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Posted: 10/21/2004 10:55:21 PM EDT
[#1]
Didn't the SCOTUS do themselves in with Miller and his sawed off shotgun? They said "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." It seems to me that "ordinary military equipment" is OK with them!? |
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Posted: 10/21/2004 10:56:42 PM EDT
[#2]
You're dead on with that one.
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Posted: 10/21/2004 10:57:32 PM EDT
[#3]
I think the "correct" answer--meaning the one that stands not a snowball's cahnce in hell of being adopted--is that the Secpond Amendment is an absolute bar on the Feds from imposing any restrictions whatsoever on the right to keep and bear arms. However, like the rest of the bill of Rights, the Second Amedment was not intended to apply to the states at all. The intent of the amendment was make the regulation of what people can own and where and how they can carry the exclusive province of state governments.
Great for Texas. Sucks for Kali. Works for me. |
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Posted: 10/21/2004 11:11:19 PM EDT
[#4]
Doesn't Article VI say it does apply to the states? (partial quote) "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." |
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Posted: 10/21/2004 11:16:37 PM EDT
[#5]
The Bill of Rights applies to states also, as they are rights enumerated, not given. One of the Ammendments supports this one, but I can't remember which. |
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Posted: 10/21/2004 11:22:24 PM EDT
[#6]
As we all know, the First, Third, Fourth and Fifth Amendments did not apply to the states when the Constitution was written. The reason the states couldn't pass laws abridging free speech (to the extent they couldn't) was that the state constitution forbade it. The idea that the Bill of Rights applies to the states is a late 19th century interpretation of the "privileges and immunities" and "due process" clauses of the 14th Amendment. The theory is that these provisions incorporates some, but not all, of the Bill of Rights. Whether a right has been "incorporated" is done on a case-by-case basis. Fer instance, the Supreme Court has ruled that the Fifth Amendment right to indictment by a grand jury does not apply to the states. Same for the Seventh Amendment right to a jury trial in civil cases over $20. Same for the implicit requirement oin the Sixth Amendment that all criminal convictions be reached by a twelve-member unanimous jury. The Supreme Court has not addressed the applicability of the "incorporation doctrine" to the Second Amendment in any case decided since the doctrine's invention. (Prior to that, I believe the Supreme Court said that the Second did not apply to the states, but I don't remember the name of the case.) Which finally brings us to why the incorporation doctrine should bnot apply to the states. Which also brings me back to one of my last post on this topic-- The Second Amendment was intended as an absolute bar on the Feds from imposing any restrictions whatsoever on the right to keep and bear arms. However, like the rest of the bill of Rights, the Second Amedment was not intended to apply to the states at all. The intent of the amendment was make the regulation of what people can own and where and how they can carry the exclusive province of state governments. If this was indeed what the Second Amendment was intended to do (which, unlike any other interpretation I've read, makes complete sense of both clauses of the Amendment), it cannot be applied to the states without making a cockup of the whole thing. You can't say the Feds have to stay out of it completely because it's the states' job, and then try to apply the same rule to the states. But Constitutional law is fucked up beyond repair, so you can ignore all this. |
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Posted: 10/21/2004 11:35:35 PM EDT
[#7]
That was not the understanding of the Constitution for the first hundred years. There were a couple 19th Century state court cases that suggested that the Second Amendmend was different from the rest, but nothing from the Supreme Court. In general, though, it was pretty much universally accepted that the first ten Amendments (which, of course, came after Article VI was written) were only restrictions on federal authority. |
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Posted: 10/21/2004 11:41:30 PM EDT
[#8]
Yup. I'm advocating for a framework that will let us increase small arms ownership to a level where it is meaningful vis a viz the government. Its not right now (there are lots of guns, but most of them are held by (a) hunters; or (b) guys like us who have a dozen or so each). |
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Posted: 10/22/2004 12:01:10 AM EDT
[#9]
That would be the Ninth Amendment, which says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And the Tenth Amendment says: " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." When the Constitution was adopted, the federal government was supposed to be limited only to the powers specifically delegated to it in the Constitution. The Feds were supposed to be limited to stuff like running the military, regulating interstate and foreign commerce, and other natiuonal stuff like that. The rest was left to the states to deal with as they saw fit. When the bill of Rights was proposed, there was a lot of concern that the enumeration of certain rights would imply that whatever wasn't enumerated was fair game for the Feds to trod upon. The Ninth and Tenth Amendments were added to ensure that the others wouldn't be taken as license for the Feds to overstep the narrow delegation of authority spelled out in the original Constitution. The Ninth Amendment basically says "just because we didn't list it doesn't mean the Feds can regulate it." It was not understood as a restriction on the states. Again, as a matter of original understanding and subsequebnt Supreme Court jurisprudence, the Ninth Amendment was never thought to apply the rest of the bill of Rights to the States. That didn't come until about a hundred years later after the passage of the Fourteenth Aendment and the invention of the "incorporation doctrine." You might be pleased to know, however, that defenders of Roe v. Wade often point to the Ninth Amendment (via the Fourteenth) as a justification for the Supreme Court's abortion jurisprudence. Hope you enjoy the company. |
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Posted: 10/22/2004 12:47:11 AM EDT
[#10]
Ah, yes. The "emanations from the penumbras" |
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Posted: 10/22/2004 1:06:38 AM EDT
[#11]
John, with the Fourteenth Ammendemnt, its a moot point, as the states are included in the restrictions.
Besides, most states have an RKBA worded after the Federal second, in their constitution, and a ruling for the RKBA Federally would b cited by lawyers in state courts where the State Constitution has similar wording. |
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Posted: 10/22/2004 1:23:17 AM EDT
[#12]
Actually, with the Fourteenth Amendment, it's not a moot point. The Supreme Court has yet to decide whether it's going to apply the Second Amendment to the states. As I've said before, the Supreme Court picks and chooses which rights are incorporated. And I think, more likely than not, the Supreme Court will say that the Second doesn't apply to the states. I think they'll say the "well regulated militia" bit gives the states the right to regulate as they see fit. As for whether "most states" have a RKBA clause patterned after the Second Amendment, I don't know. Art. 1 sec. 23 of the Texas Constitution says: "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime." I think that gives them more wiggle room that the Feds. But if my interpretation of the Second Amendment--which is to say the correct interpretation--were to be accepted by the Supreme Court, I doubt that state courts would not find it applicable to their similarly worded Constitutional provisions. If the Second Amendment means that regulation of the right to keep and bear arms is the exclusive province of the states, an attempt by a state to apply that to a similarly worded state provision wouldn't make sense. Lawyers could cite Second Amendment decisions all they want, but courts wouldn't buy it or they'd amend their Constitutions. Or we'd get freedom. |
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Posted: 10/22/2004 1:35:56 AM EDT
[#13]
The fact is, any person with half a brain knows what the second ammendment MEANS. We're restrcited from having certain arms because "they" want us to be. I don't mean to sound rude, but maybe you should just send the supreme court a fucking dictionary, because that's all it takes to understand the second ammendment.
Right 2 : something to which one has a just claim: as a : the power or privilege to which one is justly entitled People 1 : plural : human beings making up a group or assembly or linked by a common interest Keep e : to have or maintain in one's service or at one's disposal <keep a mistress> Bear b : to be equipped or furnished with Arms 1 a : a means (as a weapon) of offense or defense; especially : FIREARM It's really simple. We, the people making up a group or assembly or linked by a common interest, have the power or privilege to which we are justly entitled, to have or maintain at our service or at our disposal, or to be equipped or furnished with, a means of offense or defense; especially a FIREARM. I hate to sound like an ass, but ARMS do not really NEED redefining. They are defined quite clearly. Our judges and politicians willfully ignore what these words mean and they are only as hard to interpret as picking up a Websters dictionary. Arms does not mean a tank or nuke. It means a firearm. The "first test" makes a bit of sense, however the second is kind of giving a little too much leverage IMO. But then again, I'm a dumbfuck, so take it with a grain of salt. |
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Posted: 10/22/2004 5:19:24 AM EDT
[#14]
I've had a night to think about the core question and I still don't have what I'm sure is the right answer.
The question is, what defines "arms" as mentioned in the 2nd Amendment? Certainly small arms as carried and used during the American Revolutionary War, by individual soldiers of both sides, would meet the definition. But, the authors of the Constitution and BOR undoubtedly knew that there would be progress in arms development, though lacking the ability to see the future, they could not have anticipated the state of development of firearms and instruments of war at any point in the future including now. However, there is no reason to believe that they intended for private ownership of firearms to be restricted only to types that existed as of the enactment of the BOR. Unfortunately, this now gets into a very, very foggy area. I know of NO commentaries by the authors of the Constitution or BOR that would tend to define "arms" in any way. Any attempt to apply a comprehensive definition is therefore guesswork, and guesswork really can't be permitted to fly when dealing with Constitutional Law issues. Any test, whether practical (these weapons are carried and operated by one man, in practice and by design) or theoretical (these weapons COULD be maneuvered and operated by one man if he were sufficiently trained, motivated, and organized), simply can't be more than educated guesswork as there isn't any written guide that shows exactly what the BOR's authors had in mind regarding this issue. But still, a definition is needed. A practical test should be formulated with that definition in mind. Suggestions for that practical test: Has the weapon found acceptance in any of the following activities involving actual use and firing of the weapon? First establish that the weapons in question are FIREARMS. Explosive devices, rocket propelled devices, and anything other than a weapon that operates on the general principle of a firearm* shall be excluded from this test. *The general operating principle of a firearm is that of a projectile propelled through a barrel by the force of gasses generated by a burning propellant. The propellant is entirely burned within the breech, chamber, and/or bore of the firearm, and is not carried on or with the projectile. Marksmanship training of any kind Hunting of any kind Self defense under any circumstances Issued to or used by individual soldiers for use in war. If the weapon has found acceptance under any one of these categories, it may be presumed that it is eligible to be included in the definition of arms protected under the Second Amendment. It is not reasonable to presume that there must be a specific technical limitation on arms for them to be included in the category. Though current U.S. law establishes .50 caliber as the dividing line between a firearm and a Destructive Device, the BATFE has ruling authority on this issue and has ruled that firearms firing ammunition as large as .950 caliber are conventional firearms and not defined as Destructive Devices. (.950 JDJ, and other types over .50 caliber that have been accepted include hunting calibers in various types and calibers including .577, .600, and .700.) Historically speaking, there were NO practical limits on what a civilian could and could not own when it came to firearms or indeed munitions of any kind, prior to the Gun Control Act of 1934. Prior to the enactment of that law, a person could legally purchase a machinegun at a hardware store without any kind of paper trail of any sort. The GCA of 1934 was enacted as a knee-jerk reaction to the emergence of wildly violent criminal activites perpetrated by organized mobs, who were motivated by the enormous profits available to them due to the black market in alcohol products which began as a consequence of Prohibition, which, like gun control itself, was an attempt to legislate someone's version of morality on the populace. It can be readily argued that if Prohibition had never been enacted (18th Amendment), then organized criminal outfits would not have risen to significant power, and it is quite likely that in such circumstances, the GCA of 1934 might never have been proposed, much less passed. I surmise that it was nothing less than an attempt on the part of a past Congress to attempt to legislate morality that caused many problems in this country and also laid the groundwork for the passing of every unConstitutional that restricts the people's access to firearms. I argue in defense of the most liberal interpretation of the Second Amendment that is possible. The justification for this argument is simply this: Those who obey restrictive laws are not the people that the law needs to be concerned about in any event. It truly does not matter in the slightest what sort of firearms a law-abiding citizen might own, carry, or use. Any and all law-abiding citizens should be completely trusted by their fellow man and by their government to act responsibly in all matters concerning firearms. He will not endanger other people or their property with a firearm unless he is in a situation that warrants the use or threat of deadly force. It is very important to note that criminals, by their very definition, are not inclined to obey many laws. So, the result of a law being passed that restricts the ownership, possession, or use of any given firearm is NOT likely to be obeyed by the criminal type in the first place, while a law-abiding citizen is likely to obey that law even though it will effectively disarm him. The result of this is that you have an armed criminal and an unarmed law-abiding citizen, which is precisely the reverse of an optimal situation. Ideally, it is the law-abiding citizen that should be armed and able to keep the criminal element at bay, while the criminal should be effectively disarmed. Our gun laws work in reverse. They MUST be changed or even entirely eliminated in order to reverse their paradoxical effects. Furthermore, simple ownership of a firearm of any type should never be a cause for concern. It doesn't matter what a person might own. What does matter is what he does with it. A criminal with a .22 caliber pistol poses a far more serious threat than an honest citizen who owns a large collection of machineguns. Therefore, I recommend that any law that criminalizes simple possession of a firearm is a bad law that needs to be disposed of with prejudice. More later. CJ |
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Posted: 10/24/2004 10:31:03 AM EDT
[#15]
BTT because it's a good topic!
CJ |
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Posted: 10/24/2004 10:52:29 AM EDT
[#16]
Just a small point that bears repeating... the Second Amendment is not about what the People are "allowed" to have as far as arms. The Second is a restriction on ANYONE ELSE (and the wording does not limit it to the Federal Govt, anyone, Federal, State, Local, or ad hoc pseudo authorities) from infringing that right OF THE PEOPLE.
And the other writings of the Founding Fathers make the meaning of the Second Amendment perfectly clear. It is only lawyers and politicians trying to play word games that don't get it. Thomas Jefferson: "The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed." John Adams: "Arms in the hands of citizens may be used at individual discretion in private self defense." (A defense of the Constitution of the US) George Washington: "A free people ought to be armed." (Jan 14 1790, Boston Independent Chronicle.) Thomas Jefferson: "No free man shall ever be debarred the use of arms." (T. Jefferson papers, 334, C.J. Boyd, Ed. 1950) James Madison: "Americans have the right and advantage of being armed, unlike the people of other countries, whose leaders are afraid to trust them with arms." (Federalist Paper #46) Noah Webster: "The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops" (Noah Webster, 1787) Thomas Jefferson: "The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes....Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. Thomas Jefferson's "Commonplace Book," 1774-1776, quoting 18th century criminologist Cesare Beccaria in Chapter 40 of "On Crimes and Punishment", 1764. We KNOW what the Founding Fathers meant when they wrote the Second Amendment. We hear people claim "they only had muskets in those days, that is all people have a right to possess now. They never envisioned modern weapons." --BS Anyone who theorizes otherwise, twists words, redefines the clear wording of the Second Amendment is a devious liar. Yes, I include politicians, lawyers, and supposedly highly educated judges in this list. |
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Posted: 10/24/2004 11:01:46 AM EDT
[#17]
Arms means any firearms to me.
Howitzers, pistols, muzzleloaders, ect. The settlers did have cannons. CRC |
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Posted: 10/24/2004 11:03:00 AM EDT
[#18]
interesting shit, gonzo...
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Posted: 10/24/2004 11:04:43 AM EDT
[#19]
Fight4, While you are technically correct, you're realistically wrong. The socialists CAN try to pass a Constitutional Amendment that removes the Second. If it passes the States' muster, Poof! Our "right" is gone. A right denied, yes. But it CAN be taken away. Fast forward about 30 or 40 years AFTER the schools have effectively taught a few generations that "only police and military personnel need guns." If "the people" allow The Second to be removed from the constitution, then it's gone. Remember, rights can be given away. And the sheeple WILL do it themselves.  CMOS |
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Posted: 10/24/2004 11:20:51 AM EDT
[#20]
Could we just form a militia and organize with drills and everything. (oh yeah someone tried that in Texas and were hunted down and shot).
Great points throughout the thread. I'm getting a flamethrower (Only to be used burning weeds) on Monday |
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Posted: 10/24/2004 2:11:08 PM EDT
[#21]
Bump.
Great thread. CMOS |
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Posted: 10/24/2004 5:01:22 PM EDT
[#22]
No, I'm not wrong. (neither are you, by the way) Everything I own, from my dogs, to my guns, my sportscars, my SUV, I've bought legally. I've jumped through their hoops, paid their fees, filled out their paperwork, passed their background checks, submitted to their registrations and lists. My personal line in the sand - I DON'T GIVE UP ANYTHING I'VE BOUGHT LEGALLY. Let them pass what they want, my answer is MOLON LABE. |
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Posted: 10/24/2004 5:11:31 PM EDT
[#23]
I agree, thats my line also, when they come for MY guns.
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Posted: 10/24/2004 5:13:39 PM EDT
[#24]
I think that we should try for a constitutional Ammendment tying firearms ownership to a franchise. If you can vote, you can own any gun you want. That would be nice.
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