, a single individual, or small scale group could wreak tremendous havoc and possibly topple the govt if they got pissed or freaked out or something.
Link Posted: 10/21/2004 7:34:01 PM EST
[Last Edit: 10/21/2004 7:35:06 PM EST by fight4yourrights]

Originally Posted By -Absolut-:

you guys that want tanks, SAMs, RPGs, anti-aircraft artillery, and other crew served weapons crack me up.




Maybe, but if the intent of the 2nd is for the People to be able to resist a Tyrannical Government, you tell me how we do that with shotguns and .22 squirrel rifles?



I'm not advocating nukes, but some type of anti-aircraft and anti-tank would seem to be necessary.
Link Posted: 10/21/2004 7:45:35 PM EST
[Last Edit: 10/21/2004 7:47:19 PM EST by GonzoAR15-1]

Originally Posted By fight4yourrights:

Originally Posted By GonzoAR15-1:


The point of us having enough firepower is long past already, given the power our standing army has the capacity to bring to bear. It was already too late when NFA passed and there was not a war to preserve that level of firepower.

The only chance we have is to ensconse legal firearms ownership under a framework like I mention and then push upward on the proportion of Americans who own and keep arms.





The only chance for what? You just said that the entire purpose of the 2nd Amendment is DEAD.


So now we work for the scraps, to secure the priviledge of owning guns for self defense, a purpose that was considered such a fundamental human right that the Founders didn't even need to worry about protecting it?



The 2nd Amendment is not dead. The right of defense is not a human right which allows a small percentage of the population to bring power to bear that could topple the whole government. The right to defense exists to prevent tyranny and oppression. The goverment could never oppress the entire country of armed individuals.

Take a look here to get a sense of things: www.nationmaster.com/country/us/Military

4.7 military guys per 1000 of the population, most I would add deployed outside of the united states. How many of those tanks located outside of the US could the military get back here and deploy on our soil if every port were covered with 10,000 or so folks dropping the hammer on even their favorite hunting rifles?

If the government takes action to oppress a sizeable chunk of the U.S., and if gun ownership were at the 40% to 60% of housholds number where it ought to be, they could never effectively prevail.



Link Posted: 10/21/2004 7:50:57 PM EST
Link Posted: 10/21/2004 7:58:44 PM EST

Originally Posted By cmjohnson:
And then ask yourself, how many of your fellow citizens (who are in the military) would actually obey orders to turn their guns against us?

Not many, not in terms of raw numbers or percentages. And those that WOULD obey those orders would immediately find themselves embattled with many of those who would NOT obey those unlawful orders.

CJ



There's actually been a study of that involving live research among armed forces personelle.

As I recall better than half said they'd disobey that order.

Link Posted: 10/21/2004 8:00:11 PM EST
Notice the militaration of the police departments nationwide, every governmental agency I can think of with MP5's. Tactical urban assault vehicles with less nefarious descriptions. The use or experimentations of non or "Less" lethal weaponry. They are in the fight before any US Military arm as they are already militarized.
And all the gung ho idiots that are saying, albeit from the armchair, to "Lock and Load". That same mentality exists in these militarized police foot soldiers.

So the need for more advanced weaponry is already an issue but the numbers of ready individuals is the true basis for Gonzo's arguement I think.

Just opinion of course.

Railgun....
Link Posted: 10/21/2004 8:04:59 PM EST

Originally Posted By -Absolut-:
you guys that want tanks, SAMs, RPGs, anti-aircraft artillery, and other crew served weapons crack me up.



I think it's kinda dumb, myself, but if you're a law abiding citizen, why the fuck not?



Also, my point of view: the 2A says you have the right to keep and bear arms, not ordnance.
Link Posted: 10/21/2004 8:09:03 PM EST

Originally Posted By lokt:

Originally Posted By -Absolut-:
you guys that want tanks, SAMs, RPGs, anti-aircraft artillery, and other crew served weapons crack me up.



I think it's kinda dumb, myself, but if you're a law abiding citizen, why the fuck not?



AdrianUSP9 got it exactly right up above.

Do you really want to try and compete with the kind of arsenal George Soros, Michael Moore and Hollywood could put together?

My element of individually served weapons as opposed to crew served brings to bear the level of citizen to citizen comity that is necessary where there is such a divergence between socio-economic status among citizens. Its a "ceiling" as to the power the "rich" can wield independent of the government against the rest of us.




Also, my point of view: the 2A says you have the right to keep and bear arms, not ordnance.


Pretty much anything standing as "ordnance" would probably fall outside of the kind of arms that could be operated by the reasonably proficient citizen in a sufficiently discriminatory manner under the second part of my test. So, we essentially agree.

Link Posted: 10/21/2004 8:14:03 PM EST
I don't if this criticism has been made. But I think (atleast as far as typical military classification) belt fed weapons are called "crew served". This would mean no civilian could own a belt fed gun. Is this what you want?
Link Posted: 10/21/2004 8:15:47 PM EST
tagged for later reading.
Link Posted: 10/21/2004 8:42:14 PM EST
The practical division is obvious: Any direct-fire firearm or future equivalent of a firearm that is capable of being carried & operated by a single individual acting completely alone.

No, civillians should not be allowed to posess tanks, armed aircraft, warships, etc...

And a revolution of any kind would be disasterous for this country, unless a government refuses to hold or recognize elections. And at that point, the standing military would take care of the problem...

The fact is, small arms are useless as tools of revolution in this country, the role of the 2nd shifted from revolution to self defense/crime control in the late 1890s or so...

Keep your fantasies about taking on tanks & aircraft with rifles... Iraq will show how easily this will fail (as we crush one light resistance movement after another)
Link Posted: 10/21/2004 8:56:26 PM EST

Keep your fantasies about taking on tanks & aircraft with rifles... Iraq will show how easily this will fail (as we crush one light resistance movement after another)


If we got to the pitch where I'm arguing the 2nd Amendment applies, you'd be talking the equivilent of an insurgency in Iraq in which 80% + of the able-bodied men were armed and storming our bases.

Look at D-Day on Omaha beach. The Germans had position and firepower advantages, but the waves and waves of infantry overcame. (Yes, I know they had grenandes and other arms beyond what we've got), but my point is simply this: An overwhelming revolution even armed only with small-arms would be hard to deal with, and completely ungovernable by a hostile force or tyranical government.
Link Posted: 10/21/2004 9:03:16 PM EST
Link Posted: 10/21/2004 9:10:10 PM EST

Originally Posted By sherrick13:
Go back to what the founders wanted.

The phrase "law enforcement" should not even be there.

The right of ownership of cannon, flame devices and even frigites and Man O War were not only understood as being a God given right, but encourged to be owned by the .gov.

The caveat is if you own it you are responsible for it.

If an individual can afford it, he should be able to have it.



We can't even get 30% of NRA members to agree that people have a right to own scary looking semi-auto military pattern rifles. Your interpretation will never fly, and when the ruling of "no individual right" comes out (as it certainly will with that interpretation), the group of us fighting the confiscation will be eradicated as we'll be so small as to be easily labled as extremists. See, e.g., Waco.

Link Posted: 10/21/2004 9:12:54 PM EST

Originally Posted By sherrick13:
Go back to what the founders wanted.

The phrase "law enforcement" should not even be there.

The right of ownership of cannon, flame devices and even frigites and Man O War were not only understood as being a God given right, but encourged to be owned by the .gov.

The caveat is if you own it you are responsible for it.

If an individual can afford it, he should be able to have it.



I like how you think.
Link Posted: 10/21/2004 9:15:13 PM EST

Originally Posted By -Absolut-:
you guys that want tanks, SAMs, RPGs, anti-aircraft artillery, and other crew served weapons crack me up.




There are many, many tanks and other armored vehicles in private hands in this country, and more imported every day. Some even have the main guns active and registered as a DD.
Link Posted: 10/21/2004 9:17:38 PM EST

Originally Posted By Dave_A:
The practical division is obvious: Any direct-fire firearm or future equivalent of a firearm that is capable of being carried & operated by a single individual acting completely alone.

No, civillians should not be allowed to posess tanks, armed aircraft, warships, etc...




And yet, they do own tanks, military aircraft, ect today in this country.
Link Posted: 10/21/2004 9:30:21 PM EST
My general rule would be that "if you can lift it, you can own it." Maybe an exception for stuff that blows up or uses chemicals, so the backpack nukes are right out.

This would have the added benefit of promoting physical fitness in the gun-buying public. I think power-lifting would become very popular.

As mentioned, there are plenty of people who own tanks, SCUD missiles, military jets, artillery pieces, and other fun toys. But I'd be willing to give that up as a right, though in reality we are not beset by a plague of bank robberies done by tanks, and I think it's fine to keep them in private hands.
Link Posted: 10/21/2004 9:31:21 PM EST

Originally Posted By GonzoAR15-1:

Originally Posted By fight4yourrights:

Originally Posted By GonzoAR15-1:


The point of us having enough firepower is long past already, given the power our standing army has the capacity to bring to bear. It was already too late when NFA passed and there was not a war to preserve that level of firepower.

The only chance we have is to ensconse legal firearms ownership under a framework like I mention and then push upward on the proportion of Americans who own and keep arms.





The only chance for what? You just said that the entire purpose of the 2nd Amendment is DEAD.


So now we work for the scraps, to secure the priviledge of owning guns for self defense, a purpose that was considered such a fundamental human right that the Founders didn't even need to worry about protecting it?



The 2nd Amendment is not dead. The right of defense is not a human right which allows a small percentage of the population to bring power to bear that could topple the whole government. The right to defense exists to prevent tyranny and oppression. The goverment could never oppress the entire country of armed individuals.

Take a look here to get a sense of things: www.nationmaster.com/country/us/Military

4.7 military guys per 1000 of the population, most I would add deployed outside of the united states. How many of those tanks located outside of the US could the military get back here and deploy on our soil if every port were covered with 10,000 or so folks dropping the hammer on even their favorite hunting rifles?

If the government takes action to oppress a sizeable chunk of the U.S., and if gun ownership were at the 40% to 60% of housholds number where it ought to be, they could never effectively prevail.






Maryland doesn't seem to have a problem killing the 2nd Amendment:


Cite as: 79 Opinions of the Attorney General 206 (1994)
FIREARMS
CONSTITUTIONAL LAW ) SECOND AMENDMENT DOES NOT APPLY TO STATE
LEGISLATION
) ARTICLE 28 OF DECLARATION OF RIGHTS DOES NOT BAR GUN
CONTROL LEGISLATION
February 25, 1994



Complete Text (PDF File)
Link Posted: 10/21/2004 9:38:45 PM EST

Maryland doesn't seem to have a problem killing the 2nd Amendment:


Cite as: 79 Opinions of the Attorney General 206 (1994)
FIREARMS
CONSTITUTIONAL LAW ) SECOND AMENDMENT DOES NOT APPLY TO STATE
LEGISLATION ) ARTICLE 28 OF DECLARATION OF RIGHTS DOES NOT BAR GUN
CONTROL LEGISLATION
February 25, 1994



Complete Text (PDF File)



Yep.

And I maintain that the reason SCOTUS hasn't thrown that out on its ass is that no one has yet supplied a workable test to deal with the slippery slope issue. They can't, in their view, go out and overrule all state laws if to do so would be perceived as creating an unlimited right to own even tactical nukes, aircraft carriers and whatnot.

That's my whole goal here. To try and formulate a test that gives us the right to own a hell of a lot of fire power, but which has limits (just as the 1st amendment has limits) such that the recognition of an individual right, and incorporation of the 2nd to the states through the 14th would be doable.
Link Posted: 10/21/2004 9:41:07 PM EST
Gonzo, I salute you.

Link Posted: 10/21/2004 9:46:25 PM EST
[Last Edit: 10/21/2004 10:26:43 PM EST by JohnTheTexican]
I'd go with the Supreme Court of Texas in English v. State, 35 Tex. 473 (1872). Those guys knew a thing or two about Constitutional interpretation:

"The word 'arms,' in the connection we find it in the constitution of the United States, refers to the arms of a militia-man or soldier, and the word is used in its military sense. The arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster-pistol and carbine; of the artillery, the field-piece, siege gun and mortar, with side-arms."

Just update it a bit for modern weaponry.

Edited to ad a link to my favorite case.
Link Posted: 10/21/2004 9:46:50 PM EST

Originally Posted By Garand_Shooter:

Originally Posted By Dave_A:
The practical division is obvious: Any direct-fire firearm or future equivalent of a firearm that is capable of being carried & operated by a single individual acting completely alone.

No, civillians should not be allowed to posess tanks, armed aircraft, warships, etc...




And yet, they do own tanks, military aircraft, ect today in this country.



Ok, let me re-phrase that...

I left out the 'Under the 2nd Ammendment'

I meant that the ability to own such things is a privledge, not a right like the right to own small arms.
Link Posted: 10/21/2004 9:50:22 PM EST

Originally Posted By C-4:

Kind of bizarre that no one in .gov has thought of specifically outlawing or restricting (Title II) flamethrowers.



Cool. You know anyone who's selling them?
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