The following exchange took place during James Feldman’s oral argument today, on behalf of the Chicago government, in McDonald v. Chicago:
JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?
MR. FELDMAN: Well, there is the reasonable regulation standard, there is an article by Professor Winkler that we cite in our brief that goes very extensively through the ways that State courts have dealt with their own rights to keep and bear arms and have adopted, really by overwhelming consensus, that kind of a reasonable regulation standard, which generally recognizes
JUSTICE GINSBURG: I thought that Heller –Heller allowed for reasonable regulation.
MR. FELDMAN: Excuse me.
JUSTICE GINSBURG: I thought that the Heller decision allowed for reasonable regulation and it gave a few examples as Justice Scalia mentioned.
MR. FELDMAN: Right. Well, it’s just our view would be that what Chicago has done here, which is permit you to have a — permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own — that are most familiar with their own particular needs and their own particular problems, and in a position to balance the -the need for self-defense with the risk to the use of firearms — for violence, for accidental death and or suicide — that the City of Chicago has come up with something that is well within our tradition.
Some clarification here. Heller never adopted a “reasonable regulation” standard. Heller allows for machine gun bans under theory that they are not part of the Second Amendment (that is, they are not Second Amendment “arms”). Restrictions on gun carrying in “sensitive places” are not explained doctrinally, but they are easily comparable to First Amendment “time, place, and manner” rules. Heller says that concealed carry may be banned; in the states, the dominant theory for this restriction was that concealed carry was not part of the right. Finally, Heller‘s allowance for conditions and qualifications on the commercial sale of guns was expressed without being described as part of some kind of “reasonableness” test.
Feldman was astute to cite Winkler’s Michigan Law Review article, since that article argued that state RKBA cases use a “reasonableness” standard, which Winkler interprets as meaning that almost any anti-gun laws (including a handgun ban) are alright, as long as people are allowed to own some type of firearm.
In a forthcoming Santa Clara Law Review article, Clayton Cramerand I argue that Winkler overstates the degree of state judicial deference to anti-gun laws; we also argue that the weak standard of review cases are plainly invalid as Second Amendment guides post-Heller–since the D.C. ban itself would have been upheld under the standard Winkler describes (and for which he advocated in a Heller amicus brief along with Erwin Chemerinsky).
In McDonald, BTW, Winkler joined the all-star professors team whose amicus brief advocated for Privileges or Immunities enforcement of the right to arms.
Regarding today’s oral argument, I thought that all three attorneys did a good job arguing on behalf of their respective positions. As it turned out, only Paul Clement found a majority of the Court favorable to his core argument, but that’s no strike against the skills of Gura or Feldman as Supreme Court advocates.
Joe says:
Interesting exchange during Heller oral argument:
Justice Stevens: So we can… consistent with your view, we can simply read this:
“It shall not be unreasonably infringed? ”
Mr. Gura: Well, yes, Your Honor, to some extent, except the word “unreasonable” is the one that troubles us because we don’t know what this unreasonable standard looks like.
Justice Scalia: You wouldn’t put it that way.
You would just say it is not being infringed if reasonable limitations are placed upon it.
Mr. Gura: That’s another way to look at it, Your Honor.
Certainly–
Chief Justice Roberts: –you would define “reasonable” in light of the restrictions that existed at the time the amendment was adopted.
Mr. Gura: –Those restrictions–
Chief Justice Roberts: You know, you can’t take it into the marketplace was one restriction.
So that would be… we are talking about lineal descendents of the arms but presumably there are lineal descendents of the restrictions as well.
Anyway, either way, Heller expressly rejected a “rational-basis scrutiny” approach.
March 2, 2010, 9:47 pmEli Rabett says:
“Second ammendment arms”? Does that mean we are free to carry only flintlocks. Eli could live with that.
March 2, 2010, 9:47 pmSoldier of Fortune says:
Heller never adopted a “reasonable regulation” standard. Heller allows for machine gun bans under theory that they are not part of the Second Amendment (that is, they are not Second Amendment “arms”).
I have never understood why some arms are ok under the RKBA but other aren’t. This is illustrated by a discussion on Free Republic by a someone who wants to build an AR-15 from scratch. The discussion centered on how far you can go before the weapon is illegal, when in fact the RKBA should allow a fully-automatic weapon. There is no distinction in the Constitution between semi-auto and fully auto weapons, why should the government be allowed to make such distinctions?
As I have argued here in the past, the unorganized militia has the right to possess any weapon issued to a member of the armed forces: bayonet, M-4 Carbine, M-9 Pistol, M-16/M-4/M-14 Rifles, M203 Grenade Launcher, M240B Machine Gun, M-249 Squad Automatic Weapon, M-24 Sniper Weapon, M-40A1/M107/M110 Sniper Rifles, M-1014 Joint Services Combat Shotgun, MP-5 Submachine Gun, AT-4 Anti-Tank Weapon, and Mk-23 pistol. There is no reason why the public should not be able to defend itself without the same weapons we allow our citizens in the military to possess.
March 2, 2010, 9:56 pmHistory Punk says:
“There is no reason why the public should not be able to defend itself without the same weapons we allow our citizens in the military to possess.”
Would you favor the same regulations and punishments that members of the military face when they mishandle or misuse those firearms? For an example, when I was in USAF BMT, a woman I knew pointed a disarmed, known to unloaded, dummy rifle at someone and go “bang bang”. By the end of the day, she was Article-15ed, demoted from E-3 to E-1, given a LOR, and recycled back from week 5 to week 2 of BMT.
Or do you just prefer the fun parts of the 2nd Amendment?
March 2, 2010, 10:17 pmjack burton says:
An Article 15 is considered a “non-judicial” punishment. When you can figure out how to get a “non-judicial” punishment from a civilian judicial system then please get back to us with your questions.
And BTW, your young soldierette could have recieved the same punishment merely for mouthing off about Mr. Obama. Would you like to see the same on the civilian side or do you just prefer the fun parts of the 1st Amendment?
March 2, 2010, 10:26 pmMatthew Carberry says:
History Punk,
Are you saying that current laws concerning criminal misuse of any kind of weapon are not sufficient?
If so, why?
Further, in the real world what makes something that can shoot 10 rounds a second more dangerous than something that can only shoot 5? Either it is used safely or it is not. Either someone is hurt or they are not. Either misuse is a crime or it is not.
In a rational sense, a gun is a gun. You obey the law and use it responsibly and no one will be hurt, regardless of rate of fire.
March 2, 2010, 10:31 pmMatthew Carberry says:
I hate the edit function…
March 2, 2010, 10:40 pmYankev says:
How do you feel about cannon, which were also permitted to be privately owned at that time? Or Hellfire missiles? Rather than focus on flintlocks, one could also say that 2A permitted the highest standard of technology then prevailing. Or do you believe that speech over the telephone is not protected under 1A because there were no telephones in the 18th century?
March 2, 2010, 10:45 pmYankev says:
If you want a fully automatic weapon, why would you build an AR-15, the semi-auto only version of the select-fire M-16?
March 2, 2010, 10:47 pmTim says:
Thanks for this clarification. I was going to work on something for my own blog that argues the same thing.
March 2, 2010, 10:49 pmchris says:
Heller allows for the banning of anything “not in common use”. The proper argument from a legal perspective would be that federal regulation (the NFA) is what caused machine guns to fall into a category of being “not in common use” and thus the NFA was unconstitutional.
Not likely to happen, but I would LOVE to see the argument made.
March 2, 2010, 10:53 pmmack says:
“If you want a fully automatic weapon, why would you build an AR-15, the semi-auto only version of the select-fire M-16?”
Probably didn’t want to go to club Fed – NFA 34 and Hughes Amendment – also various state laws depending on what state he is in place additional restrictions. That’s why someplaces you almost have to hire a lawyer to know what you can or cannot legally possess as a firearm.
March 2, 2010, 11:16 pmd says:
Oh well, scratch that. I love the edit function.
The time, place, or manner restrictions are allowed when the restriction is content neutral. Banning only machine guns or just hand guns seems to be a sort of content discrimination. So, on that basis at least, it couldn’t be rationalized in the sensitive places Heller test.
If not under that Heller test, then what? The reasonableness standard? Then simply put: how is this not reasonable regulation as anything not forbidden to the congress is basically something it can get around to regulating.
March 2, 2010, 11:20 pmCrazyTrain says:
That brief really impressed Justice Scalia.
March 2, 2010, 11:32 pmSteve says:
There is no distinction in the Constitution between semi-auto and fully auto weapons, why should the government be allowed to make such distinctions?
You may have noticed that the Constitution, unlike a complex statute or a book of regulations, doesn’t go into the details regarding pretty much any of its provisions. Of course, that’s not the only reason why the Framers didn’t build a distinction between automatic and semi-automatic weapons into the Second Amendment.
March 2, 2010, 11:49 pmSoldier of Fortune says:
How do you feel about cannon, which were also permitted to be privately owned at that time? Or Hellfire missiles?
As far as I know, Hellfire missiles are not man-portable–they are fired from aircraft and Humvees. My point is that whatever a single soldier can carry and fire (without a crew) should be legal for the unorganized militia (you and me).
As far as “the fun aspects of the 2nd amendment,” any weapon requires a high degree of responsibility and respect. It requires training and discipline. If you want a joy ride, steal a car.
March 2, 2010, 11:52 pmHistory Punk says:
“young soldierette”. Nice. Actually, were part of the same elite unit as GWB and Dan Quayle.
An Article 15 is considered a “non-judicial” punishment. When you can figure out how to get a “non-judicial” punishment from a civilian judicial system then please get back to us with your questions.
Article 15s are never forced upon anyone. She could have had trial by court-martial. Also, for minor gun offenses, you could have an administrative hearing system like unemployment hearings to deal with lesser offenses such as pointing weapons.
My point was that people who fantasize and argue for the ownership of military- grade weaponry by the average yokel fail to realize that the military controls usage of those weapons with a harsh system of often severe punishments for the most trivial offense. To do otherwise would invite chaos. The person I saw Article 15ed lost tens of thousands in income, received a damaging and possibly career ending LOR, and force to waste weeks of her life repeating BMT for merely pointing for all purposes a toy gun at someone.
Have a blessed day :)
March 3, 2010, 12:08 amEli Rabett says:
Yankev, cannons are ok, if they were state of the art in 1790 or sobut Eli does love how you read stuff into the Constitution. Of course you need a team of horses to move one around, hummers being illegal thenand now and you need a permit for the horses, but by all means 1790 cannons.
March 3, 2010, 12:16 amA. Dawson says:
I have to say that when I read the Heller majority opinion… I was very disappointed.
1) I wonder if the Heller majority was aware of the type of anti-gun regulations that California passes every year. All of these can fall under “commercial restrictions”. They left a huge loophole there.
2) Machine guns can be banned because they are not in common use? The logic of this absurd and circular. The reason machine guns are not in common use is because Federal laws regarding machine guns have been violating the 2nd Amendment. In Miller, the Court reasoned that sawed of shotguns could be regulated because the that kind of firearm is not one typically used by the military (which happens not to be true). The Court simply wanted to make policy instead of correctly interpreting the Constitution. The 2nd Amendment IS about the People’s ability to resist tyrrany… shouldn’t they be armed with military weapons to do so? I put a big FAIL on this line of logic. It’s abyssmal and I’m ashamed of the opinion put forth by the majority.
3) Heller did not directly address the “shall not be infringed” part of the 2nd Amendment. Scalia went at great lengths to cover the grammar / analysis of all other parts but he deliberately ignored this part. Again, I see this as the Court making policy instead of faithfully backing the Constitution.
I hope the dicta in Heller isn’t binding because it sucks. The purpose of the 2nd Amendment is about the People’s ability to resist tyrrany. It’s not about duck hunting or protecting one’s home / family / self from thugs. (Although, those are perfectly legitimate unenumerated rights that are coincident with the 2nd Amendment’s primary purpose.)
I think it’s very telling when Scalia pronounced…
March 3, 2010, 12:24 amJR says:
Here’s the passage that I believe Justice Ginsburg is referencing. They never declared a “reasonable regulation standard,” but it can readily be inferred from Scalia’s text. From the first paragraph of Part III of the Opinion of the Court:
March 3, 2010, 12:25 amchris says:
Considering that cannon, rockets, bombs, automatic weapons and even ships of war were privately owned at the time of the writing of the 2nd amendment, I would suspect that the framers would have presumed that all of them fit within the definition of arms under the 2nd amendment. Please note that none of those were easily man portable and thus the argument that any man portable weapon should be allowed is rather limiting.
That said, I do believe that there is a level of appropriateness when it comes to regulating and restricting weapons where an “oops” can mean that an entire city block just disappeared. Anything shy of that would be an infringement in my eyes.
It is also worth noting that in most states, it is completely legal to own tanks and military aircraft so long as you have the money to do so. Typically there is some permitting involved but most people that have the money to buy such vehicles do not have much problem coming up with the permitting fees. Would I have a problem with them having fully functional weaponry on board, not at all. The people that take the time and money to buy, refinish and maintain such items are not people that commit crimes.
I think that 2 changes would be all that was needed to make the NFA almost totally acceptable to everyone in the gun world.
1) Remove the portion that requires a CLEO signature or make it so that any one that can legally own a normal gun must also be eligible for such a sign off. Since one county may allow them and a neighboring county may not, does this not fit the very definition of a denial of equal protection? I believe that this will be one of the first challenges to the NFA once the McDonald case is decided.
2) Reopen the NFA registry so that newly manufactured items could be added to the market. This would really piss off the hardcore collectors because the values of their items would drop. There are very few people in the gun community that would have a problem with this idea. Also keep in mind, the people that typically go through the process to get NFA items do not use them in crimes. In fact, finding a legally owned NFA item that has been used in a crime is almost impossible to do.
March 3, 2010, 12:46 amMatthew Carberry says:
“In fact, finding a legally owned NFA item that has been used in a crime is almost impossible to do.”
Actually it’s easy, but that’s because out of the tens of thousands of registered Full Autos (setting aside AOW’s, SBR’s, SBS’s, suppressors and DD’s) only two have apparently been used in a crime.
Two. That’s two hundredths of a percent, at best (worst?), since the registry was created.
So yeah, public safety demands the registry remain closed. =/
March 3, 2010, 1:44 am“Reasonable regulation” and McDonald | Liberal Whoppers says:
[...] the original: “Reasonable regulation” and McDonald [...]
March 3, 2010, 1:55 amJames N. Gibson says:
If your making the argument that the second only protects the possession of arms used by the Armed forces as in a ‘Well Regulated Militia” the California Assault Weapon Act is toast while the Federal control on machineguns would be okay.
Soldier of Fortune gives a grand list of arms
The problem is these arms are not general issue to all troops. Only designated members of the squad can carry the M203 weapon, or the M240B Machingun, or the M-249 SAW. Sniper weapons are for designated snipers only and the Barretts are team weapons operated as two man crews. For that matter the machinegun and the SAW also have two man teams (One carrying the gun, the other the spare ammo box).
The combat shotgun is also not general service (not any where near enough in service by procurement), the AT4 is actually considered a round of ammunition since it is only fired once, and the Mk23 pistol is for SOCOM units only (AKA Special Forces).
In short the only arms that would be universal are the M9 pistol and the M-16/M4 series of rifles and carbines (there is no M4 rifle, these are all carbines). By the way, defending these guns by arguing the 2nd only protects the arms of a militia leaves open for prohibition any 375 magnum revolver, any arms used in civil war recreations, any bolt action hunting arms (say 300 magnum) or your standard Remmington shotgun even if the ATF recently bought a bunch of them. You would have to show these are the arms of the militia to warrant protection by this logic. Thats the point of Heller, that there is no requirement that they serve a militia requirement.
March 3, 2010, 2:15 amSenator Christmas says:
If I went outside, pointed a gun at someone, and said “bang”, I’d be arrested, thrown in jail, and likely be convicted of assault with a deadly weapon. What a silly example.
March 3, 2010, 2:29 amJ. Aldridge says:
Remember in Heller Scalia says the 2A has nothing to do with military weapons but then says an M-16 can be regulated because it is a military weapon. (rolling eyes)
March 3, 2010, 2:42 amJim March says:
There’s actually support for the idea of privately owned battleships in the core Constitution. Congress has the power to issue letters of marque and reprisal, and frequently did so early on and at least up through the war of 1812.
If we look at it another way, assuming the 14th Amendment of 1868 had a major effect on the 2nd Amendment, by that time the Mormons had invented the snub-nose revolver, 15shot leverguns were well known in quantity and the Gatling Gun was a practical weapon.
March 3, 2010, 3:13 amcboldt says:
chris: — The proper argument from a legal perspective would be that federal regulation (the NFA) is what caused machine guns to fall into a category of being “not in common use” and thus the NFA was unconstitutional.
Not likely to happen, but I would LOVE to see the argument made. –
Hamblen made that argument before the 6th Circuit. He lost, but the Circuit Court didn’t rebut a single one of his several arguments. It simply asserted, correctly, that Heller reads Miller as banning certain military weapons. I assume a petition for cert. is or will be made, and I’m confident that SCOTUS will deny cert.
The source of the vast bulk of RKBA fantasy is the District and Circuit Courts. They are the ones that have corrupted the law in the first place. For example, reading Miller as standing for collective right, and Presser as green-lighting state bans on RKBA.
March 3, 2010, 5:29 amThe fix is in. The game is rigged. Such is “law.”
Alphecca » McDonald v Chicago: Opening Arguments says:
[...] and here. [...]
March 3, 2010, 5:34 amcboldt says:
– Autos (setting aside AOW’s, SBR’s, SBS’s, suppressors and DD’s) only two have apparently been used in a crime. –
GunCite – Gun Control: Machine Guns
March 3, 2010, 5:38 amThe other killer was a doctor. So, the logical legislative reaction would be to ban doctors and police from possession of full automatic weapons.
cboldt says:
A. Dawson — In Miller, the Court reasoned that sawed of shotguns could be regulated because the that kind of firearm is not one typically used by the military –
It didn’t rule. It emphatically asserted that it could not rule, because it had no evidence one way or the other whether the short barrel shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated militia … is any part of the ordinary military equipment or that its use could contribute to the common defense.”
Once supplied with contemporary evidence, the rule of Miller is that short barrel shotguns cannot even be taxed without running afoul of the 2nd amendment.
March 3, 2010, 6:24 amBrett Bellmore says:
But Miller has now been overturned by Heller. The Court might not have been honest enough to SAY they were overturning Miller, but that’s the effect of the Court misstating the Miller holding; The lower courts are no more entitled to say, “But that’s not what Miller said!” than they are to say, “That’s not what the 2nd amendment says!”
Not that they’d be inclined to, anyway. If the lower courts are going to push in any direction, it’s going to be in the direction of gutting what the Heller court left of the 2nd amendment, not trying to resurrect the part the Heller court tried to kill.
March 3, 2010, 6:50 amBill Stepp says:
The Con-job-stitution is a scrap of paper that doesn’t grant rights to do anything. The right to own a gun existed before the 55/39 criminals wrote/signed it, and it will exist after the Con-job doesn’t exist.
March 3, 2010, 7:34 amdivemedic says:
A proper reading of the Second Amendment would include ALL arms, for how can the people collectively (through their government) have a right that the people individually do not have? This would include antitank weapons, warships, and yes even nuclear weapons.
Now there are many of us that believe that individuals should not own nukes, and I am one of them, however there is a way to limit the use of such weapons that does not require the court to alter the Constitution through precedent, and that is the Amendment process.
March 3, 2010, 7:43 amcboldt says:
– If the lower courts are going to push in any direction, it’s going to be in the direction of gutting what the Heller court left of the 2nd amendment, not trying to resurrect the part the Heller court tried to kill. –
March 3, 2010, 7:56 amI agree. One reason I post corrections to common misapprehensions of what the courts have done (e.g., why I urge people to read and understand Miller, Presser, etc.) is to undermine the legitimacy of the courts. The Courts deserve ridicule at best. They are nothing but arrogant thugs.
I’m not optimistic that the public will ever be aware of the rank dishonesty practiced by the vermin sitting behind the bench.
Of course, as I think you know, I agree that the Miller decision is now dead, having been reversed and rewritten in plain view.
bfayer says:
That is incorrect. If a U. S. military member is attached to an operational Naval or Coast Guard vessel, they do not have the option to refuse Art. 15.
March 3, 2010, 7:57 amInstapundit » Blog Archive » GUNS, “REASONABLE REGULATION,” and the McDonald argument…. says:
[...] GUNS, “REASONABLE REGULATION,” and the McDonald argument. [...]
March 3, 2010, 8:13 amNick Reynolds says:
What part of ‘shall no be infringed’ do some of you NOT understand?
Also the bill of rights affirms the pre-existence of the mentioned rights it does NOT purport to GRANT them, as some want to insist.
March 3, 2010, 8:34 amStephen Lathrop says:
Anyone who knows the history of the 18th century knows that heavy reliance on the militia clause will produce confusion in the 21st century. That’s old news. The way around it is to focus on the core meaning of the Second Amendment: the right of the people generally to be armed against tyranny. That’s why the militia clause is in there, to make clear that the Second Amendment is about the political use of arms, including a right to be armed individually against your own government, so that if necessary you can join collectively for armed resistance.
That meaning implies logical consequences many on both sides of the guns debate would probably find disquieting. For instance, if there were a button we could push that would instantly turn every handgun in the nation into a fully automatic assault rifle, wouldn’t we all be safer from random crime if we pushed it? And wouldn’t the result conform more closely to the core meaning of the Second Amendment than the situation we now have?
Certainly the Constitutional goal of collective resistance is furthered by standardization of arms. And does the hodgepodge of handguns now spread throughout the land have anything at all to do with arms in the political sense the founders intended? Are America’s pistol packing punks the militias of tomorrow?
In fact, aren’t many of the lawful uses of firearms Americans now enjoy, hunting, self-defense, collecting, etc., mostly outside the core purpose of the Second Amendment. And doesn’t that imply no Constitutional prohibition against regulating those kinds of activities? I’m not talking about the law as it has evolved, I’m talking about the Constitution as it was written and plainly intended.
Conversely, aren’t the advocates for private ownership of standard infantry weapons entirely correct? Arguing to the contrary seems like simple nullification of the core purpose of the Second Amendment.
The problem is that arguing these questions on the basis of principles and pieties doesn’t ever get you to a place that’s in shouting distance of present day realities. Failure to recognize that makes absolutists on both sides of the argument seem silly, unconstructive, and sometimes disturbing.
March 3, 2010, 8:39 amIroncowboy says:
History Punk
There are no fun parts about the second amendment; it was not written for fun. It was written under the clear understanding that an unarmed population will not live in a free society. It was not written to so as to allow the Federal Government to raise an army and a navy, for this is a power expressly granted to the government in the main body of the constitution irrespective of the amendments. It was not designed to authorize the States to raise armies. As you may know, the US constitution does (not forbid) the States from raising armies, and under all State constitutions so ratified, they all provide that the State has this power granted to them under their state constitutions.
A well regulated militia, being necessary to the security of a free state; the right of the people to keep and bear arms shall not be infringed.
In the truest of from, the statement tells you why it is necessary, and then lays out the freedom that may not be infringed. The right of the people shall not be infringed. Courts have interpreted this phrase as meaning the whole body of the people, who are not the State. The 2nd amendment does not say, “The right of the state to keep and bear arms.” But [it] certainly reserved the powers not delegated, or prohibited by it to the States, or to the people. The framers know how to write, but you just don’t know how to read. It is the free people who possess the right to keep and bear arms.
As an Air Force retiree / combat veteran who served 20 years, I can most assuredly confirm that there are no pay grade “E-3” troops in BMT. BMT is the core initial training and ALL troops in “BMT” are E-1 Airman Basics, and this has been the case for well over 40 years. So, the above story about a women who was an E-3 during BMT, and who pointed a gun at someone and got an A15 cannot be factually correct. Perhaps it was after BMT, while in tech school; however, if you have ever been through this process of training, you sure as heck remember all these little nuisances that get burned into your memory. Also, an “LOR” is not part of or connected directly to an Article 15 hearing; they are two completely separate actions that can be taken against an offender. A LOR is not even “non-judicial” punishment; it falls completely outside of Article 15 of the UCMJ. One occurs before the other in succession. An LOR is never career ending; and an A15 is very very very very (rarely) career ending either, for that matter. At any rate there are too many problems with your story; therefore I have concluded that you were the woman that got the A15 and were kicked out of the service while in BMT as an E-1 because it was a live loaded weapon. Shame on you.
March 3, 2010, 8:55 amJoe - Dallas says:
Iron cowboy
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’
In the truest of from, the statement tells you why it is necessary, and then lays out the freedom that may not be infringed.
Probably the best analysis of the meaning of the second amendment ever
March 3, 2010, 9:03 amFat Man says:
SS asked the kind of question a legislator would ask. The problem is that neither she nor the other 8 are legislators.
The correct answer is that a reasonable regulation is not the subject of this case. Heller stands for the proposition that a complete ban is not a reasonable regulation.
March 3, 2010, 10:09 amMore McDonald Coverage Coming | Snowflakes in Hell says:
[...] sure others have better coverage than we do by this point. I noticed some commentary at Volokh here, here, and here. I have thoughts on McDonald I’ll be sharing today, but I have a good bit to [...]
March 3, 2010, 10:17 amDon Miller says:
1790 Cannons are currently legal for private ownership. Any black powder, muzzle loaded cannon is unregulated by the NFA and is available for sale or purchase. Most black powder weapons designed before 1870 are unregulated, whether they were muzzle loading or not.
Do a search around there Internet, there is more than 1 company out there doing business selling cannons and Gatling guns.
March 3, 2010, 10:26 amIroncowboy says:
In addendum, because the 2nd amendment is necessary to maintain a free state, and to accomplish this, it is the right of the people to keep and bear arms without infringement, you must reconcile the term well regulated. To carry out the function the amendment was intended to accomplish, that being the preservation of a free state, well regulated would not be a (restrictive limit) upon arms to possess by free people, as this would be contradictory; How can you maintain a free state by greatly limiting the type of arms that citizens could posess? Well regulated, as the framers understood, was a requirement to bring arms of the type in common use by the army and navies of the world, and drill with them on occasion.
Additionally there is no argument about the type of arms, as the 2nd amendment does not say, “the right of the people to keep and bear arms of the type in present use.” The framers knew full well the US would have a future, and things would change, as would armament technology.
A correct reading of the 2nd amendment leaves absolutely no other conclusion that free people have an absolute right to arms overall that can not be infringed; it is wise idea to maintain them and to drill with them. Truly the guns most protected are the type of arms in common use that would be able to maintain a free state by a free people during civil chaos, insurrection and war. That being Military firearms and citizen militias. In US vs Miller there could be no conclusion that a sawed off shot gun was a weapon in ordinary use that would necessarily be the type most favored at that time which would be necessary to maintain a free state by the member of the militia. Truly a sawed off shot gun is of very limited use in combat; it is entirely a personal defensive weapon, not in common use by the army or navy. Most citizens would not arrive for emergency military duty during an insurrection or attack bearing a sawed off shotgun! They will arrive bearing M-16s, M-1s, and so fourth.
Should you not do all of the above for yourselves, you shall find yourselves living not in a free society, say the framers.
March 3, 2010, 10:27 amDavid E. Young says:
This comment overlooks essential historical evidence relating to the subject under discussion. Benjamin Franklin wrote in 1747 that everyone in the colony of Pennsylvania had a firearm of one kind or another already in their hands. A militia law requring men to defend the colony and to possess arms was never adopted in that colony. Yet, the people of Pennsylvania engaged in organized defense on a number of occasions without any law either allowing or requiring such activities. The men simply associated for defense and relied for such defense on their privately owned arms.
Franklin also noted that there were 60,000 men, excluding Quakers, who were able to bear arms in the colony’s defense because they were hardy and bold hunters and marksmen. From this period evidence it is clear that hunting arms and those used for marksmanship were commonly those relied on for such organized defense. Pennsylvania was the first state to use “the people have a right to bear arms” language in its bill of rights.
Two points regarding this discussion:
First, that only particular models of a rifle or handgun have usefulness for the purposes under discussion is a rather narrow and counterintuitive argument.
Second, those interested in this subject should familiarize themselves with the relevant available history regarding the subject. Be aware that The Founders’ View of the Right to Bear Arms, which provides a wealth of previously unknown information about America’s arms related history and heritage, is available to assist modern Americans in understanding colonial and ratification ara terminology as used in the Second Amendment and the state bills of rights from which it was formed.
March 3, 2010, 10:29 amcelticdragonchick says:
I am a member of the Guilford Militia historical re-enactors, and I can confirm that muzzle loading cannon are a comment site in the Revolutionary War events I go to.
Here is one website for a machining company that specializes in historically accurate cannons…
March 3, 2010, 10:37 amSCOTUSblog » Wednesday round-up says:
[...] critique of an originalist approach to the Privileges or Immunities Clause, while fellow Volokh blogger David Kopel examines the “reasonable regulation” questions from Justices Ginsburg and [...]
March 3, 2010, 10:41 amcboldt says:
– In US vs Miller there could be no conclusion that a sawed off shot gun was a weapon in ordinary use that would necessarily be the type most favored at that time which would be necessary to maintain a free state by the member of the militia. Truly a sawed off shot gun is of very limited use in combat; it is entirely a personal defensive weapon, not in common use by the army or navy. –
See trench sweeper, Model 12 pump action, slam fire, short barrel shotgun. Used with great effect in WWI, and WWII, as well, in clearing buildings in urban warfare. Tens of thousands of these were purchased by the government.
March 3, 2010, 10:53 amSoronel Haetir says:
Sure, Congress has the authority to say “everyone needs to present themselves with XXX firearm”. The militia clauses provide plenty of authority for setting a floor. I don’t however see the militia clauses, especially in light of the 2A, as giving Congress the power to set any sort of ceiling.
March 3, 2010, 11:09 amray_g says:
I hate the whole “reasonable regulation” discussion because it is disingenuous. State lawmakers use “reasonable regulation” on firearms the way that Congress uses “regulate interstate commerce”, i.e. an all purpose justification fo do anything. “Reasonable” is rarely, if ever a factor.
March 3, 2010, 11:19 amSayUncle » McNuggets says:
[...] Kopel looks at “reasonable regulation” [...]
March 3, 2010, 11:31 amJGreene says:
The arguments against the 2nd Amendment “… A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed…” by anti-gun individuals and organizations is ALWAYS SPECIOUS.
If we as a nation, respected language and “original intent” there would be NO ARGUMENT against the right to keep and bear arms (for protection of self, others, property and against a tyranical government).
Exceptions would be only those individuals i.e. criminals, mentally impaired, et al. who might pose a danger to themselves or others in the use of the firearm/s.
Original intent MUST include the thoughts and expressions of the Founders in both their letters and writings such as the Federalist Papers.
Would be Tyrants and their lawyers have obfuscated the original intent of the 2nd amendment. If an American government ever attempts to confiscate firearms from law-abiding American citizens the only recourse then becomes using those firearms to KILL the Tyrants and their lawyers.
March 3, 2010, 12:02 pmTim says:
Sounds like someone is a little behind the times.
I joined the Army as an E-3. The same experience would have allowed me to join the Air Force as an E-2 or the Navy as an E-3. There are many, many ways that people join the military in an advanced paygrade. I have seen people enlist as E-4s–it’s not that uncommon.
I do think that poster’s comment is either full of misinformation or complete and utter nonsense, but yours contains factual inaccuracies, too.
March 3, 2010, 12:02 pmA. Dawson says:
JR… “commercial restrictions” is a big loophole… see California.
March 3, 2010, 12:09 pmajacksonian says:
The Common Law pre-Revolution made a distinction between ‘keep’ and ‘bear’. Anyone could own or ‘keep’ a cannon, warship or any other war device. ‘A man’s home is his castle’ is the concept here, and for the long coasts of Britain actually having any property meant it was prone to attack (the Algernine Pirates come to mind). The right to ‘bear’ arms meant weapons a man could bear. Thus you could carry around any weapon that you could carry, but those you couldn’t you were restricted from using for other than property or defense of the locale (when asked to by the local authority, usually the Sheriff). With that you could not trundle your cannon to the local town hall meeting, but you could use it as harassing fire against pirates wading ashore to do mayhem or simply protect your property.
Of the NFA the new production ban was an amendment to a larger bill in the 1970′s (’76 I believe) so that the market then got stopped for the purchase of new weapons. Prior to the NFA the 1920′s saw a number of automatic weapons available openly. Ads in newspapers and magazines would show a Thompson with 50 round drum mag around $350-$450 depending on model and other add-ons. While gangsters used them freely, police departments had a hard time catching up but a normal civilian could purchase one for self-defense. They were ‘commonly available’, advertised and market to civilians and no one thought much of it. Today historic weapons in pristine condition must be cut-up to be brought back into the country… the country that made them. Strange that Russians can find our old war shipments squirreled away in caves, covered with cosmoline and in such excellent condition, only to be told we don’t care about our history and fear our people, so just cut them up before you send them over. Yes the market value of the existing ones would go down, but the historical value of such arms would be more widely spread and that is a value beyond any price.
The States, as sovereign entities, did not relinquish their right to self-defense either. Art.I, Sec. 10 give the invasion or Danger such as will not admit delay proviso to the States for forming up military organizations. The right to self-defense of your State that you live in cannot be stripped from it, either, and while a State cannot form up a standing army or militia, it can and must rely on its citizens to be the final defenders of the State when the federal government will not stop invasion or Danger to the State as a whole. While this may be thought of us antiquated, the pirates of that era were still a worry, as well as worries of gangs of outlaws seen throughout history. Our modern day terrorist is of this exact, same sort: waging Personal War upon Nations and their people and putting themselves above all civilization to do so. The federal government has proven incapable of dealing with even minor acts of nature, and due to the limitations on it an actual problem that threatens a State allows the State to reclaim its sovereignty to deal with such problems.
Amendment II is a guarantee that not only will the people have the ability to resist tyranny, but that the people of a State may come to its defense when the federal government can’t or can’t do so in a timely manner. That is why Montana, Utah and Wyoming pressing forward with their own guarantees for production of in-State firearms to State citizens is so very interesting: they are defying the federal government on solid ground and they do not give up their sovereignty to self-protection to the federal government.
I would be more than happy with the CL restrictions between ‘keep’ and ‘bear’ as a man’s home is his castle: his piece of property where he may reside safely due to the liberty and his application of it to that safety. Designating certain zones and places for the non-man portable weapons would be fully interesting and in keeping with that spirit and acknowledgment of our trust in our fellow citizens. We have plenty of laws on when it is unlawful to discharge a firearm, utilize them for crimes, and so on. We deny our citizens automatic weapons, but such things as flamethrowers are perfectly legal to make, just take care when pressurizing the damn thing and where you practice with it. And even the USSR recognized that the genie was out of the bottle and allowed its citizens to make, on their own, firearms up to semi-auto… too bad our citizens can’t be trusted with more by our government.
March 3, 2010, 12:11 pmFred G says:
Here’s another twist to the argument – what about bladed weapons? The Second Ammendment addresses “arms” not guns, and large bladed knives, swords and tomahawks were certainly in common use at the time as weapons. Most states have restrictions on carrying knives, some of which are even more stringent than the gun laws. Here in Connecticut I can get a permit for concealed carry of a pistol, but there is no such thing as a permit to carry a knife with a blade greater than 4″.
March 3, 2010, 12:12 pmSoldier of Fortune says:
Soldier of Fortune gives a grand list of arms…..The problem is these arms are not general issue to all troops. Only designated members of the squad can carry the M203 weapon, or the M240B Machingun, or the M-249 SAW. Sniper weapons are for designated snipers only and the Barretts are team weapons operated as two man crews. For that matter the machinegun and the SAW also have two man teams (One carrying the gun, the other the spare ammo box).
The combat shotgun is also not general service (not any where near enough in service by procurement), the AT4 is actually considered a round of ammunition since it is only fired once, and the Mk23 pistol is for SOCOM units only (AKA Special Forces).
As you note, they are issued to individual soldiers, and to me it doesn’t make a difference if they are specialized troops or specific squad members (as a private owner of a machine gun or SAW I would make two trips, one to carry the gun and another to carry the ammo).
Considering that cannon, rockets, bombs, automatic weapons and even ships of war were privately owned at the time of the writing of the 2nd amendment, I would suspect that the framers would have presumed that all of them fit within the definition of arms under the 2nd amendment. Please note that none of those were easily man portable and thus the argument that any man portable weapon should be allowed is rather limiting.
Excluding these arms is my concession to reasonable regulation.
March 3, 2010, 12:24 pmJack Burton says:
History punk sez: Article 15s are never forced upon anyone. She could have had trial by court-martial. Also, for minor gun offenses, you could have an administrative hearing system like unemployment hearings to deal with lesser offenses such as pointing weapons.
Jack responds: And just what is “minor” about threatening another person with a gun? The law has never distinguished between an unloaded weapon and a loaded weapon for that purpose.
History punk sez:
My point was that people who fantasize and argue for the ownership of military– grade weaponry by the average yokel fail to realize that the military controls usage of those weapons with a harsh system of often severe punishments for the most trivial offense. To do otherwise would invite chaos.
Jack responds: Yes, and you have completely ignored the fact that the military controls most of our standard freedoms with a harsh system of often severe punishments for the most trivial offense. Why would you expect them to do any differently with guns.
And if civilian freedoms are not controlled as tightly, then why are you trying to make an argument that the RKBA should be singled out beyond all others and controlled as tightly as the military?
History punk sez: The person I saw Article 15ed lost tens of thousands in income, received a damaging and possibly career ending LOR, and force to waste weeks of her life repeating BMT for merely pointing for all purposes a toy gun at someone.
Jack replies: Leave it to an anti-gun person to have such a callous disregard for someone willfully and negligently breaking several of the most fundamental rules of safe gun handling.
March 3, 2010, 12:25 pmKelly says:
You thought Mr. Feldman did a good job on behalf of his position? I have only read the transcripts; but I didn’t have that impression. There seemed to be a lot of incomplete sentences and Mr. Feldman agreeing with the Justices on matters that damaged his argument in a number of instances. Even when Justice Stevens attempted to get him to agree with the core right version of incorporation, Mr. Feldman seemed either oblivious or unwilling to tie his argument to that idea.
Of course, Mr. Feldman did have a difficult position to defend, so I guess I would have to give him points for difficulty if not for completion. Still I can’t help but wonder if the argument sounded better in person or whether Mr. Kopel is being gracious.
March 3, 2010, 12:37 pmRick Randall says:
Just like Eli only has his First Amendment rights with a soap boax, quill pen, or manual printing press.
That means no Fourth Amendment rights concerning electronic surveillance at all, either.
“Arms” in 18th Century legal writing had a VERY specific meaning.
It meant the weapons and equipment suitable for an individual soldier. Including sidearms. Since the 18th Century saw fairly major changes in what “arms” were considered appropriate for military use (for example, swords went from near-universal issue to infantry privates as sidearms, to only issued to leaders — often only issued to officers), it was well understood that arms change. (Heck, the socket bayonet and flintlock were relatively new as front line military equipment!)
And Congress and the Founding Fathers certainly undestood technological progress in weapons — Congress had MULTIPLE inventors coming to them with repeating gun designs (including a 15-20 shot fully automatic design). The fact that all of these designs proved impractical from an engineering standpoint doesn’t change the fact that Congress kept looking at them as the Next Great Breakthrough.
No, it’s OK, Eli. We understand — you hate freedom and the Constitution, becuase you know YOU could not be trusted with it — therefor no one else can be trusted to act like an adult. It’s called “projection”.
March 3, 2010, 12:51 pmRick Randall says:
Actually, HER punishment was less than a typical civilian would have faced had they committed the same act.
Heck, people get SHOT for doing that stuff. The lucky ones go to jail for brandishing or assault (depending on the totality and locality).
March 3, 2010, 1:01 pmRick Randall says:
1. She did NOT lose “tens of thousands of dollars”. The pay differencial between E1 and E3 (with ZERO time in servece, recall) simply isn’t that large.
2. That “Letter of Reprimand” was removed from her file at the end of Basic, if they followed standard procedure. PLUS, anyone reading it would realize that she was only a stupid new trainee, and stupid new trainee stuff is to be expected.
3. She was recycled to an earlier stage of training, becuase she OBVIOUSLY didn’t possess the military bearing and discipline expected.
I fail to note, however, where she was imprisoned for up to a year, and fined thousands of dollars. As would have been likely had she done it as a civilian.
Don’t try and snow me, friend. I’ve thrown young recruits out of the military. Gotten rid of a few dirt bags who weren’t young trainees, either.
March 3, 2010, 1:09 pmRick Randall says:
Both guns were MAC10s, if I recall.
One used by a cop to shoot a drug dealer he was trying to rob.
The other was used by a doctor to commit a homicade — I forget vicim and motive. Somthing typically sordid, IIRC. . .
March 3, 2010, 1:12 pmRick Randall says:
For the same reason teh people (collectively) have teh authority to incacerate and even execute someone for a crime, where as when the individual does it, it’s called “kidnapping” and “murder”.
The right to “arms” is protected by teh 2nd Amendment.
The feds have the authority to raise and equip a military force.
That does not mean that a B52 loaded with nukes is an “arm” under the meaning of the Constitutional, even if the M16s the Air Cops use to guard the B52 when it’s parked ARE “arms”.
March 3, 2010, 1:18 pmwhit says:
“Further, in the real world what makes something that can shoot 10 rounds a second more dangerous than something that can only shoot 5? Either it is used safely or it is not. Either someone is hurt or they are not. Either misuse is a crime or it is not.”
there are differences that matter in terms of citizen carry vs. military. i say this as a firearms instructor and one who has personal experience with shootouts as well has having reviewed many videotapes of same, studies etc.
automatic weapons are suboptimal (to say the least) for defense purposes. they are great for laying down suppressive fire. think the famous LA bank robbery where the 2 suspects used automatic weapons quite effectively in keeping a lot of cops pinned down. however, out of all those rounds fired, NO cop was killed (a few were seriously injured) and rounds were flying everywhere. many targets hit were likely not “targeted” by the suspects.
automatic weapons are great for this kind of thing.
self defense, and defense of others shooting, as almost always experienced by people in their homes or elsewhere is not well served by automatic weapons, whereas the risk of innocent bystanders getting shot is much much higher.
in a self-defense (or defense of others) shooting, you are responsible for where every round goes. in a wartime situation where you are shooting at an enemy bunker or whatnot, you aren’t. as long as you are shooting in the direction of the enemy, you are fine. you are not required to aim each shot at a specific person (or piece of infrastructure). in a civilian setting, you ARE required to do so.
as a cop, i cannot lay down suppressive fire. at least that is what we are taught. if i am presented with a threat, i am supposed to TAKE OUT THE THREAT. AIMED fire.
generally speaking, you can’t shoot blindly, for example, just sticking your gun barrel around the corner and pressing the trigger to release a full auto fusillade. maybe (MAYBE) if you had certain knowledge that the ONLY person on the other side was the bad guy and he was shooting at you through a wall or something you MIGHT be ok, but suffice it to say it is never (or at best ALMOST never) ok to lay down such fire patterns.
thus, automatic weapons offer little to no (more probably NO) benefit to citizens engaging in lawful self defense or defense of others, and SIGNIFICANT drawbacks. it is simply put MUCH harder to use an automatic weapon responsibly and within the law as regards NON warfare deadly force.
i could probably think of SOME counterexample where a full auto in such a situation would be tactically superior and full auto fire (which by its very nature is indiscriminate) MIGHT be ok, but that’s a quibble looking for an excuse.
the reality is that self defense shooters are benefited by EFFECTIVE caliber rounds that are accurate (gun and bullet). the goal is to stop the threat.
so, legal niceties aside (god knows i am not an expert on 2nd amendment law), when you have a gun/method of fire (full auto) that almost always offers NO benefit to a self defense shooter and almost always offers significantly more risk to INNOCENT bystanders, i think it’s reasonable to say it shouldn’t be protected by RKBA.
if you are trying to hold back a line of germans advancing on your position, and keep them pinned down otoh…
March 3, 2010, 1:33 pmSteve says:
Great comment there, whit. Always appreciate your perspective.
March 3, 2010, 1:43 pmPubliusFL says:
Both were M-11s, the MAC-10′s little (.380ACP) brother. You’re right about the second being used by a doctor: Dr. Shou Chao Ho killed Dr. Carmelito Olaes with it in 1992. I think the motive was a grudge related to Dr. Ho’s firing from the hospital where both had previously worked.
Incidentally, I believe the M-11 used by the cop was department-issue. That means it wasn’t even subject to the Firearm Owners Protection Act — the 1986 law that banned manufacture and registration of new machine guns.
March 3, 2010, 2:01 pmCarl Donath says:
IIRC, a footnote in _Heller_ plainly stated that to disallow ownership of M16s would mean severing the preamble from the 2nd Amendment. I’m not sure how this “machineguns may be prohibited” principle is derived from _Heller_ in any way more concrete than “we’re not addressing that, but if we do ownership of M16s will surely be ruled a right”.
March 3, 2010, 2:06 pmcboldt says:
– as a cop, i cannot lay down suppressive fire –
March 3, 2010, 2:08 pmSome police departments have full-auto capable weapons. By your standard, they should not.
Carl Donath says:
whit,
March 3, 2010, 2:09 pmWith that in mind, shouldn’t the restriction be placed on use and not on mechanics? Just as a printing press may be used for legitimate political speech or libel, a full-auto can be used for some appropriate uses or for “spray and pray”. Ergo one should be not forbidden from owning an M16, but may be held strictly accountable for every round fired.
A. Dawson says:
As a gun owner/enthusiast I’m impressed by the number of people who are looking at this issue fairly myopically.
How on earth can you expect the Court to faithfully interpret the 2nd Amendment if they are unwilling to faithfully interpret the 14th Amendment’s P&I clause even if they know Slaughterhouse is wrong???
March 3, 2010, 2:28 pmzippypinhead says:
Here’s the problem as I see it – the incohate “reasonable regulation” mantra is going to stay in the gun control corner’s lexicon until SCOTUS finally gets around to articulating an honest-to-goodness standard of review to be applied to gun control laws in general. All we know at present is that the low “rational basis” test doesn’t apply. Reading between the lines of Heller’s dicta tending to support at least some of the prohibited person categories in §922(g) and the NFA, “strict scrutiny” also doesn’t seem to be entirely applicable. Which means we may eventually learn that the correct standard is something akin to the “intermediate scrutiny” standard posited by the Soliciter General in Heller (which is similar to that applied to voting rights, etc.)?
It would be nice if the Court would just bite the bullet (pun intended) and actually articulate the applicable standard sooner rather than later. Justice Roberts’ preference for incrementalism notwithstanding, certainty in legal rules is usually a good thing.
March 3, 2010, 2:40 pmJack Burton says:
Whit sez: so, legal niceties aside (god knows i am not an expert on 2nd amendment law), when you have a gun/method of fire (full auto) that almost always offers NO benefit to a self defense shooter and almost always offers significantly more risk to INNOCENT bystanders, i think it’s reasonable to say it shouldn’t be protected by RKBA.
Jack responds: You’re overlooking the number one (but not only) reason for the 2nd Amendment and that is to allow the armed citizenry to act as a prophylactic against a tyrannical government. For that we should have no less than being able to match up to any individual soldier, at the least.
March 3, 2010, 2:49 pmcboldt says:
– certainty in legal rules is usually a good thing. –
March 3, 2010, 2:52 pmROTFL, like the certainty created by Miller? or Presser?
The Court is able to dictate policy by fiat, and is not bound by logic or reason.
Rick Randall says:
I’d rather the Court move in small, tenative steps.
WHile getting them to overturn (or find a way around) ANY prior decision is difficult, it’s a LOT more difficult when it’s considered a major, sweeping decision.
So if they take it at one big bite, and screw it up trying to find a sweeping decision they can get 5 judges to sign off on, it will be harder to repair that damage than if you are only challenging minor issues one at a time.
The camel’s nose goes BOTH ways.
March 3, 2010, 3:03 pmzippypinhead says:
Off-topic, but still generating a lot of heat on this thread:
It’s not at all unusual today for a recruit to start at E-3. I believe all services will give that much advanced enlistment credit to an Eagle Scout, or to anyone who completed a 4-year JROTC program. You can go in at E-2 or E-3 with differing amounts of community college credit, too. So yes, it’s entirely plausible for a recruit to be busted from E-3 to E-1 for an infraction during basic. The cynic might argue it’s all part of that “well-regulated” thingie in the prefacatory clause, eh?
Once upon a time recruits could get even more rank credit. My father enlisted in the Army Signal Corps during WWII and on day one was a Tech Sergeant, or the equivalent of a current E-5, because of special skills and prior technical employment. Couldn’t wear the rank insignia during training, but it was still a little funny to him that his DI in basic was only a Corporal and technically my father outranked him (or at least was getting paid more).
March 3, 2010, 3:05 pmRick Randall says:
I loved the bit about losing “tens of thousands” of dollars in pay.
Using FY2010 pay rates, she’d be out $10,420.10. And it would only slow her promotion to E5 by a MAXIMUM of 6 months (even presuming she was competitive for E5 at 3 years time in service). THAT would cost her a maximum of another $1,269.00. A grand total of $11,689.10.
But no jail time, no criminal record.
March 3, 2010, 3:40 pmAJ187 says:
Well, Whit why isn’t it up to the average citzens to decide that for themselves. People are capable of self regulating themselves when it come to these things. It happens all the time in the firearms community.
March 3, 2010, 3:48 pmchris says:
So does that mean that the 1st amendment should only pertain to hand cranked and steam powered printing presses?
March 3, 2010, 3:55 pmStephen Lathrop says:
David E. Young:
The history you cite is but a small example of an extensive record regarding firearms law, self-defense, hunting, and political use of arms dating back not just to colonial times, but to life in pre-colonial England. Noting that as context for interpreting the Second Amendment is probably worthwhile. Noting that none of that, except for political use of arms, is IN the Second Amendment is absolutely necessary.
By studying context, both ancient and contemporary, we can read things into the Second Amendment. Using the Second Amendment as a structure to guide discussion, the more we read into it the less guidance we get. Eventually, we don’t have anything left, and must start over.
Arguably we have reached that point already. If so, it won’t be the first time that our fondness for use of the Constitution as a sacred text has had to give way to practical changes. That’s what the founders intended, by the way. For them, government was a practical problem, first and foremost. It had to be. They didn’t have a sacred text and a priesthood of anointed interpreters, but they did bequeath that kind of thinking to us, probably not intentionally.
Sometimes governing as we think the founders prescribed seems to get in the way of governing as the founders would have governed.
March 3, 2010, 3:55 pmRick Randall says:
Whit,
Please, tell us all of the massive slaughter of innocents by otherwsie law abiding citizens with leag machineguns. Break it down into categories by 1. Pre-NFA, 2. Pre-May 86, and 3. Post-May 86. (Criminals will get guns regardless — many of the machineguns of the “Roaring Twenties” were STOLEN from the police or National Guard. Heck, as early as 1921, Auto Ordnance was publicly proclaiming how they weren’t selling Thompsons to civilians anymore!)
Now, how many people have been killed by illegally possessed machineguns, DESPITE a draconian prohibition on unregistered possession? Who were most of tehse people killed by? Oh yeah. . . trafficers in already-outlawed mind altering substances.
The general right is a protection to keep and bear “arms”. Not “arms useful in civilian self-defence”.
ANY abridgement of that right must be VERY tightly scrutinized.
Want to ban guns in prisons? Fine.
Want to ban guns in mental hospitals? Fine
Want to outlaw “carrying under the influence”? Fine
Want to ban guns because WHIT doesn’t think they are practical? NOT FINE.
Most religions have silly and impractical customs (and I do not except my own faith), yet they are strongly protected.
That’s because that is an ENUMERATED right — no prenumbras here.
“Keep and Bear Arms” is ALSO an enumerated right — but one which, AS WRITTEN, has even a stronger protection than the right to worship silly things in silly ways.
March 3, 2010, 3:57 pmIroncowboy says:
A well regulated volunteer fire department, being necessary to the safety of the town’s inhabitants; the right of the people to keep and bear firefighting equipment shall not be infringed.
What is the reason for the right?
Is the reason for the right inalienable?
What does the right protect?
Who are the firefighters?
Does the amendment protect only people affiliated with fire departments?
To what degree may a government regulate the equipment that citizens would normally appear with in fire emergencies?
Can one possess a pike pole if you are not a firefighter?
If people are committing crimes with pike poles can you ban them from everyone even if this is a critical tool required in many fire emergencies?
Are only government approved fire departments lawful under the amendment?
If technology changes are the people allowed to purchase new and more efficient firefighting equipment; or rather, must they forever arrive for fire emergencies with a hand cart and bucket?
Would it be reasonable to restrict the firefighters to purchasing only 1 pike pole per month, or imposing a 30 day wait?
Could a community ban fire trucks because they are a nuisance at 3AM enroute to a fire?
Can the town ban firetrucks if people keep getting run over and killed by them?
Is the town safer when people die in burning buildings or die getting run over by fire engines?
March 3, 2010, 4:12 pmcboldt says:
– Is the reason for the right inalienable? –
March 3, 2010, 4:36 pmAll “inalienable” means is that the thing being discussed can’t be dispossessed by one person and transferred to another person. They are things that are intrinsically personal.
Not that the definition affects your analogy. My burden is having a pet peeve about “inalienable” being taken as synonymous with “nobody can take it.” Thew government can, and does dispossess individuals of their lives, liberty, and pursuit of happiness (so do non-government actors, obviously). Government does not have a monopoly on protection of life, liberty, or the pursuit of happiness – and it’s a good thing that it doesn’t.
A. Dawson says:
FTW!!!!!
March 3, 2010, 6:07 pmRick says:
March 3, 2010, 6:45 pmMatthew Carberry says:
Whit,
I’m not saying an automatic weapon would be my first (or second) choice for self-defense, even though I and millions of people in this country do actually have the training to use one (from sub-gun up through HMGs) effectively, (it’s hardly rocket science, and such training is readily available privately even to non-military).
The point is that utility for “self-defense” is not the sole or even greatest reason for the RKBA. Quite simply, if you don’t actually misuse (not “might/could/probably will” but actually do) a particular weapon you should be able to own it, full stop.
No prior restraint based on emotion driven worst-case scenarios, true liberty and freedom demand that you will be deprived of rights only after you demonstrate you no longer deserve them. Life isn’t and never will be safe and there is no way to stop the stupid or evil from proving themselves such.
Leave the responsible and law-abiding, who are the vast majority, alone.
March 3, 2010, 7:21 pmPixelkiller says:
Why should only the first amendament be “reasonably regulated”? Why not any of them for that matter? Why only the second?
March 3, 2010, 7:31 pmBrett Bellmore says:
The problem with “reasonable” regulation of the 2nd amendment, is that the people usually promoting it have a conception of “reasonable”, which if applied to the first amendment, would permit the government to demand that everyone don gags and communicate by sign language, lest they take it into their heads to suddenly seek out a (non-burning) theater in which to yell “Fire!”.
If we were dealing with a reasonable conception of what’s reasonable, things would be far different.
March 3, 2010, 8:00 pmwhit says:
it would be really nice if people would stop making crap up.
i am not saying full autos should be banned from private ownership.
i am saying there is a significant difference in terms of utility for self defense between full and semi autos
it would be nice (but unrealistic) to hope that people would stop reading stuff into what other people write and pretending to respond to what they said.
full auto firearms ARE currently legal for private ownership (legal but you have to go through some hoops). NOWHERE in my post did i say the legal status of same should be changed.
i merely responded to the posts that didn’t understand the FUNCTIONAL, PRACTICAL etc. differences.
i’m not talking, and i made it clear, LEGALLY
i am speaking PRACTICALLY
hth
(and next time, read for comprehension not based on prior bias)
March 4, 2010, 12:56 amcboldt says:
– i am not saying full autos should be banned from private ownership. –
March 4, 2010, 1:09 amOk. What about shotguns with a barrel length under 18 inches?
whit says:
frankly, i could not care less.
again, it just disturbs me that people on a site where you would THINK there would be enough education in critical thinking and reading comprehension, simply cannot read a post and understand what was written without making all sorts of unfounded assumptions.
again, i am not, was not speaking about what the law SHOULD BE.
i was correcting the posts that failed to distinguish the VERY SIGNIFICANT differences, from a practical basis between full and semi-auto fire.
full autos have lots of nifty functions, like being fun as hell on the range. but when it comes to SELF DEFENSE, as i explained, they are very inferior to semi autos.
hth
March 4, 2010, 1:20 amTim says:
Self defense is not the core purpose for the Second Amendment. Considering how good full auto fire would be for keeping down the heads of the redcoats, I can definitely understand why the founders would have wanted full auto weapons to be protected by the Second Amendment.
The ultimate purpose of the Second Amendment is to secure all of our rights against tyranny. Beginning with that, the analysis would be short and the conclusion obvious–full auto weapons of the same kind that the government would have in that instance are precisely what the citizens would need and should expect to have.
March 4, 2010, 1:31 amwhit says:
i am well aware that self defense is not the only purpose (or the “ultimate” one) of the 2nd amendment nor did i SAY it was.
i was simpy commenting on the difference for SELF DEFENSE purposes between the two types of weapons.
as for your lecture, i am well aware of the “ultimate purpose” of the 2nd amendment. nowhere did i address that, nor claim i was.
hth
March 4, 2010, 1:38 amMatthew Carberry says:
Whit,
Was your post on practical use for self-defense referring to my “difference between 10 or 5 rds per second” comment?
If so I would note that I was, in that post, responding to an earlier post by History Punk which posited, in brief, that, in fact, legality of possession should be based on arbitrary characteristics.
So we in fact agree. I would therefore suggest that perhaps the failure to comprehend in context was, at best, mutual.
March 4, 2010, 2:12 amDavid E. Young says:
There certainly is a vast amount of information relating to firearms law, etc. going back to life in pre-colonial England, but most of it is largely unrelated to development of the Second Amendment.
The Pennsylvania information being responded to above, however, is actually directly related to development of Pennsylvania’s 1776 Declaration of Rights provision that “the people have a right to bear arms”, which is the direct American predecessor of the Second Amendment’s second clause.
This language came into existence because the men of colonial Pennsylvanian were never required by law to possess arms for organized defense nor to perform any duties in that regard. Thus, the fact stated by Franklin, that practically everyone had arms in their hands and 60,000 men were able to defend Philadelphia and the colony is significant because he was proposing formation of associations for organized defense based upon individual discretion. Such associations were formed a number of times in colonial Pennsylvania for organized defense without sanction of any law. [see The Founders' View of the Right to Bear Arms, pp.14-25, for more information]
After the battles of Lexington and Concord on April 19, 1775, men all across Pennsylvanian took up their own arms and associated for defense against the British. The men formed their own companies, elected their own officers, and trained themselves for defense against the British threat to their rights, relying for these actions entirely on their natural rights. The arms involved were the same that the men used for self-defense, hunting, killing noxious pests, target shooting, etc, etc. This activity began over a year prior to formation of Pennsylvania’s new Constitutional Declaration of Rights in 1776.
Pennsylvania copied much of its Declaration of Rights language directly from that of Virginia, which was adopted earlier in 1776. Significantly, however, it did not copy Virginia’s language “that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state” which was the first clause of Section 13. Pennsylvania directly substituted “the people have a right to keep and bear arms for the defence of themselves and the state” as its own section 13 first clause in place of the well regulated militia language from Virginia. Both state’s section 13 provision consisted of a three clause article relating to control of the military by the “civil power.”
Virginia’s well regulated militia language related to the same voluntary associating for organized defense activity that occurred in Pennsylvania. In many counties of Virginia, the men began self-embodying in such armed associations months before the battles of Lexington and Concord. George Mason, who wrote the Virginia Declaration language, previously used it to describe the Fairfax County Association because the period meaning of “well regulated militia” was simply “effective militia.” It had nothing to do with government control since it was an association to defend against unconstitutional and rights violating actions by British government officials, just as the defensive association activities of men in Pennsylvanians were.
What Madison later directly based his two-clause Second Amendment predecessor on was a two-clause proposal of George Mason adopted by the Virginia Ratifying Convention in 1788. It consisted of a quote of the above 1776 Virginia language preceded by a quote from the above 1776 Pennsylvania language with “keep and” added before “bear arms” in the latter.
Just as in the above response comment, there is often a tendency in Second Amendment discussion to make it unnecessarily complex and claim it is non-understandable, to divert attention away from the Second Amendment’s direct development from American state declaration of rights sources, and to lead discussion back to Merry Old England. This is exactly what was done in the English/Early American history brief supporting Chicago from twenty-one professional historians in the McDonald case. Their brief emphasizes English sources from Blackstone back into the past, entirely ignores Revolutionary Era development of the eight first state bills of rights provisions that are Second Amendment predecessors, and discusses other American Revolutionary Era occurrences instead. Documentation of historical errors relating to American history in that brief can be found in six “London Bridge” series posts found here.
March 4, 2010, 2:15 amChris says:
Good luck with that.
March 4, 2010, 4:12 amJ. Aldridge says:
Tyranny of a standing army.
March 4, 2010, 9:53 amDavid E. Young says:
Here is how A Pennsylvanian [Tench Coxe] described the purpose of James Madison’s Second Amendment related proposal to Congress:
Coxe specified the possibility of tyranny from civil rulers and injury from the military as reasons for protecting the right of the people “to keep and bear their private arms.”
March 4, 2010, 10:16 amRick Randall says:
Um, Whit?
Let’s go back to THIS comment:
Right there, you state that you think it is reasonable that full automatic weapons are not protected by the Right to Keep and Bear Arms.
Since the purpose of “self defence” is not the only (or even the ulitmate) pourpose of the Right to Keep and Bear Arms, how do you logically claim that people are “making stuff up” when they call you on this statement?
You say that such arms are not reasonably protected by RKBA. Period.
Not even, “I think it’s reasonable to say that these arms are useless for self defence, and therefore can be more tightly regulated than other arms that do enjoy full RKBA protection.”
You say that they HAVE NO RKBA PROTECTION.
March 4, 2010, 10:46 amA. Dawson says:
Scalia, for the majority, in Heller:
I think Scalia pretty much all but admitted to whittling away the primary purpose of the 2nd Amendment.
I think it is not the place of the Court to do so… even if that’s the political reality of it.
March 4, 2010, 11:33 amRick Randall says:
I don’t see it.
he said “. . . some think that the Second amendment is outmoded. . . ” — and then goes on in the very next sentance to say that “. . . it is not the role of this Court to pronounce teh Second Amendment extinct.”
Just as, earlier on, he says, “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
What he didn’t do is raise the red flag and declare all gun laws unconstitutional in one ruling.
NO WHERE in the Heller decision do they actually lay out “court approved” reasonable regulations — they only note that some exist.
Gee, go figure — a right that has SOME limits on it, somewhere? You mean like EVERY OTHER RIGHT? How “statist” of him. . . (Sarcasm off)
I’ll cover one right off the bat, that NO ONE seriously challenges — you lose the right to keep and bear arms while actually in jail, even if you haven’t been convicted yet.
Heller is remarkeably mute on the answer as to WHAT regulatons may be permissable — only that a total handgun ban is not permissable.
Just as Miller didn’t actually address the validity of the NFA, nor it’s applicability to a Short Barrelled Shotgun.
Which is why there is already follow-on case concerning DC’s gun laws. . . to explore the limits that were ignored in Heller as not being subject to dispute between the parties (and thus not before the Court at all).
March 4, 2010, 11:43 amJack Burton says:
Reasonable? In light of your effort to later say “i am not saying full autos should be banned from private ownership.” I would say you’ve effectively contradicted yourself.
March 4, 2010, 12:16 pmkmh says:
Feldman was astute to cite Winkler’s Michigan Law Review article, since that article argued that state RKBA cases use a “reasonableness” standard, which Winkler interprets as meaning that almost any anti-gun laws (including a handgun ban) are alright, as long as people are allowed to own some type of firearm.
I don’t know why they don’t just pound this argument down. I think it is their best one.
Also, it should be noted, that this would mean, according to the 4 diessenting judges in Heller that, the 2nd amendment could be incorporated to the states but a handgun ban wouldn’t be unconstitutional because people could still use other guns/arms
Any anti-gun law could pass as long as citizens were still allowed to posses some type of arms. It’s hard to say your right to bear arms is being infringed when you are holding a gun in your hand. (even if it is a shotgun and not a handgun)
March 4, 2010, 12:51 pmRick Randall says:
It’s hard to say your right to
bear armsfreedom of religion is beinginfringedabridged when you areholding a gun in your handfree to join any type of Protestant Christian church you like.There, I fixed it for you.
March 4, 2010, 12:53 pmStephen Lathrop says:
Reluctant to mention this on a site so chock-a-block with lawyers, but argument-by-analogy tends to be poor quality stuff. Much better if you can make your case with direct arguments regarding the topic under discussion.
For instance, in the example you cite, what happens to your analogy if instead of “free to join any type of Protestant Christian church you like.” the substitute language becomes, “prohibited from practicing human sacrifice.”? Bring that alternative in and you get dueling analogies, with all sorts of arguments, all of which are beside the point, about which analogy better mimics the case under discussion. Much better to stick to the point itself.
March 4, 2010, 2:23 pmRick Randall says:
Not quite the same.
The analogy I offered is exactly on point — the proposal that it’s fine to ban a bunch of choices, so long as an alternative choice still remians.
Your anaology proposes that it is fine to allow everything, as long as you only ban conduct nearly universally abhorred in the society in question and already forbidden.
March 4, 2010, 2:27 pmRon says:
Let’s face it: The SCOTUS doesn’t have the collective balls to state that strict scrutiny applies (even though it should) because they are afraid that most if not all firearms laws would fail the test. How is that for legal analysis?
Heller is an empty promise because you could drive a truck through the holes left in the opinion permitting regulation (see Nordyke).
So we are left with a decision in Heller that for practical purposes decides nothing but allows for lower courts in the future to pick away at the “individual right”, until it is no more.
Either side can proffer eloquently phrased legal arguments, but the practical result is that our rights continue to be whittled away.
March 4, 2010, 5:37 pmJ. Aldridge says:
Coxe is talking about how military forces would be raised and kept among the population at the discretion of the civil rulers who might use this military force to enforce their rule.
Same complaints the English had over armies raised which the militia was supposed to take away this ruse of maintaing military forces. You been listening too much NRA propaganda.
March 4, 2010, 10:37 pmDavid E. Young says:
Exactly. This proves the Founders well understood that civil rulers could tyrannize and that the people would always need to be guaranteed their right “to keep and bear their private arms” to guard against such nefarious activity. [The Origin of the Second Amendment, p.671]
Tench Coxe’s description of Madison’s proposal to Congress was published in 1789. But, the NRA was not formed until somewhere around 1871, or over 80 years later than Coxe’s description was written and published in the newspapers.
Exactly how was Tench Coxe writing propaganda for the NRA over 80 years before it came into existence?
March 5, 2010, 3:02 amMark says:
Does anyone know when the decision on this case will be announced? Arguing about the arguments is interesting, but when will we know the effects?
March 8, 2010, 7:24 amRick Randall says:
June.
March 8, 2010, 11:28 amPamela says:
Hi – thanks for the post. I never know what I will come across when I scroll these blogs. But just wanted to let you know I really liked yours. Keep it up.
Pamela
March 15, 2010, 7:47 pm