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Posted: 5/28/2003 8:39:20 AM EDT
I got this forwarded the other day. Its a discussion of avoiding the "slippery slope" inherent in 2nd amendment rights analysis. What do you legal guys think:
> framework that should help deal with the slippery slope > argument (i.e., if "arms" are constitutionally protected, > then why can't Joe Blow go and pick > up his own 60 mm mortar launcher, etc.). Also, as you'll > see, it builds in > a sort of "fluid" factor under which the decisions by the > government are important. > > I use as my starting point the decision in US v. Miller, > which I read in a manner nearly identical to Kleinfeld's > dissent today. Several truisms come > from the case: (1) the 2nd amendment right is an individual > one; (2) it > protects weapons particularly apt for use by "militia"; (3) > it also protects the type of arms useful in preparing and > training; and (4) most importantly, the decision there was > based on the defendant's failure to supply evidence that the > weapon that had been regulated could meet the constitutional > purposes, and not a determination by the courts that such a > weapon could never meet the constitutional purposes. > > Anyway, without further ado, here's my test: > > FIRST: Is the weapon sought to be protected from regulation > comparable (in > terms not only of caliber, firepower, functionality and > features, but also appearance and ergonomics) with the > weapons that federal, state and local authorities regularly > and customarily deploy (i.e., make available), or have > traditionally deployed, including reasonable equivalents, to > INDIVIDUAL local, state or government actors (i.e., single > individuals) for purposes of either possible application to > the domestic population or, in the case of standing armed > forces, for defensive application upon US soil as against > invaders or enemies of the state? If so, then the "arm" is > presumptively one which the framers of the 2nd Amend. > intended to be available for citizen ownership (i.e., "keep") > and use (i.e., "and bear") in order to, inter alia, ensure > citizens will have an equal footing with the government > actors who must act by and for the population, but with > their consent. > > The first element casts the net of protection, and casts it > broadly -- although the government has the power to narrow > the scope of protection by itself eschewing certain > classifications of weapons from the realm of "individual > issue." This has the effect of adding an organic element to > the test, such that increases in technology don't lead to > unending escalation of arms (i.e., the technology slippery > slop). So, for example, if someone invents a plasma cannon > for issuance to individual infantrymen and which vaporizes > any target on contact, the government can elect NOT to deploy > these to its individual soldiers and to restrict deployment > to federal, state and local law enforcement officers, thereby > keeping the weapon out of the "net" cast by my test. > > > SECOND ELEMENT: > > Does the weapon's function, technical limitations, practical > effects and proportional sphere of influence result in a > situation in which the citizen of average proficiency can be > expected to reasonably yield and employ the weapon in a > sufficiently "discriminate" manner as to comport with both > the citizen's responsibilities as a part of the militia and > with notions of individual constitutional responsibility? > (Think, here, of the first amendment speaker's > "responsibility" not to yell fire in a crowded theatre; of > the newspaper publisher's responsibility to act without > actual malice and to evaluate words so as to avoid libel; of > the search and seizure proponent's responsibility to take > steps so as to have a reasonable > expectation of privacy. Think of this aspect of the test as > the limitation > that flows from the prefatory clause as to a "well regulated > militia" all sort of rolled together with the notion of > "ordered liberty" in the Court's other cases). > > As you can surmise, the second element is the gate keeper and > is intended to check the "why can't I have my own flame > thrower, RPG, howitzer, abrams tank, or mortar" slippery > slope problem. Once the first element is met, the second > element decides the type of scrutiny to be applied to regulation. > > Thus, If a weapon meets the first test, and ALSO meets the > second test in that it proves capable of use in a > sufficiently discriminate manner to comport with ordered > liberty and the constraints of a citizens' militia, then it > is both presumptively protected and may be regulated only > upon satisfying the strict scrutiny test as that test has > been formulated in the > realm of free speech: The government must show a compelling > governmental > interest for the regulation, and that the regulation is the > least burdensome means of reaching the proffered interest. > As with free speech, I envision that the "prior restraint" > type of regulation (e.g., outright bans) will be difficult to > justify given the availability of point of sale regulation > and registration. In other words, even if the government > establishes a compelling interest in addressing the use of > machine guns in racketeering and organized crime, the > outright ban of such weapons may fail to meet the narrow > tailoring requirement if registration and tax stamp treatment > ala the original gun control act would suffice to meet the > criminal use issue. While a registration regime might freak > out some pro-gun proponents, my sense is that this is only > because the courts have not firmly established individual gun > rights. Registration is not so frightening if the courts say > that while the government may regulate, it cannot confiscate. > > Failure of the second element does not in my estimation give > the government > unlimited authority. If a weapon is presumptively protected, but is > incapable of use in a manner fitting to a militia or that > would comport with individual constitutional responsibility > and ordered liberty, it may be regulated under intermediate > scrutiny or possibly even rational basis analysis. This is > interesting, because in my view all of this nonsense > cosmetic-based gun regulation (does it look scary?) would > fail even the rational basis test. > > Finally, if a weapon is not even presumptively protected > under the first element, then it may certainly be regulated > under the rational basis test. > > As noted, non-ban non-confiscatory prior limitations, such as > registration, might be constitutional, depending on the > interplay between the chilling effect they might have on gun > ownership weighed against the interest being > served. (Example: the $200 tax stamp required for civilian > ownership of > "full auto" machine guns probably is OK). As to my second > element, please > consider that the issue here isn't whether the guns are > inherently dangerous; indeed, we already know that (as did > the founders). Instead, the "sufficiently discriminate" > aspect of the test really asks the question: Can the average > citizen be expected to employ this weapon without taking out > large number of innocents who are not targeted? >
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(continued in next post)
Link Posted: 5/28/2003 8:40:36 AM EDT
> Anyway, watch how this plays out.... Here are some examples > of how various weapons fare under my test: > > Example 1: Traditional Revolver: > > First Element: The revolver of pistol caliber firepower has > long been a staple of local, state and federal law > enforcement. At times in our history, it was also a military > issue arm. It has been traditionally issued to individuals > for purposes of domestic application of law, and for the > common defense. Its presumptively protected. > > Second Element: Function: A revolver takes a conscious > act of the user > to discharge each projectile, and therefore, gives the > citizen the ability to consciously exercise free will as to > each shot fired (you'll see where > I'm going with this below). Technical limitations: Limited > ammo capacity; > small arms cartridges therefore short range; Practical effects and > proportional sphere of influence: Single projectile with > each round, and > they're non-explosive so no need to consider "casualty > radius." In sum, I > think it easily meets the second test. Its the type of > weapon we can expect our citizens to employ as part of a > militia in a sufficiently discriminate manner as to comport > with constitutional responsibility and ordered liberty. > > Example 2: 60 mm Tube Mortar > > First element: I don't' t think this weapon even meets the > first element. A mortar and shells is not regularly or > customarily employed by federal, state or local law > enforcement at all; and in the military, its not an > "individual issue" type of weapon. Usually there are mortar > crews. There's > no need to get to 2nd element of test, but if you got there: > Its clearly > NOT capable of "discriminate" use tempered by individual > constitutional > responsibility, by its very design. As a long range "blast" > weapon with a > large casualty radius, it is indiscriminate by nature. > > > Example 3: M203 Grenade Launcher (These strap onto > existing weapons). > > First Element: I'm not aware of any law enforcement agency > local, federal > or state, that issues these for application against the > domestic population; however, they are issued to the > military. These are ALSO issued to > individuals. As a result, there is presumptive protection. > However... > > Second Element: A 40mm grenade has a range of 400 meters, > at which it will > kill everything in a radius of 10 to 20 feet. Its a blast > weapon. Its > designed to be less discriminate than well placed small arms > fire. I'd argue its incapable of being employed by the > citizen of average proficiency > in a sufficiently discriminate way. So, regulate under intermediate > scrutiny or rational basis analysis. (as an aside, the very > reasons the > weapon is not sufficiently discriminate are probably the same > reasons an outright ban on civilian ownership and use would > always pass even intermediate scrutiny). > > > Example 4: AR-15 Semi-Automatic Rifle (semi-auto first to > show nuances of > test) > > First Element: The AR-15, even in semi-automatic configuration is a > frequently deployed law enforcement long-arm - especially > with high capacity magazines. The rifles deployed to > military personnel also allow semi-auto fire. My test would > presume that if the government has and employs these, > including as against the domestic population for ordinary law > enforcement, then the citizenry should be entitled to keep > and bear them too. > > Second Element: It's a single-round per trigger pull, very > accurate firearm. > Again, each projectile sent downrange requires a conscious > decision. This > is key, in my opinion. You make the decision to shoot each > and every shot. > As a military style weapon chambered for our national defense > forces' cartridge, it is particularly suited for use by the > citizens' militia due to availability of spare magazines and > ammo. In my view, it therefore meets the second element. > > > Example 5: M16 or other Fully Automatic Machine Gun > > First Element: Yes, the full auto machine gun - for better > or worse - is > an arm that is frequently deployed for domestic law > enforcement, and is also the weapon of choice for issue to > individual infantrymen. Under the notion of equal footing > between the citizens and their government envisioned by the > founders, such weapons are presumptively protected and meet my first > element. However... > > Second Element: Is a fully automatic weapon - by virtue of > its sphere of > influence and operation under which successive rounds are > fired without a new conscious decision by the operator, a > weapon that is capable of being deployed with in a > sufficiently discriminate manner so as to justify its use > in a militia and comport with ordered liberty? It's a close > call, but > ultimately I would argue that it fails the test here and is > therefore an appropriate subject for regulation by > legislation which includes findings as to why the arm is not > sufficiently capable of discriminate use. This begs the > question as to what kind of regulation, of course, but we > have a long history under the National Firearms Act > suggesting that registration regulation at every point of > sale is probably good enough, and that an > outright ban may be too much. Who knows, however. know a > lot of people > who would say that fully auto small arms can be used > discriminately enough to pass my test. The idea of this test > isn't to make either side particularly happy, but to try and > envision a framework that the courts would feel comfortable applying. > > > Example 6: Flame Thrower: > > First Element: Not deployed by domestic law enforcement, > but has been in > the military. > > Second Element: Probably not discriminate enough. > > > Scope Equipped Bolt or other Action "Sniper" Rifle: > > First Element: Probably presumptively protected. > > Second Element: Passes, in my view. > >
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Link Posted: 5/28/2003 11:25:05 AM EDT
The problem with such a test is there are those in our government (and hidden) who would want to set their own test parameters, and interpret them as narrowly as possible to restrict the citizens of ownership of firearms and other weapons. The Second Amendment has no such limitation, it says the GOVERNMENT is forbidden to infringe on the rights of the citizen. The Second Amendment does NOT grant us those rights, we already have them.
Link Posted: 5/30/2003 5:07:23 PM EDT
That is brilliant piece of work. But I agree that we already have the right to bear arms. Nobody said right to "duck hunting"
Link Posted: 6/9/2003 3:06:56 AM EDT
Originally Posted By Doctor_Chicago: That is brilliant piece of work. But I agree that we already have the right to bear arms. Nobody said right to "duck hunting"
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Indeed. Hunting ironically, is a privilige, granted by the state and is not constitutionally protected nor insured. The right to bear arms on the other hand is so. Private citizens/businesses owned military naval craft as well as state of the art weponry.
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