A commenter discussing the gun show case writes, among other things,
So, along with Chicago and DC trying to keep poor people from exercising their “fundamental right” by pricing permits/licenses/training/registration out of their reach, now California is trying to reduce the Second Amendment to a “want” instead of a “RIGHT”. The standard of review should be “SHALL NOT BE INFRINGED”.
The trouble is that “shall not be infringed” doesn’t resolve much until we figure out what it means to “infringe” a right. Is it an infringement of a right to bear arms to say that you should sell guns on your property (or on the property of someone who agrees to let you sell them), but that you can’t sell them on government property? How about to say that you can’t even possess them on government property? What if you are free to possess many kinds of guns, but not certain other kinds of guns that are very similar to them? What if you have to pay a relatively small fee to get a license to have a gun (which the government must give you once you pay the fee), or to organize a demonstration, or to get married?
Historically, the answer courts have generally given is that “reasonable regulations” of the right to bear arms aren’t infringements, while “prohibitions” are infringements. That of course just pushes the problem back to the question of what’s a reasonable regulation and what’s a prohibition (or an unreasonable regulation); and I think the courts have sometimes found gun restrictions to be “reasonable regulations” when they should have struck down the restrictions as excessively burdening — and therefore infringing — the right. But I mention the historical answer because it suggests that American law has long recognized that not all restrictions are infringements; and my sense is that it is consistent with much of the thinking of the Framing era, in which (for instance) many kinds of restrictions on speech were seen as permissible reasonable regulations.
Likewise, courts dealing with most other rights — such as the rights to free speech and abortion — have not treated all restrictions as “infringements” or “abridgements.” (This is especially so with regard to the government’s control over its own property, which is at issue in the Nordyke v. King gun show case, but it’s even true with regard to people exercising their rights entirely on and with the private property of consenting private individuals or organizations.) And I think as a general matter this is probably the right interpretation of the constitutional provisions. But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an “infringement.”
Now this having been said, I’m happy to argue against restrictions that really are infringements; I discuss some in this article. But it’s not enough just to say “shall not be infringed,” especially when we’re in an area — such as government control over government property — where some degree of government restrictions have long been accepted in many areas.
cboldt says:
The Miller case held that a tax on a weapon that “has some reasonable relationship to the preservation or efficiency of a well regulated militia [... or] is any part of the ordinary military equipment or that its use could contribute to the common defense.” is afoul of the 2nd amendment. It didn’t dicker over the size of the tax.
July 19, 2010, 7:43 pmcboldt says:
– But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an “infringement.” –
July 19, 2010, 7:49 pmMaster of understatement! At this point, [most, not all] domestic violence misdemenants and felons are outright barred; depending on where one lives, it may cost a couple hundred bucks to be granted freedom from being arrested for possession of a 22 caliber revolver. Most every state regulates or treats bearing in a way that bars it, unless specifically permitted. I see all of these restrictions being held “not infringing” on the logic that “infringe” means “total bar.” If it’s not a total bar, it’s not an infringement. For example, if the government permits possession of [list of weapons] on application and payment of fee, the RKBA is not infringed.
ShelbyC says:
It sounds like the question isn’t what “shall not be infringed” means but what “the right to bear arms” means.
July 19, 2010, 8:02 pmafmcclint says:
BUUUUURRRRNNN!!!!
July 19, 2010, 8:06 pmBen P says:
More likely I would say that it’s elements of both.
Drawing from the free speech context we have rulings that say both. There are certain things that are simply “not speech,” there are certain things that are considered speech but are not protected under “the freedom of speech” (obscenity, fighting words, threats etc) and certain ways that even protected speech may be regulated (content neutral, time place manner etc).
I don’t realistically see any court ever overturning portions of the Firearms Act of 1932 and ruling “The Right to Bear Arms” prohibits limits on possessing “Machine Guns” or “Destructive Devices.” But I could see a court ruling that “The right to bear arms” making certain distinctions between firearms that may be legally owned and those that may not without some significant basis. (IE compelling, persuasive, reasonable etc)
On the other hand, things like waiting periods and background checks would clearly be interpreted under “infringed” rather than on whether or not your “right” includes the right to have a gun right now vs 3 days from now.
July 19, 2010, 8:14 pmSteve2 says:
Professor Volokh, is it possible to have an absolute categorical phrase that courts will actually interpret in an absolute categorical manner? And if it is, what would it have to be, seeing as phrases like “shall not be infringed” or “shall pass no law” don’t cut it?
I should say, I disagree with you that allowing regulations is the right interpretation of the provisions – I see the language of the provisions as absolute, so any regulation is impermissible. I’m wondering what sort of language you would regard that as the correct interpretation of, though, and what (if anything) you think the courts would interpret that way.
July 19, 2010, 8:34 pmcboldt says:
– I don’t realistically see any court ever overturning portions of the Firearms Act of 1932 and ruling “The Right to Bear Arms” prohibits limits on possessing “Machine Guns” or “Destructive Devices.” –
July 19, 2010, 8:36 pmAgain overturning. The 1934 NFA was overturned by the District Court, indictment quashed.
Urso says:
I’d draft it like so:
July 19, 2010, 8:41 pm1. Congress shall make no law respecting the [etc.]
2. Guys, we’re really serious about the “no law” thing.
3. No, really.
cboldt says:
– is it possible to have an absolute categorical phrase that courts will actually interpret in an absolute categorical manner? –
July 19, 2010, 8:44 pmI’ll take a stab at that. The answer is “yes,” it’s possible.
What it takes is for the permit or restriction to be sufficiently narrow. “Right to keep and bear arms” is not narrow.
Some Court holdings can be converted into an absolute categorical phrase.
cboldt says:
– I see the language of the provisions as absolute, so any regulation is impermissible. –
July 19, 2010, 8:50 pmFWIW, I don’t think so. I can see manner and place restrictions on substantial quantities of explosives. I’m thinking in the nature of zoning regulations, not prohibitions.
Syd Henderson says:
Steve2: I should say, I disagree with you that allowing regulations is the right interpretation of the provisions — I see the language of the provisions as absolute, so any regulation is impermissible.
Except there’s this pesky clause about a well-regulated militia in the 2nd Amendment which suggests there is regulation that doesn’t constitute infringement.
July 19, 2010, 8:50 pmOwen H. says:
Steve2- you do not see a difference between the words “abridging”, and “infringing”?
July 19, 2010, 8:52 pmSteve2 says:
Not really. They both mean making it less than full, after all.
Wouldn’t being narrow make it not categorical?
July 19, 2010, 8:54 pmcboldt says:
– this pesky clause about a well-regulated militia in the 2nd Amendment which suggests there is regulation that doesn’t constitute infringement. –
July 19, 2010, 8:57 pmYes, the early laws that required possession of a firearm, and also required periodic participation in military drills – those were not an infringement, and were aimed at maintaining a public that was proficient in the military arts.
What were the early laws that limited private ownership?
The 1934 law that taxed the transfer of short barrel shotguns and machine guns was found unconstitutional by a federal court.
cboldt says:
– Wouldn’t being narrow make it not categorical? –
July 19, 2010, 9:00 pmMaybe we’re dickering over the meaning of “categorical.”
There is the category, “fish;” another category “goldfish;” and another category “goldfish between 2 and 3 inches in length.” My premise was that a category can be defined narrowly. If, by definition, a category is broad, then I change my answer to “no.”
RKV says:
“What were the early laws that limited private ownership?” You already know the answer – the ones that made it illegal for slaves, indentured servants and natives to own guns. And there were plenty of those laws.
July 19, 2010, 9:09 pmSoronel Haetir says:
I have given the abridge vs infringe difference some thought and the answer I come up with is that shall not be infringed is in fact a much broader prohibition on government action.
If you’re sitting in your chair and I come sit on you I am infringing on your use of the chair, but I am not abridging it. To abridge your use I would have to prevent you from taking your seat, using it as a storage spot or any other use you might put a chair to.
I don’t see any court actually giving the provision such an honest reading. It’s just not in the nature of the people we put in office.
July 19, 2010, 9:12 pmAllan Walstad says:
It seems to me that we ought to be able to get significant mileage out of the assumption that 2A deserves the same sort of deference as 1A. They’re not identical, of course, but a firm line ought to be drawn at least at the point where 2A is being treated as an unwanted stepchild.
Nothing pesky about it, Syd. This is one of those cases where historical scholarship helps out. “Well-regulated” was used to indicate something operating properly, serving its function. Not necessarily that it was the proper object of manipulation by pols and government bureaucrats. Even today, when the barrels of a double-barrel shotgun are “regulated,” it means they are firing in the same direction, although this may be uncommon usage by now.
July 19, 2010, 9:14 pmBob Stump says:
A fundamental right should not be infringed upon unless it interferes with another right with a significant public interest. Translation maybe: strict scrutiny, as the appeals court in MacDonald v Chicago hinted should be applied to cases where a core right is involved. Now, perhaps that same Seventh Circuit will get a chance to show those colors if it eventually hears another Chicago gun case, Illinois Firearms Owners v City of Chicago, recently filed in the lower court.
Regarding fully automatic machine guns, they are legal now, but only after a cumbersome permitting process and a stiff fee. Both of which are unconstitutionally burdensome and will be junked eventually. But as SCOTUS made clear in Heller, a citizen is at the least entitled under the Second Amendment to keep and bear weapons in common use by the police and military forces.
July 19, 2010, 9:15 pmjack osborne says:
The politics of the second amendment are the problems!
the Right to Keep means what it says.
The Right to Bear means what it says.
The militia clause is simply that, a clause explaining the necessity of the rights.
It is only the political meanings that cause the problem
But, the opponents of 2nd will hack away, parse away, and amend the meanings of the two things to accomplish what they want to accomplish!
Just like the have to the first Amendment, in the interest of common good, and social justice, or whatever!
Believers in gun control are believers in gun control, and will seldom admit to any rights of the public to possession of weapons.
Why? I don’t know! Probably for same reason that obscenity,etc., are not protected free speech. Someone might get hurt by the actions.
Explain how attorneys can interpret words to mean something other than the common meaning and you may find out how these things happen.
July 19, 2010, 9:18 pmcboldt says:
– You already know the answer — the ones that made it illegal for slaves, indentured servants and natives to own guns. And there were plenty of those laws. –
July 19, 2010, 9:22 pmThat’s it? That’s your answer? No restrictions other than that?
cboldt says:
– Regarding fully automatic machine guns, they are legal now, but only after a cumbersome permitting process and a stiff fee. Both of which are unconstitutionally burdensome and will be junked eventually. –
July 19, 2010, 9:27 pmThe federal courts have, post-Heller, upheld all the machine gun restrictions now on the books. The cases have been decided in Circuits, and SCOTUS has denied cert. The new test is “in common use for lawful purposes” and the government can constitutionally put a weapon out of common use by banning it.
The post-Heller ban is accomplished by the Heller Court’s fabricated history that begins, “Miller’s conviction was upheld.”
Mahles says:
Hey, can we please just repeal the (barbaric, antiquated) 2nd and be done with it?
July 19, 2010, 9:33 pmcboldt says:
– Hey, can we please just repeal the (barbaric, antiquated) 2nd and be done with it? –
July 19, 2010, 9:38 pmEven if/when the 2nd amendment is gone, the people have the RKBA. See Presser.
Dan says:
I’m not a lawyer, but it seems like the 2nd amendment should be treated like any other right. The government has the right to make reasonable rules about, say, the first amendment. You can’t use speech to incite a riot, or use “fighting words,” and to regulate where and when speech or demonstrations occur in order to keep the peace. They can also charge small fees and require permits.
As a lifelong gun owner (who has never been accused of or committed any crime worse than a traffic infraction), I have no issue with regulations that have similar goals.
The issue for me is when the state seeks to set the bar of regulation so high that an ordinary person essentially loses his ability to excercise his gun rights. Imagine the outcry if, for example, the mayor of Chicago publicly said his goal was to eliminate free speech or political demonstrations in his city. The uproar would be overwhelming. Yet that is EXACTLY what he has done toward second amendment rights in his city.
July 19, 2010, 9:38 pmcboldt says:
– They can also charge small fees and require permits. –
July 19, 2010, 9:42 pmI pointed out in the other thread from today, that Presser/Cruickshank asserts it is unconstitutional to impose a fee on peaceful public assemblies that arise to petition the government for redress of grievances. I asked what case or cases since then have reversed or overturned that.
How much do you have to pay for the privilege of voting?
Fredosaurus Rex Friday XIII says:
Therefore, it naturally follows that a tax of 100% of the U.S. GDP per gun would be reasonable.
July 19, 2010, 9:51 pmFredosaurus Rex Friday XIII says:
As a constitutional amendment: “This right shall be absolute and shall not be subject to any degree or kind of limitation or disparagement by any statute, rule, regulation, interpretation, or constitutional provision.”
That’s probably as close as I could get in a short sentence.
July 19, 2010, 10:01 pmOrder of the Coif says:
No. It is IMPOSSIBLE to write any phrase that 5 determined Justices cannot turn into meaningless mush that places no realistic restriction on governmental action. Simply impossible. Justice Thomas is correct, more than he realizes, when he says “they just make it up.”
In a very important way, this makes the existence of an armed populace essential as well as “necessary to the security of a free” society.
Otherwise we just have an appointed Aristocracy of 5 lifetime “Princes” who really do “just make it up.”
As this recent article in the WaPo says, it’s all subjective.
July 19, 2010, 10:12 pmAsterix says:
I’m sure there are plenty of people who want to repeal the (barbaric, antiquated) 1st and be done with it, but that doesn’t mean I want them deciding my rights.
Also “In common use for lawful purposes” by any reasonable interpretation includes law enforcement. If you don’t want regular citizens to have machine guns, maybe you should lobby the regular citizens in your local police department to give up theirs.
July 19, 2010, 10:14 pmBrandon Combs says:
Depending on the jurisdiction, that question could be answered differently.
Whatever it costs to operate the respective voting program, it is allocated indirectly through county, state and/or Federal taxes. Obviously, the fees are not collected on a per capita or line item basis at the polls.
Possibly, then, the costs of a “well regulated militia” should be borne by the People in a similar fashion, with products of non-militia 2A expression assessed [reasonable] direct fees (e.g. parade permits) to recover only enough to provide for administering the [reasonable] regulatory scheme.
July 19, 2010, 10:21 pmegd says:
The right to keep & bear arms is still a right, whether it’s enumerated in the 2nd amendment or not.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
You can say it arises from the emanations of the penumbra or something if it makes you feel better.
July 19, 2010, 10:23 pmDavid E. Young says:
During development of state ratifying convention proposals for a Federal bill of rights and subsequent Congressional development of the Bill of Rights amendments between 1787 and 1789, both First and Second Amendment related rights were normally presented with the strongest of protective language. Such restrictions either forbade any law being passed regarding the right, like the First Amendment restriction, or they indicated the government would have no power to infringe the right, like that of the Second Amendment. Both types of restrictive language were used for First and Second Amendment related rights during the period. The historical facts surrounding this period usage will help those today who are interested in understanding the Founders’ views and usage.
For example, the first proposal in a state ratifying convention using “no law shall be passed” style restrictive language was offered by the Pennsylvania minority to prevent disarming of the people. None of the minoity’s proposals were adopted.
The second such proposal, adopted by New Hampshire’s convention, indicated that “Congress shall never disarm any citizen . . .” Both of the above are examples of First Amendment style restrictive language relating to Second Amendment rights.
Samuel Adams’ bill of rights proposals in the Massachusetts Convention were the first to use “infringe” based restrictive language. It was not his Second Amendment related proposal that contained such a restriction, instead, it was protection for First Amendment related rights. Adams proposed that the Constitution never be “construed to authorize Congress to infringe the just liberty of the press, or the rights of Conscience”.
There are many other examples of Second Amendment restrictive language used during development of First Amendment related protections during the described period. Hopefully, those in the legal field will rely on the many available historical sources for determining the Founders’ views and usage.
My February 8, 2009 post entitled The Meaning of ‘Shall Not Be Infringed’ at On Second Opinion Blog presents a number of additional examples of First Amendment rights proposals using Second Amendment style restrictive language (with citations to historical sources).
July 19, 2010, 10:29 pmMark Eidel says:
This is good, but it says no more or less than “shall not be infringed”. Even additional explicit details would inevitably be corrupted by the courts. Just look at what’s been done to (or in spite of) “Congress shall make no law”.
Unlike the language of other amendments, it’s remarkable that the Second includes no qualifiers whatsoever. It’s simple: To infringe is to encroach upon in a way that violates law or the rights of another infringed. Consequences notwithstanding, any encroachment on the right to bear arms is a violation of the Second Amendment.
Legal Dictionary
Main Entry: in·fringe
July 19, 2010, 10:34 pmPronunciation: in-’frinj
Function: verb
Inflected Forms: in·fringed ; in·fring·ing
Etymology: Medieval Latin infringere , from Latin, to break, crush, from in- in + frangere to break
transitive verb : to encroach upon in a way that violates law or the rights of another infringed — U.S. Constitution amendment II>; especially : to violate a holder’s rights under (a copyright, patent, trademark, or trade name) intransitive verb : ENCROACH — in·fring·er noun
Merriam-Webster’s Dictionary of Law, © 1996 Merriam-Webster, Inc.
MCM says:
So if traditional militias aren’t necessary anymore, then the rights aren’t necessary anymore. Thanks for clarifying that.
July 19, 2010, 10:36 pmcboldt says:
– So if traditional militias aren’t necessary anymore, then the rights aren’t necessary anymore. –
July 19, 2010, 10:46 pmWe’re all part of the militia. It’s a quality akin to being part of the human race. If you aren’t armed, then you aren’t pulling your weight.
RKV says:
“The federal courts have, post-Heller, upheld all the machine gun restrictions now on the books. The cases have been decided in Circuits, and SCOTUS has denied cert” Care to back that up, or are you just winging it like usual?
July 19, 2010, 11:04 pmSteve2 says:
Indeed. Pacifism is the victory of barbarism: the willful inability to oppose and destroy evil.
Oh, and yeah, when I said “categorical”, I had “fish” in mind.
July 19, 2010, 11:08 pmJack Diederich says:
Eugene, as you know “shall not be infringed” is weak sauce compared to some state constitutions. “Shall not be questioned” [PA, KY] is more interesting…
Q: What does the right “to bear arms in defense of themselves and the state” mean?
A: What part of “shall not be questioned” don’t you understand?
and Constitutional hilarity ensues.
July 19, 2010, 11:09 pmdave h says:
This is really a difference between layman interpretation and lawerly interpretation. Yes, the courts have interpreted nearly all meaning out of phrases like “shall make no law” and “shall not be infringed” and “public use”. Just because they’ve done it in little incremental ways doesn’t make it any more sensible. I understand that a phrase like “cruel and unusual” needs some context, some interpretation. But there is a clear meaning to “shall not be infringed”. If the founders meant that it should be subject to reasonable regulation, well then they sure picked a crappy word for it.
July 19, 2010, 11:09 pmJeff S. says:
Since the courts often attempt to right past wrongs through affirmative action, let’s try following the reading of “shall not be infringed” for 80 years and see what happens. Conversely, any restriction should be charged as Treason against these United States. Penalty? Death. Do ya feel lucky?
July 19, 2010, 11:14 pmJeff S. says:
Under the torturous reading of the 2nd amendment, how comfortable should we be with the others? Free speech as long as you pay a tax of x per word… Freedom of assembly as long as you allows us to tell you where and when, and charge you a fee… I personally, would like a ban of lawyers as politicians. Clearly written bills should be the norm. Of course, lawyers like being highly paid translators but, thats not the governments stated purpose. If you cant write a bill in clear english, it’s a bad bill by definition.
July 19, 2010, 11:19 pmcboldt says:
– “The federal courts have, post-Heller, upheld all the machine gun restrictions now on the books. The cases have been decided in Circuits, and SCOTUS has denied cert” Care to back that up, or are you just winging it like usual? –
July 19, 2010, 11:27 pmSee the Hamblen case in the Sixth Circuit, decided 30 Dec 2009, cert. denied.
You’re Welcome.
cboldt says:
Hamblen v. US, 09-5025 (6th Cir., 2009)
July 19, 2010, 11:36 pmRKV says:
Courts is plural.
July 19, 2010, 11:38 pmD.T. says:
Well, what it meant from the time of the Bill of Rights was—from A Dictionary of the English Language, Samuel Johnson (1783)—:
to INFRINGE, v. a. [infringe, Latin.]
1. To violate; to break laws or contracts.
2. To destroy; to hinder.
Not much different than it means now.
D.T.
July 19, 2010, 11:50 pmcboldt says:
US v. Artez, 2008 U.S. App. LEXIS 18829,*;290 Fed. Appx. 203 (10th Cir.)
July 19, 2010, 11:51 pmThis case lacks the precedential force of Hamblen, but is useful for predictive purposes.
Praetorius says:
How about “Congress shall pass no law, nor the Supreme or lesser courts interpret, the Second Article of Amendment of the Constitution of the United States”?
July 19, 2010, 11:59 pmcboldt says:
– Courts is plural. –
July 20, 2010, 12:01 amNow it’s your turn. Can you cite early regulations, other than prohibitions on keep and bear by slaves, indentured servants and natives?
cboldt says:
Turn the recitation upside down. The government may not keep or bear any arm that it restricts from the people.
July 20, 2010, 12:05 amJay says:
“I see the language of the provisions as absolute.”
So, I do as well. And I’m comfortable saying that anything that does, in fact, infringe the right to keep and bear arms is absolutely barred. Just like I’m comfortable saying that the First Amendment absolutely prohibits laws that restrict the freedom of speech. But however clear and absolute you get, you still have to define the scope of the relevant provision.
For instance, even the biggest Second Amendment absolutist would say that prohibiting murders with firearms is perfectly fine — that’s not an “exception” to the Second Amendment. It’s just not what the Second Amendment is talking about. What does “arms” mean? We would probably all accept that it doesn’t mean any kind of weapon (like a tank), so we’re going to have to decide what constitutes “arms” and what doesn’t. And the right to keep and bear arms probably doesn’t mean the right to do whatever you want with whatever arms are (like carry them into court), just like the freedom of speech doesn’t allow you to do whatever you like so long as you do it through speech (like join a criminal conspiracy, or incite violence).
If we get jurisprudentially sloppy, we might call those examples “reasonable regulations of a non-absolute right,” (and to be sure, courts have often done that). But that strikes me as a poor way to look at the legal problem. The question is: what is the scope of the right? Being a rights absolutist (which I certainly am) doesn’t avoid that problem.
July 20, 2010, 12:10 amcboldt says:
US v. Fincher (8th Cir.) is another post-Heller machine gun case, with a short barrel shotgun thrown in for a bonus. See discussion and a link to the opinion at Post-Heller Federal Appellate Decision on the Second Amendment (Volokh Conspiracy)
July 20, 2010, 12:27 amAmong other things, this case stands for the proposition that a defendant and his legal counsel are forbidden from showing the Miller case to the jury.
cboldt says:
July 20, 2010, 12:29 amFiftycal says:
I wrote the phase the good Prof. is referencing. I would like to comment on some of his points.
“Is it an infringement of a right to bear arms to say that you should sell guns on your property (or on the property of someone who agrees to let you sell them), but that you can’t sell them on government property?”
In the case of a gun show on public property, are other things allowed to be sold? Is the property used for fairs, carnivals, car shows, revivals, dances,etc.? If so, are tractors, cars, boats, etc. sold there? How about cotton candy, beer, popcorn or other food? In California, NO GUN could be sold directly from a gun show. There is a mandatory waiting period. The sale could START there, but no merchandize would change hands. Is it then “reasonable” to prohibit the sale of otherwise legal merchandize while other types of commerce is acceptable? What is the clear purpose of this prohibition?
“How about to say that you can’t even possess them on government property?”
Does this include streets and sidewalks? Air space? How would a person obtain a gun and get it home? Is it “reasonable” to “allow” a person the fundamental right to own a gun but make it impossible to transport the gun home, even if it had to be airdropped via helicopter? What other restrictions on “public property” is allowed, like the example of the fairground above?
” What if you are free to possess many kinds of guns, but not certain other kinds of guns that are very similar to them? What if you have to pay a relatively small fee to get a license to have a gun (which the government must give you once you pay the fee), or to organize a demonstration, or to get married?”
And who determines the license/fee? Chicago wants $100 for 3 years for a “license” and $15 per gun. Now I have more than 10 guns. So, do I have “too many” guns? Well, if I have to pay the TAX on them, it might be more than I could afford. Could I sell some to pay the TAX? And what purpose does the TAX serve? “Registration”? Well cars have license plates. Yah, but I don’t want to walk around wearing 10 license plates. Mayor Daley sez this is so emergency personnel will “know” when they approach a house if the occupants are armed. Duh. A cop on the first day knows that such an approach is useless. Were you to trust that the house full of crack users couldn’t possibly have any guns because there are no guns registered to that address that most likely would be the last day on that job for you.
” But I mention the historical answer because it suggests that American law has long recognized that not all restrictions are infringements; and my sense is that it is consistent with much of the thinking of the Framing era, in which (for instance) many kinds of restrictions on speech were seen as permissible reasonable regulations.”
And the “poll tax” was a REASONABLE method of financing voter registration. And it was “only” $2. Of course, to citizens that didn’t have $2 is wasn’t very “reasonable”.
“Now this having been said, I’m happy to argue against restrictions that really are infringements; I discuss some in this article. But it’s not enough just to say “shall not be infringed,” especially when we’re in an area — such as government control over government property — where some degree of government restrictions have long been accepted in many areas.”
And things that have not been in “normal and accepted use” because they have been BANNED by government fiat could never be brought into the “normal” catagory under such a scheme.
40 states allow citizens to own full-auto machine guns, short-barrel rifle and shotguns and other “devices” with the proper “tax”, based on the National Firearms Act of 1934. 48 states allow concealed handgun licenses, with 40 of those states mandating a “shall issue” license if the persons are not in a “prohibited” catagory.
And I can’t understand, now that the Second Amendment has been incorporated via the 14th, how California can BAN semi-auto guns based on apperance, NYC can BAN most people from getting a concealed handgun license because they don’t know the “right” bureaucrat and how any of these and the other UNREASONABLE RESTRICTIONS, AKA Infringements, can stand.
Thank you.
July 20, 2010, 12:34 amcboldt says:
– 40 states allow citizens to own full-auto machine guns, short-barrel rifle and shotguns and other “devices” with the proper “tax”, based on the National Firearms Act of 1934. –
Until Congress writes a new law.
Taxed today (number limited to those produced before 1986), banned tomorrow. So says the Court, and it’s all constitutional!
July 20, 2010, 12:55 amKirk Parker says:
cboldt,
“Most every” is quite an exaggeration. Nearly half (by my count) are similar to my own state of WA in having a few restrictions as to place, and restricting concealed carry w/o a permit, but say little or (in our case) absolutely nothing about open carry, which is simply legal (if in some places unusual) by default.
July 20, 2010, 1:29 amcboldt says:
Closing my usual “winging it” loop …
July 20, 2010, 1:38 amFincher – Cert. Denied February 23, 2009
Hamblen – Cert. Denied May 3, 2010
cboldt says:
– Nearly half [of the states] say little or (in our case) absolutely nothing about open carry, which is simply legal (if in some places unusual) by default. –
July 20, 2010, 1:49 amI probably overstated the case, if one counts “state by state.” Some locations certainly have effective bans on “to bear.” Isn’t there some action in Wisconsin in that regard? California, NY, Massachusetts are hostile to open carry.
On the other hand, I know Alaska, Vermont, Wyoming, probably a good number of western states are gun-friendly.
Open carry would raise an eyebrow around these parts. I don’t know how much legal hassle would result.
Strict says:
The Second Amendment is tricky. It’s weirdly worded – I don’t know if it’s even a grammatically correct sentence.
It has the word “regulate.” It has the word “militia.” It has the phrase “bear arms,” which some etymologists say means “serve as a soldier” or “wage war.”
It doesn’t have the word “gun,” “firearm,” “individual,” “possess,” “own,” “defense” or “self-defense.”
It just says shall not be infringed. It doesn’t say infringed by whom. Federal government? State governments? Local governments? Militias? Private parties?
A lot of this stuff has been sorted out over the years, often confusingly. What’s clear is that the drafters did a damn poor job with this one.
July 20, 2010, 2:14 amDuffy Pratt says:
Perhaps this can begin to serve as your explanation. You seem to take a literalist approach: the constitution protects the right to “keep” and to “bear” arms. Fine. But notice that the constitution doesn’t say anything about a right to “sell” or to “purchase” or even to “manufacture” arms. So, as a pure literalist, I can say that you can keep and bear arms all you want, but that doesn’t mean that I can’t stop you from guying them, giving them to others, making them, etc… Of course, you will then have to say that those other things are necessarily implied from the literal language, and now we are into that lawyerly realm that goes somewhere beyond the plain, common meaning.
July 20, 2010, 2:58 amGil says:
Why say the 1st Amendment protects speech and the press? Speech and the press are restricted in a number of ways: libel, slander, assault, etc., which is to say if you intend to threaten or scam others then you can find yourself in legal trouble. By the same token, why can’t the government have laws in regards to weapons?
Then again, reading the 2nd Amendment it appears to say that government won’t interfere with the RKBA if you are part of the State’s militia. If you’re not then they can make laws. Admittedly it up to the State to determine what is a “well-regulated militia” and if New Hampshire wants to define a “well-regulated militia” as anyone who can afford a firearm then so be it.
After all, if the RKBA is unlimited, then what is the “well-regulated militia” part doing there at all? From the documents that many provide for the background of the 2nd Amendment it appears the writers were primarily concerned about the militia forces and how they can be protected rather than relying solely on a standing army. Such early writers probably didn’t think about the individual’s right because guns and knives were everyday tools to them. It would be the same as proposing a Constitutional amendment nowadays to own and drive a car – a car is so necessary nowadays that doesn’t worth it.
July 20, 2010, 3:02 amKirk Parker says:
cboldt,
Not quite.
Wisconsin, like a majority of states, has a right-to-arms provision in its state constitution. Unlike most of these, Wisconsin’s was added fairly recently. The WI State Supreme Court has ruled that, given the new constitutional provision, some means must exist for citizens to exercise this right, and since concealed carry is prohibited by statute then by necessity open carry must be legal.
In some places, this causes no problems; in Milwaukee the police chief has taken a strongly anti-carry stance, and I’m not alone in waiting for the right case to come along and someone to sue the heck out of him, his department, and the city.
(Sorry to not include references here; it’s after midnight and I’m tired and lazy…)
July 20, 2010, 3:26 ammatt d says:
I’ve been idly wondering if the Montana machine gun law that came up last year (?) took the wrong approach. Perhaps the state of Montana should have sued the federal government, on the grounds that the federal ban on manufacturing new machine guns for civilian use unconstitutionally limited its state militia powers. How can Montana possibly prepare itself against attack by the slavering Canadian horde if its civilian militia is unable to arm itself with effective weapons?
Alternately, could Montana pass a militia organization law providing a required equipment list, including an M16A4 rifle, and then sue because the federal government was interfering with a measure necessary to the security of a free state?
I guess congress could pass a law defining the “[training] discipline prescribed by Congress”, saying there ain’t no machine guns in it. Hmm.
-m@
July 20, 2010, 3:29 amAnthony says:
Sure, unless it falls afoul of discrimination laws, which a blanket prohibition against gun shows is unlikely to do. The right to do something does not imply the right to have government assistance at doing something, and permitting you to use government land is a form of assistance.
July 20, 2010, 3:44 amjack osborne says:
CALIFORNIA CONSTITUTION
ARTICLE 5 EXECUTIVE
SEC. 7. The Governor is commander in chief of a militia that shall
be provided by statute. The Governor may call it forth to execute the
law.
Interesting that the militia is mandatory by statute, in California, at least!
122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State
128. The unorganized militia may be called for active duty in case
of war, rebellion, insurrection, invasion, tumult, riot, breach of
the peace, public calamity or catastrophe, or other emergency, or
imminent danger thereof, or may be called forth for service under the
Constitution and laws of the United States.
looks like the militia is alive and well in California
July 20, 2010, 3:52 amOwen H. says:
So we are back to the argument that the 2nd gives individuals the unrestricted right to possess nuclear weapons.
July 20, 2010, 6:54 amJames Gibson says:
Article One Section 8 Clause 16 gives congress the authority to regulate the arms of the militia. This was actually done in the 1792 militia act in the form of a caliber regulation on top of the requirement of ownership. Today a State could adopt any firearm It so choose as the arm of the unorganized militia, but the Guard component must use the arm of the Army under Federal statutes. The years in which the guard used old Garand rifles while the Army carried M-16s is long past.
As for State defense forces (JACK OSBORNE should look up the Federal statute on them and the California Statutes on the State Military Reserve) they cannot be armed in the same manner as the Standing Army by Federal laws and regulations out of the National Guard. THey can only use arms determined to be substandard or obsolete to insure they do not look like Federal or NG troops. Under the California Assault weapon Act they also cannot use any listed weapon since all listed guns have been previously defined by the State as not the arms of the militia.
That leaves the Unorganized Militia, which are effectively bound by the rules governing the SMR here in California. We cannot use M-4s or M-16s, or M-1As because the M-14 is back in service with the Marines, and they cannot be issued any arm on the proscribed list. Thus you might as well state that the common militia in California is limited by State regulations to the old Garand or the M-1 carbine in the name of public safety with the State taking full responsibility for the potential problems if the force is actually activated (which the legislature states will never happen). The only override to this is if the Unorganized is called out by congress under Article One, Section 8, clause 15. The NG regulations will still be in place barring the M-16 and M-4, but the State regulations will be overridden.
July 20, 2010, 6:58 amcboldt says:
– in Milwaukee the police chief has taken a strongly anti-carry stance –
July 20, 2010, 8:10 amThat’s the situation I was vaguely aware of, that caused me to think of WI as anti-open-carry.
OpenCarry.org has a map: http://www.opencarry.org/maps.html
Sarcastro says:
SCOTUS would be out of control if they weren’t afraid of the People’s Cap in their berobed behinds!
July 20, 2010, 8:16 amcboldt says:
– if you intend to threaten or scam others then you can find yourself in legal trouble. By the same token, why can’t the government have laws in regards to weapons? –
July 20, 2010, 8:18 amIn the realm of speech, one must take the action of speaking or printing in order to threaten or scam. The intention is tested by action, not by the possession of a voice or printing press, access to the internet, etc. The only laws that regulate printing presses are in the nature of zoning and public health laws (e.g., environmental regulation relating to spillage of ink; noise limitations)
The government has many laws on the USE of firearms, including murder and attempted murder at the top, and forbidding discharge of certain types of weapons in certain zones. Shotgun only for hunting, no discharge in the city, etc. The law excuses breaking those laws for self-defense, and that excuse is tested on a case-by-case basis.
cboldt says:
– So we are back to the argument that the 2nd gives individuals the unrestricted right to possess nuclear weapons. –
July 20, 2010, 8:24 amMy suggestion to turn the recitation upside down was a response to the challenge to formulate a categorical rule that results in minimum government encroachment on an individual right. It seems that reformulation works!
cboldt says:
– SCOTUS would be out of control if they weren’t afraid of the People’s Cap in their berobed behinds! –
July 20, 2010, 8:28 amSCOTUS is out of control, in part because they (reasonably, I add) are not afraid of the people.
It is able to issue completely irrational/illogical rulings, and have them enforced by the full power of the government.
Displaced Midwesterner says:
Personally, I look forward to the first joint lawsuit by a pro-gun group and an anti-war group, demanding that the government choose: either let everyone have nukes or give the military only small arms.
July 20, 2010, 8:55 amruufffles says:
That’s not true at all. SCOTUS has no enforcement power (See Jackson, Andrew). Yet both democratic and republican administrations (as well as state governments) voluntarily abide by their decisions.
July 20, 2010, 9:08 amSeaDrive says:
Part of the difficulty with 2nd Amendment is that the last clause is incomplete. It really should have a “by” clause. Shall not be infringed by 1) Congress, 2) the Federal Government, 3) the States, 4) any level of government, 5) parents, 6) well meaning do-gooders, or…?. I believe this matter has just been in the courts recently.
July 20, 2010, 9:37 amDavid E. Young says:
Because, in the case of the Second Amendment’s history and meaning, the existing ideological divide is founded on errors of fact that are accepted as fact by sloppy historical researchers.
There were an astonishing number of historical errors presented to the Supreme Court in the professional historians’ Heller amicus supporting Washington DC. Justice Stephens’ dissent is founded on some of those errors.
Some of the same historians provided additional historical errors to the Court in their McDonald amicus supporting Chicago. Justice Breyer’s dissent is founded on some of those errors.
Extensive documentation of these professional historians’ errors is located in three series of articles examining three of the historians’ briefs to the Supreme Court. These series start with the first post of Root Causes of Never-Ending Second Amendment Dispute, Part 1.
July 20, 2010, 9:40 amcboldt says:
– Because, in the case of the Second Amendment’s history and meaning, the existing ideological divide is founded on errors of fact that are accepted as fact by sloppy historical researchers. –
July 20, 2010, 10:25 amI’d put that in the “how” category. “Why” they do it, and the errors are deliberate, no accident, is agenda-driven.
The historians are not the only people who are afraid of a powerful public. The Courts likewise assert obvious error. Clearly erroneous read of Cruickshank, Presser and Miller, for example, are a cornerstone of modern 2nd amendment jurisprudence.
Congress’s disarmament inclination appears directly in the form of legislation prohibiting and restricting the public from common objects of force. The stated reason is “for your own self protection,” but the real reason is to make sure Congress is never subjected to being under the people’s thumb.
cboldt says:
Me: [SCOTUS] is able to issue completely irrational/illogical rulings, and have them enforced by the full power of the government.
July 20, 2010, 10:29 amRuuffles: That’s not true at all.
Oh yes it is. 18 USC 922 is fully enforced, even the parts that have been found constitutional by clearly erroneous legal opinions. Defendants lose, and go to jail or are killed.
Carl Donath says:
The point of the absence of a “by” clause is that the right shall not be infringed by ANYBODY. The presence of a “by” clause implies that outside of the enumerated groups forbidden to infringe, others may or do have the right/power TO infringe. It is a _right_, which NOBODY is empowered to limit short of resolving clashing with another’s rights.
The Founding Fathers wrote the Constitution as a matter of plain English, not as a matter of covering every rhetorical contortion conceivable centuries hence by those he11-bent on denying citizens the plain rights described.
July 20, 2010, 10:31 amFederal Farmer says:
Dan, those restrictions on speech are on how you use it. We already have reasonable restrictions on how you use arms…can’t murder someone, can’t threaten them with bodily injury or death, etc. Those are restrictions on use.
Many of today’s gun control laws are instead restrictions on possession. We don’t take away someone’s right to speak in order to prevent them yelling ‘Fire’ in a crowded theater, rather we punish them for doing it. After all, there might be a fire.
Likewise, we should punish those that shoot indiscriminately in a crowded theater. After all, there might be a self-defense need.
July 20, 2010, 10:35 amcboldt says:
– [The 2nd amendment] really should have a “by” clause. Shall not be infringed by 1) Congress, 2) the Federal Government, 3) the States … –
July 20, 2010, 10:39 amThe limitation can be taken from context, and as originally intended, the 2nd limits the federal government only.
Federal Courts have held that the right to keep and bear arms is inherent in personhood, and would exist even if the constitution did not (which also means even if the 2nd amendment did not exist). The Cruickshank/Presser cases expressly state the view of the Supreme Court circa 1890 or so. States may not infringe the people right to keep and bear arms once the federal government is created, because that would have the sates depriving the federal government of an armed populace.
Presser v. Illinois, 116 U.S. 252 (1886)
Federal Farmer says:
Yay, straw man! We should have a Godwin’s law regarding how fast this pops up.
July 20, 2010, 10:40 amCarl Donath says:
Hamblen fails to note the footnote in Heller which opined that to forbid civilian ownership of M16s would be to sever the prefatory clause of the 2nd Amendment, which would of course be absurd. Between that, the absurd recursive logic of “it’s banned because its not common because it’s banned”, and the ongoing legality of MGs (albeit old ones), the likes of Gura should have no trouble overturning 922(o).
July 20, 2010, 10:47 amcboldt says:
– We should have a Godwin’s law regarding how fast this pops up. –
July 20, 2010, 10:48 amSeconded. For the most part, I react that way. Immediate and silent write-off. But in this thread, there was a good reason for the remark. There was a challenge to write a clause that literally put the people at parity with the government; and “this gives the right to own nukes” is an accurate outcome for a clause that enforces force parity.
Gil says:
Why is owning a nuke a strawman argument? If you use the Libertarian interpretation then a person has every right to own any weapon they can afford and safely store, period. From slight shot and butter knife to napalm and thermonuclear warhead, it doesn’t matter. If you use the militia argument then it’s up to the States what constitutes the ‘regular’ milita and the ‘unregulated’ militia.
BTW jack osborne: funny you use the Article for the ‘unregulated militia’ as if to suggest the people have a duty to be armed especially as in the context of serving the Federal Government when they think the situations deserve you and your weapons being comandeered to suppress others. Would it be ironic if you were called up to bring yourself and your weapons to Waco and suppress the insurrectionists there in 1993.
July 20, 2010, 10:56 amcboldt says:
– Hamblen fails to note the footnote in Heller which opined that to forbid civilian ownership of M16s would be to sever the prefatory clause of the 2nd Amendment, which would of course be absurd. –
Severing the prefatory clause was argued to the 6th Circuit, but not addressed in the opinion. The opinion completely blows off Hamblen’s substantive argument, and substitutes for reasoning, [my paraphrase in quotes] “the Supreme Court disagrees with your read of Miller.” Hamblen knew that of course, that SCOTUS in Heller, and he, had irreconcilably different reads of Miller, starting with disagreement over “Miller was convicted.”
The rank dishonesty really is breathtaking. And then, the dissent is even worse! Sacre Bleu!
July 20, 2010, 10:56 amcboldt says:
– Would it be ironic if you were called up to bring yourself and your weapons to Waco and suppress the insurrectionists there in 1993. –
July 20, 2010, 11:01 amThey were not insurrectionists. They were being prosecuted for failure to abide by the firearms tax, not for insurrection. The government initiated force in order to obtain compliance with a law that a Federal Court held unconstitutional back in 1937 or so.
cboldt says:
– Why is owning a nuke a strawman argument? –
July 20, 2010, 11:03 amI’m gonna call “Federal Farmer’s Law” on that one.
Carl Donath says:
The problem with the “nukes” strawman is reflective contemplation disappears when it is raised.
If we consider that one may be denied any arms if their actions therewith place others in undue danger, and that the range of effect of nukes is measured in cubic miles thereby placing many in undue danger (short of extreme safety measures available to few outside governments), we can conclude the mere act of possession places many in undue danger and thus the act of possessing a nuke may be prohibited. Such reasoning does not conflict with the principle of RKBA: you can have what arms you like, so long as what you do with it does not violate the comparable rights of others; ergo, if you do violate the rights of others, those others have the right to disarm you … and in the case of nukes, the inherent inability to store (much less use) one safely/responsibly gives others cause to prevent you having one.
It’s not so much that owning a nuke is prohibited, it’s that there is nothing you can do with one which doesn’t give others cause to disarm you of it with extreme prejudice – ergo, no RKBA conflict.
July 20, 2010, 11:04 amCarl Donath says:
The base problem with Hamblen is that it’s the consequence of gross criminal activity. Heller was heard, and won, because the plaintiff was wholly upstanding and cooperative. Mr. Habmblen isn’t, committing one of what the federal government considers the most egregious crimes – a third rail which may be only challenged by the purest of plaintiffs.
July 20, 2010, 11:11 ambtr says:
The Second Ammendment was obviously intended to protect the ownership of military rifles, as the militia clause makes clear. This means that automatic rifles are protected.
If these rifles are considered more dangerous than ordinary firearms, well, we have the NFA that provides a much greater level of control of them than most other firearms. The overwhelming rarity of murders committed with legally owned MGs since 1934 demonstrates that this is effective. I have only found documentation of two murders committed by legally owned NFA guns since 1934 (and one of these was by a policeman).
I would be happy to keep the provisions of the NFA for protection against criminal misuse of NFA firearms, if the MG registery was re-opened.
Right now, due to the 1986 ban on manufacture, only a relatively well-off person can easily afford a modern military rifle, as a legal M-16 goes for about $10,000-$12,000. That’s clearly unconstitutional.
July 20, 2010, 11:13 amcboldt says:
– The base problem with Hamblen is that it’s the consequence of gross criminal activity. –
July 20, 2010, 11:20 amOh? What was the crime, other than possession of a contraband weapon / parts?
Arthur Kirkland says:
And thus begins the segment resembling the argument in which some Christians argue that you can’t take Mormons seriously because of ridiculous beliefs.
July 20, 2010, 11:21 amcboldt says:
– That’s clearly unconstitutional. –
July 20, 2010, 11:22 amUsing the complete logic of the Federal Courts, “You lose. Heller says so.”
fwb says:
“What if you have to pay a relatively small fee to get a license to have a gun (which the government must give you once you pay the fee), or to organize a demonstration, or to get married?”
Does ANYONE see a shall not be infringed statement ANY WHERE in the Constitution concerning getting married? There is the “right to assemble” BUT that right was set against the feds only and not the state as per the text AND as per the discussion in Congress.
These kinds of statements and ideas are EXACTLY the problem in our country. Pulling “stuff” out one’s arse that is nonexistent in the original document. And it matters not what the Courts decide. THEY ARE NOT THE BOSS. THE COURTS DO NOT LEGITIMATELY HAVE THE FINAL SAY.
A little Blackstone (once more)
“For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.”
Sir William Blackstone, Blackstone’s Commentaries on the Laws of England, Book I, Chp3, pg.205/6
If We the People disagree with even the supreme court, a simple majority of us cancels their decisions.
Of course the Framers were ABSOLUTE in their meaning. Governments have no authority to infringe, that is to do ANYTHING – no taxes, no restrictions – that cuts into the right to keep and bear Arms. Governments can punish one for acts such as murder, etc that involve a gun.
I am always in amazement that in 99.99999% of the cases latter law is held to override prior law, then the Bill of Rights pops up and the courts change their tune. In my opinion, Liars, damn liars, and judges!
Learn this and you will have advanced centuries.
July 20, 2010, 11:22 amthirdeblue says:
Thought puzzle. Could the government ban any WEAPON that provided X amount of force per unit area Y?
July 20, 2010, 11:29 amCarl Donath says:
The crime was mere possession of a particular mechanical device – which the federal government consider far more egregious than murder of most any citizen, and on par with the heinous crime of mail fraud. They’ll drop a slam-dunk case of voter intimidation, but send you upriver for a decade for an unregistered auto-sear (a tiny metal component).
For something they (not I!) consider so serious, it will take only the purest of heart to soften theirs.
July 20, 2010, 11:32 amcboldt says:
– For something they (not I!) consider so serious, it will take only the purest of heart to soften theirs. –
July 20, 2010, 11:36 amHeheheh. Well said. But I don’t share your thought that 922(o) can be overturned “politely.” Therefore, it stands until the government decides to not enforce it.
cboldt says:
– Could the government ban any WEAPON that provided X amount of force per unit area Y? –
July 20, 2010, 11:40 amAre you asking from a legal point, or engineering point?
From a legal point, it already does account for destructive effect, but not in the engineering terms you offered.
SeaDrive says:
As you illustrate, in the absence of the “by” clause, people adopt the one that appeals to them the most. My point is only that a couple of extra words here would have saved a couple centuries of argument.
July 20, 2010, 11:43 amcboldt says:
– My point is only that a couple of extra words here would have saved a couple centuries of argument. –
July 20, 2010, 11:48 amLess than a couple centuries. The RKBA was respected by the government until the early 1900′s, and the heavy lifting against it, on a federal level, started in the 30′s.
The government will not tolerate the possibility of being under the thumb of the people. It will jail and kill as many as it takes (and it won’t take many) to maintain force superiority.
Strict says:
Fwb: “Pulling “stuff” out one’s arse that is nonexistent in the original document.”
You have to learn to accept that the document was not perfect, nor perfectly clear on many things.
Your “IT’S NOT IN THE TEXT” argument doesn’t resolve matters. The word “self-defense” is not in the text, so you have no constitutional right to self-defense. Right? NOT IN THE TEXT.
Was the Heller Court was just pulling “stuff” out of its arse when it said “The inherent right of self-defense has been central to the Second Amendment right”? If it’s so central, why wasn’t it in the text?!
July 20, 2010, 11:49 amJK says:
Finally a post I can agree with. All this nonsense about how obvious the amendment is an only some slimy lawyer wouldn’t accept this “obvious” meaning sounds like something out of the film Idiocracy .
July 20, 2010, 11:52 amctdonath says:
Ban outright? No.
Prohibit an action, including mere possession of that weapon, which places others at undue risk? Yes.
There is a difference.
Running rough historical numbers…
July 20, 2010, 11:54 amThere is a one in one hundred thousand chance that a firearm fired (production testing aside) will kill someone.
There is a one hundred thousand in one chance that a nuke fired (production testing aside) will kill someone.
When the odds of harming an innocent by firing a weapon exceed one, we can say that mere possession is too dangerous an activity.
Strict says:
Carl: “The point of the absence of a “by” clause is that the right shall not be infringed by ANYBODY.”
Including private parties? And what does “infringe” mean? If I say “you can’t bring your gun into my house” or “you can only come onto my property if you leave your gun behind,” is that an infringement?
Including police officers who just conducted a lawful arrest? They can’t take the suspect’s gun away?
It’s not as absolute as you think. You are inferring the “anybody.” That might be correct, but hey, it’s not in the text. The text doesn’t say “shall not be infringed by anybody,” [and it could have]. Someone else could infer it to be simply “by the federal government.”
July 20, 2010, 11:55 amPraetorius says:
No doubt that any individual who could afford one and wants one already had one. They’re amazingly expensive to create and maintain. So I’m not too worried about such a situation.
July 20, 2010, 12:30 pmmack says:
What I’ve learned from this thread:
1. David Young has done more original research and documentation on the history of the RKBA and the Second Amendment than anyone else that I am aware of.
2. Individuals in the face of overwhelming evidence to the contrary still attempt to argue that the meaning of, “A Well regulated Militia being necessary to the security of a free State”, places restrictive language on, “the Right of the people to Keep and Bear arms, shall not be infringed”, such that it renders it a nullity. Guess the founders should have known people would misconstrue the definitions of militia and regulated and have written instead – A citizenry well trained in the use of arms and capable of bearing them being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
3. Don’t argue case law with cboldt
4. The courts and government in general are hostile to even a limited recognition of the RKBA.
5. Shall not be infringed – though clear to the founding fathers – is amazingly difficult to define or understand for modern magistrates or many lawyers. Though somehow David Young is able to find historical documentation indicating rather clearly what it meant when it was written.
6. Restrictions on the first amendment primarily do not involve prior restraint – but prior restraint involving the second amendment is somehow comparable to non-prior restraint restrictions on the first amendment, at least for some posters.
7. Most people, who advocate significant restrictions on the RKBA or abolishment of the legal right, mostly engage in projection.
8. Individuals in positions of authority like to maintain authority and don’t generally like the RKBA so if they feel forced to acknowledge it, it is in a very limited way.
July 20, 2010, 12:33 pmPraetorius says:
The Constitution applies to the government (originally the Federal government, thanks to McDonald the 2A applies to the State governments, as most all of the rest of the BoR does). So your concern about your property rights is specious.
July 20, 2010, 12:37 pmPraetorius says:
Great summary!
July 20, 2010, 12:39 pmArthur Kirkland says:
What I learned from this thread: A number of outspoken people are going to be shocked and disappointed as the dimensions of the right recently announced in Heller are identified.
By the way, Elena Kagan sailed through committee today. The overdue erosion of Republican domination of the Supreme Court continues.
July 20, 2010, 12:50 pmStrict says:
“The Constitution applies to the government (originally the Federal government, thanks to McDonald the 2A applies to the State governments, as most all of the rest of the BoR does). So your concern about your property rights is specious.”
Um, what are you talking about?
Carl says the Second Amendment applies to everybody – “shall not be infringed” applies to everybody, not just governments.
Many people for a long time [majority of American history] said that the Second Amendment applies only to the federal government.
The Supreme Court in 2010, for the first time in American history, said that the Second Amendment applies not only to the federal government but also to the States.
My point is that the text of the Amendment itself is not clear on this issue. Carl said it was indeed clear, and that it applies to everybody. I countered with a “really, it applies to private parties?” I didn’t express a real concern that the Second Amendment will be applied against private parties, I just wanted Carl to think through the implications of what he said.
July 20, 2010, 12:51 pmMichael Ejercito says:
Let us look into Supreme Court precedent.
The right to keep and bear arms was recognized as a right in 1856. In Dred Scott v. Sandford:
Note that Dred Scott is a pre-14th Amendment case, meaning that in 1856
the Second Amendment (and the other protections in this section) only applied to U.S. territories and the District of Columbia.
That would refer to the regulation of the conduct of the members of the militia, for example, state penal codes.
The First Amendment does not protect perjury.
It is unlikely judges would rule that the Second Amendment protects a right to carry an open container of sulfuric acid for use as a weapon .
The courts have consistently held that the protections of the Bill of Rights only restrain government action.
July 20, 2010, 12:57 pmStrict says:
“The courts and government in general are hostile to even a limited recognition of the RKBA.”
I completely disagree. Every state government allows some form of gun possession, and Heller [2008] and McDonald [2010] are arguably the two most RKBA-friendly court decisions in the history of American court decisions. There is approximately a 1:1 person-to-gun ratio in this country [300 million guns]. US arms sails abroad are expected to be valued at $50 billion in 2011.
Governments and courts in America are not hostile to RKBA and certainly not hostile “to even a limited recognition of RKBA.” We are a gun friendly society.
July 20, 2010, 12:58 pmcboldt says:
– 3. Don’t argue case law with cboldt –
July 20, 2010, 1:07 pmNot good advice. Many of my contributions are from memory (very fallible), and I’ve been known to (and shown to) make all manner of error.
– A number of outspoken people are going to be shocked and disappointed as the dimensions of the right recently announced in Heller are identified. –
And some will be disappointed, but not shocked or surprised. I’ve been tamping down expectations since the day Heller was handed down. SCOTUS craps all over the law as a principled human activity, and gun-rights people go “Hooray!”
Nuts.
cboldt says:
– Heller [2008] and McDonald [2010] are arguably the two most RKBA-friendly court decisions in the history of American court decisions. –
July 20, 2010, 1:14 pmThe Miller case held that it is unconstitutional in light of the 2nd amendment to tax the transfer of a weapon that “has some reasonable relationship to the preservation or efficiency of a well regulated militia, [or] is any part of the ordinary military equipment or that its use could contribute to the common defense.”
The Heller decision gutted that, and replaced it with a rule that a ban that results in absence of in common use for lawful purposes is a constitutional ban.
The Presser case asserts that “the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms.”
The McDonald decision will be read as though if the 2nd amendment is gone, the feds can ban all firearms. That is, the RKBA depends on the 2nd amendment for vitality.
ctdonath says:
Strict:
You’re confusing RKBA with trespassing. There’s a difference.
And if the Founding Fathers had addressed the issues in as much clarifying detail as you disingenuously demand, the Constitution would be the size of the Encyclopedia Britannica and nobody would know what it said because it would be too complex and full of loopholes. Word games aside, it is clear for most cases where those who don’t like it say it’s not.
July 20, 2010, 1:17 pmFederal Farmer says:
Let’s hope they aren’t too shocked…
July 20, 2010, 1:33 pmL says:
Sorry, that’s not convincing. If my neighbor owns a gun, there’s a chance someone could go in his house, take his gun, and start shooting, and then I or my family could get hurt. I’m not arguing that this danger justifies gun control measures, and I’m not arguing that this danger is as great as the danger of a nuke going off, but the point is you can’t say my neighbor owning a nuke violates my rights because it creates a danger to me, unless you want to say the same about guns. Which is why you used the word “undue,” of course. The danger to me from my neighbor’s nuke is “undue,” while the danger to me from my neighbor’s gun (assuming at least he’s going to be law-abiding) is small enough to be, I guess, “due.” So the 2nd amendment then becomes subject to balancing tests, which to me seems to take the wind out of the sails of the “SHALL NOT BE INFRINGED” absolutist argument.
The real argument appears to be that the 2nd amendment is absolute (Just look at the language! “SHALL NOT BE INFRINGED”) in those areas where people disagree about its scope, and not absolute in those areas where we can all agree it’s not absolute, e.g., nukes. That’s inconsistent, and seems unprincipled.
There are other ways out of it, of course. If the right to keep and bear arms is ancillary to the right of self-defense, than a nuke, which is useless for self-defense, is not protected by the right to keep and bear arms. That’s okay. And I’m sure there are other principled ways to make the argument as well. What’s not okay is to argue with the one hand that the 2nd amendment is absolute, and with the other that a ban on private nuke ownership doesn’t violate the 2nd amendment because it passes some balancing test with respect to undue risk to other people.
And it doesn’t count as a strawman either, because the whole point of the argument is not that pro-RKBA people think you should be allowed to have nukes, but just the opposite – some pro-RKBA people think the 2nd amendment allows no restrictions… except for the ones they think it allows. Well, if we’re all drawing a line somewhere, then the constitutional issue should be sidelined, and pro-gun and anti-gun factions can battle it out in the political arena, it seems.
July 20, 2010, 1:37 pmcboldt says:
– Well, if we’re all drawing a line somewhere, then the constitutional issue should be sidelined, and pro-gun and anti-gun factions can battle it out in the political arena, it seems. –
July 20, 2010, 1:52 pmI think the “nukes” argument is a strawman because the postulate is practically impossible. I agree with the commentator that said somebody, or some collection of people, will kill you if you persist in trying to build or obtain a nuke.
Let’s take the modest step of restoring the right to keep and bear full automatic “conventional” weapons.
I’d also remove the infirmity that attaches to ex-felons. When it is imperative to control a person’s actions, use force, not threats of force (e.g., “the law”).
mack says:
Many in the RKBA were joyful that the RKBA was finally legally acknowledged as a right that applied to the federal and state governments – a right that previously could not practically be appealed to in any court case as an individual right or that could overturn any federal or state or local law. Two laws were overturned based on that individual right.
Skoein brought most people back to earth if they were prone to expect a 180 degree turn in the treatment of the RKBA. How much the government is willing to honestly acknowledge that right will be the subject of politics and continuing lawsuits.
This is just part of a larger fight that has been going on for centuries and that will continue for centuries to come.
Here are a few of the pending cases: taken from this thread and post on the firing line – http://thefiringline.com/forums/showthread.php?t=416973
Nordyke v. King: Alameda County gun show ban. This case has been sent back to the original circuit panel. Supplemental briefing called for.
Hodgkins v. Holder: Challenge to Federal residency requirements to acquire firearms in DC Circuit, March 2009.
Heller v. District of Columbia: D.C “Assualt” weapons and Mag Limits. Appealed to the D.C. Circuit. March 2009.
Pena v Cid: Challenge to CA Roster of Handguns, April 2009.
Sykes v. McGinness: Licensed Carry in Yolo and Sacramento Counties (CA), May 2009.
Jackson v San Francisco: Challenges San Francisco Gun storage, May 2009.
Palmer v. District of Columbia: Licensed Carry in District of Columbia, August 2009.
Peruta v. County of San Diego: Licensed Carry in San Diego County, October 2009.
Peterson v. LaCabe: Licensed Carry in The City and County of Denver (but will affect all of CO), January 2010.
Bateman v. Perdue: Challenge to NC regulations that prohibit carry and sales of firearms during declared emergencies.
State Ammunition v. Lindley: Challenge of AB 962, Handgun Ammunition Regulations (CA), June 2010.*
Kachalsky v. Cacase: Challenges “Good Cause” in New York State.
Also – Heller II and the cases against the new Chicago gun laws.
I imagine one after another they will come up here for debate.
Personally – I think that the force – political and cultural of the RKBA community has essentially directly or indirectly lead to whatever freedoms or free exercise of the RKBA that we now have. The growth of the CCW laws and movement and now the open carry movement and the idea of the right to self defense – have expanded the base of individuals committed to the RKBA – particularly making some inroads amongst a minority of urban dwellers, women, and political progressives.
What the future will hold, who knows – I imagine both sides of the issue will be disappointed with many future court cases and political/legislative dealings.
July 20, 2010, 2:05 pmMichael Ejercito says:
Anything can be used as a weapon, even an open container of sulfuric acid .
Do open containers of sulfuric acid count as arms under the meaning of the Second Amendment?
July 20, 2010, 2:05 pmarbitrary aardvark says:
In Heller, Scalia went into great detail about what arms are and what bearing is, but didn’t discuss at all what “infringe” means. I’m not aware of any case law explicitly discussing what infringe means as a legal term of art, or as a common word as it would have been understood by the drafters.
July 20, 2010, 2:07 pmToday, most courts are still in a pre-Heller mode of finding the second amendment embarrassing, and preferring to construe it to not mean much. But this could change over time. In western states with elected state supreme court judges, a case that argued a state gun law “infringed” the second amendment could find a receptive audience. Such decisions could be insulated from SCOTUS review by also mentioning the state constitution as adequate independent grounds. These decisions would be a minority rule at first, as Emerson was, but if logically sound and supported by public opinion, might catch on. It may take a wave of elections replacing anti-second amendment judges with pro-2A judges to get this to happen. I describe this as something that might happen; I do not know whether or not it will. But I don’t see the controversy over what infringed means as settled; it’ll play out in the future.
Michael Ejercito says:
There is a common sense definition. Infringe means taking an action that imposes adverse consequences on an ability to perform an act.
Bans on perjury are infringements on the First Amendment’s freedom of speech clause, albeit infringements that will most likely pass strict scrutiny, if they had not done so already.
July 20, 2010, 2:17 pmPraetorius says:
Troll much?
McDonald incorporated (correctly) the 2nd Amendment to all governments, not just the federal…just as the 1st, 4th, 5th, 6th, 7th and 8th amendments limit state and local governments….
As an individual I have no legal ability to infringe your right to a firearm. I do have the right to infringe your ability (not right) to enter my property (with or without firearms). As the 1st Amendment doesn’t limit me from keeping you from your religious preference, or petitioning government for redress of grievances: I have no ability to affect that, one way or another.
July 20, 2010, 2:18 pmcboldt says:
– As an individual I have no legal ability to infringe your right to a firearm. –
July 20, 2010, 2:21 pmThat’s the Cruickshank case, in a nutshell.
L says:
I don’t know. I could see arguments both ways.
I’m not sure if “can be used as a weapon” is the defining criterion of what is an “arm.” A nuclear weapon is generally considered an “arm.” You’ve heard of the arms race, the START treaty, etc. “You can’t hug your children with nuclear arms.”
Sulfuric acid, I guess I would lean toward no. Fortunately, it appears that nobody really thinks the 2nd amendment protects your right to bear any and all arms, so even if it is an arm, the state can prohibit you from walking around with an open container of H2SO4 if it likes.
July 20, 2010, 2:33 pmJK says:
Nice post L.
July 20, 2010, 2:48 pmJK says:
the one at 1:37 ;)
July 20, 2010, 2:59 pmStrict says:
I said the drafters of the Second Amendment were not clear on what was meant by the prefatory clause, what was meant by “keep and bear arms,” what was meant by “infringed,” and the scope of the Amendment’s application.
That makes me disingenuous? That makes me a troll?
I’m sorry, but the Second Amendment is an example of shitty draftsmanship. The drafters could have made a lot of things clear, and it would not have to be the size of an encyclopedia.
Without much deliberation I could at least give it a start:
1. The right of an individual to own and possess guns is a fundamental right. This right is not conditioned on membership in a militia or on the need for self-defense.
2. This right shall not be infringed by the federal or state or local governments unless for compelling reasons.
– this is still not clear [what's infringed; what's compelling reasons], but it’s a lot clearer than the real thing.
July 20, 2010, 3:01 pmcboldt says:
– The drafters could have made a lot of things clear, and it would not have to be the size of an encyclopedia. –
July 20, 2010, 3:13 pmThey could have omitted the words entirely, leaving it at “2.”
Where is the power, in the Constitution, for the federal government to limit people’s access to ANY type of weapon?
Some early Congressional debates revolved around the use of federal funds to arm the public, and federal funds were expended for that purpose. The arms were state of the art.
Federal Farmer says:
I think they were as clear as they wanted to be. They said ‘people’ and meant it. They specifically used ‘arms’ because they did not intend to limit it to ‘firearms’.
‘Miller’ defined arms as those with a militia or military utility. That means we can have pretty much anything that our police and military (typical infantry) have.
Now it makes no sense to ban, for instance, the Ruger 10/22 for having no military value if the 2A ‘allows’ an M16. Likewise, why ban the Walther P22 if the 2A ‘allows’ a Barretta 9mm or a Glock 17, etc.
‘Arms’ in 1790 meant the same thing it means today…small arms. I don’t believe it encompassed crew served weaponry, though such were not banned back then.
Throwing up nuclear weapons as a straw man fails. If SWAT comes to your door they aren’t carrying an ICBM. The US Army isn’t going to nuke my neighborhood in Chicago to hit potential insurgents. Likewise tanks and planes are pretty useless in that kind of warfare. Not unless you don’t care about an excessive amount of collateral damage.
Similarily, it is ridiculous to suggest sulphuric acid is a suitable ‘arm’. Tear gas maybe.
July 20, 2010, 3:24 pmAnthony says:
It’s probable that the founders were thinking of individual weapons rather than cannons when they wrote the 2A, which pretty much eliminates nukes (and tanks, and crew-served weapons in general) as an issue, but single-shot 40mm grenade launchers are pretty clearly individual weapons, and weapons such as an RPG-7 or AT4 are arguably individual as well.
July 20, 2010, 3:40 pmFederal Farmer says:
Grenades pose a problem. There isn’t a nexus with self-defense as they are pretty indescriminate. Frankly I don’t see a reason to charge up that hill, so I leave those out.
July 20, 2010, 3:47 pmmojo says:
Infringe: (v.) – to shred around the edges
July 20, 2010, 3:58 pmFederal Farmer says:
Infringe and Encroach are largely synonymous. I like to pose the following question:
If our properties bordered and I encroached 6 inches or 6 feet for that matter, is that okay because I didn’t take all of your property?
In fact, even the slightest encroachment on property lines are vigorously rebuffed.
July 20, 2010, 4:00 pmmatt d says:
If I was trying to convince a friendly but results-based judge who wanted to protect M16s but not explosives, I’d suggest a rule that said:
Individual arms – strictly protected
Squad-level weapons (belt fed squad machine guns, or heavy machine gunsm for example ) – lesser protection (background checks, storage requirements, and licensing ok, for example).
“Indiscriminate weapons” (or maybe “area weapons”) meaning explosives, grenade launchers, RPGs, chemical weapons, etc., unprotected.
But the friendly results based judge named Scalia already pretty much foreclosed this with his bogus pseudo-Miller “in common use by civilians” test.
-m@
July 20, 2010, 4:14 pmJK says:
What makes you think the founders meant to include modern weaponry just because it might be used by the infantry of the day? Even if you are right that would seem to include weapons far more dangerous than small arms. Surface to air missiles, RPGs, high explosives, etc are all available to infantry and they are certainly all stuff that I would want if I was forming a militia responsible for the defense of the US in modern times.
Putting aside the Nukes issue I think there is a truly difficult question regarding what the upper limit of deadliness is that 2A protects. The common conservative position that you articulated would be hard pressed to allow the regulation of Stinger Missiles, a weapon I would hope there is a consensus against private ownership of.
Self defense would be a great line to draw, and is right Eugene often focuses on, but there’s really not much in the text that would restrict the right in that manner.
July 20, 2010, 4:40 pmFederal Farmer says:
Their writings, such as this quote by Tench Coxe:
The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
July 20, 2010, 4:46 pmBleh says:
If a person has an absolute right to keep and bear all arms — those people or collection of people would be committing murder, among other crimes. Since when is the argument that people can just commit a crime a valid method of enforcing public policy?
It may be practically impossible, but it does serve to show that most people accept some limit on the RKBA. (Not all people, of course, I had a calculus teacher in high school I used to talk politics with who thought anyone who could afford a nuke should be permitted to have one.) So the question becomes, is the right absolute, even out to the margins of practicability, or is it subject to a balancing test of some sort?
July 20, 2010, 4:49 pmJK says:
I basically agree with that, and I think it highlights an unfortunate fact: there’s no results neutral way of interpreting the text that doesn’t result in a highly impractical outcome. You either nulify like pre-Heller jurisprudence did, restrict to weapons analogous to those available in 1787, or allow all sorts of modern weaponry that would make Al-Qaada’s job all to easy.
I could be convinced otherwise, but the way I would try to balance reasonable results with the text is to say 2A protects two rights:
1. Right to ownership of weaponry in use by militia in 1787. I would also protect modern weaponry of similar deadliness but with improved safety, convenience, and reliability such as modern hunting rifles.
2. Right to ownership of weaponry necessary for effective self/home defense. This would be the primary right protected and would protect most small arms but not explosive based weapons that would be irrational for self or home defense.
It’s maybe not the most principled or the most practical, but it’s the best balance I’ve heard.
July 20, 2010, 4:54 pmr2d2 says:
Carl Donath says:
It is a right, which NOBODY is empowered to limit short of resolving
clashing with another’s rights.
If I understand you correctly, you argue that neither a parent nor the government could not limit a child’s right carry a firearm wherever they wanted to. Is that your position? If you believe that a parent could limit, where is that language in the 2nd Amendment?
Or do you mean that we should weigh “another’s rights” to see if there is “clashing”? If so, that seems like the mudpit that we already have.
July 20, 2010, 4:57 pmJK says:
So, that’s a yes to unrestricted private ownership of Stinger Missiles? Not to mention a yes to the admission of the private writings of legislators when determining legislative intent?
July 20, 2010, 4:59 pmBleh says:
Not to snark, but would all rifles have to be have to be single shot? (I assume that since you allow for increases in efficiency you wouldn’t require that they be muzzle-loaded or use ball and powder.)
July 20, 2010, 5:05 pmFederal Farmer says:
There really isn’t any period weapon that corresponds to Stinger Missiles, so it’s hard to say. The DC Appellate court created a ‘lineage’ test that didn’t seem to find favor at SCOTUS.
A common line in the sand is drawn around those small arms that a typical infantryman is equipped with. I think getting back to that should be the goal.
So Stingers would probably be out.
July 20, 2010, 5:06 pmFederal Farmer says:
Pretty much anything SWAT would bring when they come knocking. Those weapons must not be solely designed for mayhem else why would cops use them?
July 20, 2010, 5:09 pmJK says:
Yes to single shot. Although I admit I’m kind of pulling stuff out of my ass at this point and might change my mind with further reflection or exposure to better arguments.
July 20, 2010, 5:09 pmJK says:
While I have no problem with this rule on a practical level, in fact it sounds like just about the right place to draw a line, I’m just not seeing any principled basis for it in the text.
July 20, 2010, 5:11 pmFederal Farmer says:
They said ‘arms’ specifically to cover ‘arms’ that evolve. When phasers are invented they’ll be covered.
It’s not like ‘Freedom of the Press’ is limited to broadsides. Aren’t cable news and the Internet equivalent to ‘Assault Media’?
July 20, 2010, 5:13 pmFederal Farmer says:
There isn’t any specifics in the text of the First Amendment either, but we managed to cobble together standards for it. I’m sure we can do the same for the Second.
July 20, 2010, 5:14 pmJK says:
Sorry to Spam a bit, but I would point out the caviat that multiple shot rifles might well be protected under a right to home defense. While handguns and shotguns are the most common home defense tools I could see circumstances where a rifle’s increased range and accuracy would allow for less exposure to counter-fire.
July 20, 2010, 5:15 pmandinista says:
Several people have asked for an example of how to make a secured right constitutionally absolute (as long as it doesn’t come in conflict with other secured rights). My humble effort.
Congress shall make no law affecting in any way, the Executive shall have no power to limit at any time or place, the Federal Courts shall have no jurisdiction of, and the denial of such powers likewise to the governments of the several States, the right of the citizen to keep and bear arms.
(Then a separate grant of power would be given to the Executive and Congress to establish the militia and its regulations.)
The principle is, all branches of government must be explicitly denied power to infringe the RKBA, with the denial language appropriate for the branch, and no exceptions embedded in constitutional language.
(Note what this formulation leaves open for statutory efforts: local restrictions, non-citizen KBA regulations, crew-served weapons (the singular citizen).
It seems a big step, but the principle here is as old as Sun Tzu. You are as powerful as the enemy thinks you are. The left-liberal ideal is peace because nobody has guns but Leviathan. History shows invariably that this is the peace of the grave. My proposal here is, an armed society is a polite society.
July 20, 2010, 5:16 pmJK says:
I understand the framers would have assumed some margin for innovation, but the difference between a 1787 musket and a Kalashnikov strikes me as different than improvements in printing technology.
Ok, we’re on the same page then. My point was you can’t resolve these issues by repeatedly yelling clauses from 2A and claiming that anyone who disagrees with your “obvious” interpretation is ether stupid or dishonest.
July 20, 2010, 5:22 pmFederal Farmer says:
Such elaboration actually does more harm than good. If you specify who cannot infringe then you leave open arguments for those left off the list.
The Second is a clear command. The right shall not be infringed. By anyone. By the 14th Amendment, the Federal govt is empowered to forcibly prevent said infringement. Again, by anyone, most especially a State or Local government.
Back to the topic, I believe that a government attempting to restrict guns from its premises necessarily undertakes the burden of providing security for those using those premises.
Said premises must take extraordinary precautions if they infringe on our right to self-defense. Metal detectors, etc. I think the secure portion of an airport is a good model. Also they must provide lockers for gun storage, as many states now mandate.
July 20, 2010, 5:23 pmFederal Farmer says:
Yes, it isn’t sufficient, in my humble opinion, to simply yell “Shall not be infringed” which is one point made in the OP.
July 20, 2010, 5:26 pmcboldt says:
– So the question becomes, is the right absolute, even out to the margins of practicability, or is it subject to a balancing test of some sort? –
July 20, 2010, 5:27 pmIn theory, it’s absolute. One quality of “free people” is the ability to throw off the government, by force of violence if necessary, and establish a new one.
In practice, it’ll be a balancing test, because the party establishing the rule (the government) has superior firepower.
David E. Young says:
This is the quintessential Federalist Mantra. The simplest way of stating this often repeated concept was that tyranny under the proposed Constitution was impossible because the people were armed.
Since no source was provided by Federal Farmer for the above Coxe quote, it starts on the bottom of p.275 in The Origin of the Second Amendment.
Many compaints are made today about members of Congress and even the Attorney General not reading the laws they pass or criticize, respectively. Considering some of the comments in this thread about the clarity of Second Amendment language, it is equally evident that a number of those who comment about it have never read the extensive period sources that would clarify it.
July 20, 2010, 5:29 pmFederal Farmer says:
It is ok that the govt has superior firepower because the people have superior numbers.
After all, isn’t quantity a quality of its own?
July 20, 2010, 5:35 pmAnthony says:
It’s worth noting that this concept of the militia lasted for a small minority of the total lifespan of the United States; the militia system was dealt a mortal blow by its ineffectiveness during the War of 1812 and was finished off by the Civil War.
July 20, 2010, 5:39 pmFederal Farmer says:
And yet Militia were useful in WWII. You should read the amicus briefs in support of Heller by former military. That would cure your ignorance with respect to militia.
July 20, 2010, 5:43 pmcboldt says:
– It is ok that the govt has superior firepower because the people have superior numbers. After all, isn’t quantity a quality of its own? –
July 20, 2010, 5:46 pmWell, by superior firepower, I meant to denote which side would likely win the war. Certainly, number of combatants is in play there.
Not that the government would abide by the constitution (or Posse Comitatus) if the people were trying to throw off the government — at that point, all that matters is force of violence — if the side with superior weapons willingly forgoes use of them against the people on their own soil, then the theoretical “people are the boss” is honored.
I think the SWAT parallel would likely work, in practice, even though the people would not have an air force, missiles, or artillery.
Damned sobering sort of stuff to talk about – makes one think how luck we are to not be in a war zone with minefields, roving bands of armed thugs (government and non-government), etc.
Federal Farmer says:
Thankfully the mere existence of an armed populace is probably sufficient to prevent the actual need for its use.
Also, I’d expect quite a few soldiers to refuse or even desert if ordered to fire upon US civilians.
July 20, 2010, 5:53 pmJK says:
I think you’re overstating the extent to which understanding the nature and purpose of the militia in 1787 is dispositive on what the second amendment protects today. What does a thorough understanding of the militia of 1787 say about the private ownership of M60s or RPGs?
July 20, 2010, 5:58 pmCarl from Chicago says:
It’s amazing to ponder the myriad ways to make an absolute relative.
July 20, 2010, 6:01 pmFederal Farmer says:
Yep.
One tenant of truly great engineering design, which I think is applicable to Constitutional design, is to make it as simple as possible, but no simpler.
A design is not done when you put the last thing in, it is done when you’ve take the last thing out.
The Second Amendment was ‘designed’ in that manner. It was added to and removed from until it said exactly as much as they wanted and no more or less.
Just adding that I know you, specifically ‘get it’. I post this for those here that are struggling.
July 20, 2010, 6:07 pmAnthony says:
An armed populace isn’t effective against an organized military; plenty of dictatorships have heavily armed populations (e.g. Iraq under Hussein). Your second point is true but isn’t really relevant to an armed populace (actually, an armed populace shooting at them would almost certainly make soldiers less likely to refuse/desert, not more).
July 20, 2010, 6:11 pmFederal Farmer says:
Insurgents are hard to pick out. Especially here where we all look alike and could be some soldiers uncle, cousin or aunt, etc.
Americans have a long history of not rolling over to the whims of penny-ante dictators. You can’t compare our culture to the tribal culture of Iraq. Trying to export democracy there is an act of conceit.
July 20, 2010, 6:21 pmcboldt says:
– plenty of dictatorships have heavily armed populations (e.g. Iraq under Hussein) –
July 20, 2010, 6:23 pmDo you know what the firearms laws of Iraq were, under Saddam Hussein?
The design of the constitution is intended to provide the people with sufficient means of violent force to depose a dictator or any other non-responsive form of government.
JK says:
Would you agree that “suficient means of violet force to depose a dictator” would have to included unregulated ownership of anti-aircraft weapons (e.g. Stingers), anti-armor weapons (e.g. RPG/bazookas), large quantities of high explosives, etc?
July 20, 2010, 6:28 pmcboldt says:
FWIW, turns out that I looked into firearms laws of Iran, not Iraq under Hussein, so I truly am ignorant.
July 20, 2010, 6:41 pmLooking for my prior research, I read that one of the first actions the US attempted upon defeating Hussein’s armies was to prohibit the public from keeping and bearing arms. That policy was relaxed.
Bleh says:
Sorry, where do you read all that in the Constitution? Is that all in the militia clause?
July 20, 2010, 6:43 pmcboldt says:
– Would you agree that “suficient means of violet force to depose a dictator” would have to included unregulated ownership of anti-aircraft weapons (e.g. Stingers), anti-armor weapons (e.g. RPG/bazookas), large quantities of high explosives, etc? –
July 20, 2010, 6:49 pmI’m not a military tactician, etc., but I think the answer is no.
The dictator maintains control by regulating small numbers of people at one go, not by wholesale warfare. The ability of a broad swath of the public to physically resist orders would likely result in a political solution rather than a wholesale violent (say, > 10,000 total deaths) one.
If the question is what’s it take to kill the dictator, then you’re up in the high explosives realm.
Honduras was able to rid itself of a dictator-wannabe pest with a military approximately as powerful as a hoard of SWAT teams.
cboldt says:
– Sorry, where do you read all that in the Constitution? Is that all in the militia clause? –
July 20, 2010, 6:50 pmNo apology necessary. Good day.
JK says:
cboldt,
I’m not a military tactician either (although I’m willing to throw down the gauntlet and claim I can whoop anyone at VC in Hearts of Iron ;) ), but I’m just not seeing how groups of people with only small arms and no explosive based weapons can deal with armor.
It certainly appears to be the conclusion of the insurgents in Iraq that modern military forces are best countered with various forms of explosives (IEDs, RPGs), and the Afgan resistance to the soviets was all about Stingers and similar anti-aircraft infantry weapons.
To reiterate my previous statements, my bet is that we have similar policy preferences on arms regulation. I’m just not convinced that this militia/government counterweight theory is practical understanding of the modern 2A due to it’s apparent inclusion of heavy weapons.
July 20, 2010, 7:06 pmcboldt says:
– I’m just not convinced that this militia/government counterweight theory is practical understanding of the modern 2A due to it’s apparent inclusion of heavy weapons. –
July 20, 2010, 7:17 pmI think the calculus is different from “war” in the usual sense for many reasons. I haven’t thought it all through, but I don’t think force parity is essential, except for the case where the government literally invades its won country – and this is a big, tough country to invade. See our efforts in Afghanistan.
There would be a HUGE political hit if the government used heavy weapons on its own soil. And I don’t mean “political” in the usual sense of people being pissed the next time they go to the polls, I mean pitchforks and torches, and effective tactical responses that serve to drive the political class underground / out of view. The people could just ignore the government law.
I don’t think it will happen – half the country wants something resembling European socialism, and would probably prefer being disarmed.
cboldt says:
– It certainly appears to be the conclusion of the insurgents in Iraq that modern military forces are best countered with various forms of explosives (IEDs, RPGs), and the Afgan resistance to the soviets was all about Stingers and similar anti-aircraft infantry weapons. –
July 20, 2010, 7:20 pmThose can be obtained or made illegally. If the country is at the point of open insurrection against the established government, violating 18 USC is of no concern.
cboldt says:
– I’m just not seeing how groups of people with only small arms and no explosive based weapons can deal with armor. –
July 20, 2010, 7:25 pmFor combat, think “Caterpillar.” No sane person is going to enter the small arms side of a naked “small arms vs. armor” contest.
There are many tactics other than combat.
Arthur Kirkland says:
Maybe the founders just weren’t that into the RKBA.
July 20, 2010, 7:30 pmJK says:
I guess I’ll just agree to disagree here. It seems to me that the government uses armored vehiles all the time precesly because the weapons citizens are allowed to have cant effectively deal with them. The FBI used armor at Waco and while there were plenty of people who didn’t like it there wasn’t some sort of breakdown of the Federal Government’s legitimacy.
I guess I’d be willing to stick my head in the sand a bit and pretend that heavy weapons would be unnecessary in a violent confrontation with the government as that’s the result I’d want anyway.
Hummm… I don’t like the taste of an argument that says that a legal right is unnecessary because you could engage in illegal activity.
For the record though, if we every go to war against the Government together and you expect my to face Abrams and Apachies with fertalize bombs launched from potatoes guns, I’m going to run. Sorry :-(
July 20, 2010, 7:35 pmcboldt says:
– The FBI used armor at Waco and while there were plenty of people who didn’t like it there wasn’t some sort of breakdown of the Federal Government’s legitimacy. –
July 20, 2010, 7:56 pmNo breakdown of legitimacy, I suppose, but that action, combined with decisions like Heller that radically misstate Miller, result in an absence of legitimacy based on rule of law.
If the FBI and military forces at Waco had been confronted with 1,000 peaceable, but armed citizens, the situation would have taken on a political dimension.
Some number of people are aware that what the government is engaged in is brute-force rule, not rule of law.
So, as a matter of retaining legitimacy by being the biggest goon, sure, they win. But the government is taking a risk when it lies and gets caught.
Again, I see half the population happy to be ruled by brute force, and clamoring for “more government.” They won’t become restive until the government fails to deliver the bread and circuses, and if I’m alive when that happens, I’ll wish I hadn’t lost my firearms in that boating accident.
– I don’t like the taste of an argument that says that a legal right is unnecessary because you could engage in illegal activity. –
Hey, if your engaged in insurrection, who cares about the parking laws!
The argument only appears in a context where the people are ousting the government. The amount of disorder depends on many factors. I think Honduras is an interesting recent event in this regard. Not many laws were broken.
Displaced Midwesterner says:
A good example of how hard drafting a clear law really is. The first clause is actually not bad, the second seems to leave open the ability to ban outright, just not incrementally limit, the third deprives courts of the ability to hear a case complaining about the right being violated, and the fourth is just a grammatical nightmare….
July 20, 2010, 8:07 pmDisplaced Midwesterner says:
If you consider modern America to not be governed by the rule of law, then you can pretty safely bet that no country anywhere, at any time, has ever had the rule of law; nor is it likely to ever happen.
July 20, 2010, 8:16 pmJK says:
Ok, so your point is that citizens with small arms can force the Government to either kill them or give in, and killing large groups of people just isn’t going to be possible while maintaining moral legitimacy? That makes sense, but it does strike me as a bit different than “suficient means of violent force to depose a dictator” because it’s not so much the citizenry’s ability to do violence as their willingness to die to prove a point.
I do see the point that I would be necessary to be armed because a totally unarmed group, even one that was willing to die in mass, could probably be subdued with less-than-lethal methods and the government could avoid the type of outrage that would result from mass slaughter.
I don’t recall this standard being raised before, but I find it interesting: Weaponry necessary to resist non-lethal government coercion. I’ll have to think about it more but at first blush I like it.
July 20, 2010, 8:20 pmcboldt says:
– Ok, so your point is that citizens with small arms can force the Government to either kill them or give in, and killing large groups of people just isn’t going to be possible while maintaining moral legitimacy? –
July 20, 2010, 8:39 pmNo. It was that a standoff with force of violence on both sides is possible, and in my Waco hypo, standoff parity is obtained with number superiority, and I suppose reluctance on the part of the government to start shooting. There would be casualties on both sides, and the action could spark armed confrontations and refusal to submit to authority elsewhere.
In a broad sense, “sufficient force” encompasses many variables, not just parity in type or number of arms. And yes, it does require a willingness to die, but the object obviously isn’t merely to prove a point.
– a totally unarmed group, even one that was willing to die in mass, could probably be subdued with less-than-lethal methods and the government could avoid the type of outrage that would result from mass slaughter. –
Recent history shows the unarmed people aren’t willing to die in mass, they are murdered by their political opponents. The survivors submit. Outrage is an inevitable but irrelevant consequence to the victor.
At any rate, “freedom” is a combination of mind-set and physical ability. And then we have Janis Joplin’s take on it, “just another word for nothin’ left to lose.”
cboldt says:
– If you consider modern America to not be governed by the rule of law … –
July 20, 2010, 8:48 pmI’m aware of the 2nd amendment jurisprudence, not so much in other areas (a little bit in surveillance), and the series of legal precedents produces a rule of law that is clearly erroneous.
The Presser case SAYS states may not prohibit the people from the right to keep and bear arms; the federal courts CLAIM the Presser case says states may do whatever works for them. Is that “rule of law” in your book?
In Miller, the defendant was acquitted, there was no trial. In the late 1930′s the federal law he was charged with violating was found to be unconstitutional, a violation of the 2nd amendment, by a federal court, and by implication of contemporary evidence, by SCOTUS. In 2010, the United States Supreme Court CLAIMED Miller was convicted, and that the law was upheld. “Rule of law”?
How much trust do you put in an institution that shows such contempt for the principle of rule of law? I’m not looking for an answer from you, it’s a rhetorical question, and each person will decide for themselves.
JK says:
To bad I thought we might have hit a point of agreement. I just can’t see 1000 guys with AR15s being able to do anything but die against coordinated modern military assault. A single Apache could turn the entire mob, and any (civilian) fortifications they took cover in, into ashes.
What the government couldn’t do is go in with tear gas and rubber bullets and subdue 1000 guys with small arms and basic proficiency. And that strikes me as a pretty significant bargaining chip in the hands of the civilian militia, such that a government that wishes to maintain peaceful sovereignty and moral legitimacy would be rightfully scared of.
Overall though I think I agree with you about what weapons 2A ought to protect: all small arms, but not military grade hight explosives and anti aircraft/armor weapons, with mounted machine guns being a grey area; and the reasoning for this: ability to resist government coercion as a final check of government legitimacy. What we apparently disagree on is the prospects of a citizenry armed with 2A protected weapons in tactical engagements with modern military units.
July 20, 2010, 8:55 pmMichael Ejercito says:
How well did they do in Iraq?
Afghanistan?
July 20, 2010, 9:06 pmJK says:
As I noted in a previous post the success of these insurgents bas based on access to weapons that almost no one thinks are protected by the 2nd amendment. Anti-armor IED & RPGs are the weapon of choice in Iraq, and anti-aircraft weapons (eg. Stinger Missiles) were central to the Mujahadeens success in Afghanistan.
July 20, 2010, 9:13 pmcboldt says:
– To bad I thought we might have hit a point of agreement. –
July 20, 2010, 9:32 pmAssuming we did, it was just over a matter of military/political tactic, and each of us has disclaimed any particular skill in that area.
I predict that what the government will admit as within the ambit of the 2nd amendment will be far short of what either one of thinks is appropriate. And maybe even that concession results in the public retaining sufficient force. The next trick will be to find enough wisdom and humility, on both sides.
Michael Ejercito says:
IED stands for improvised-explosive devices, which implies they are manufactured from commonly-available materials.
July 20, 2010, 10:04 pmJK says:
I know what it means, do you believe the materials Iraqi insurgents use to make IEDs are protected by the second amendment or did you just see a chance to throw out some snark?
July 20, 2010, 10:25 pmKirk Parker says:
JK,
Indeed, the internet is far, far more different from an 1787 printing press than an AK is from the musket.
Regarding armor at Waco, the only reason it was effective (in the amounts used) was that nobody else felt moved to intervene. It’s pretty darn easy to disable a stationary M1 if it’s not well guarded, using ordinary flammable materials widely sold to anyone with cash or a bank card.
Or if it helps, here’s another way to look at it: the Abrams, the Bradley, and the Stryker are not self-sufficient for long periods of time; they aren’t any any way analogous to a nuclear submarine in that regard. The boys inside are going to want food and water, and an emptying of the chamber pots, at fairly frequent intervals.
July 20, 2010, 11:04 pmmack says:
Let’s put it this way – as far as force parity – there are more than 300 million guns in private hands – (personally I would estimate double that number as many people will not admit to others how many guns they actually have) – there are conservatively 30 percent of the population that admits to owning guns. If 5 percent of those individuals actively engage in warfare against the government that would mean about 15 million insurgents. The government police and armed forces would be severely undermanned attempting to put boots on the ground to control the population and protect the infrastructure and political power structure. This would be far worse than the military attempting to control a foreign power. All the high tech weapons systems and support – for maintainence and manufacturing those planes, copters, hummers, missiles, bombs, ammo, would be open to hit and run attack – all those military bases here – all the electrical power grid – all shot through with saboteurs or sympathizers. Would recent military returnees and veterans all side with the government – would all active duty side with the government. The point is that the idea of waves of citizen milita insurgents throwing themselves into open attacks against tanks and such is crazy – it would never happen that way – it would be more along the lines of common working men – hitting targets of opportunity – and slipping back into the general work a day population. And yes bombs or IEDs would play a huge role – I hate to say it (God forbid that any of this would ever happen) – but it would only take a couple of dozen or so farmers with chemicals and vehicles that they have available on a daily basis to wipe out the downtown of almost any major city and make 9/11 look like a minor incident.
July 20, 2010, 11:15 pmRon says:
By conflating “reasonable restriction” with “infringment” in coming up with what is permissible government action, aren’t you in essence acquiescing to the reasonable basis standard of review?
July 20, 2010, 11:55 pmGil says:
Stuck between a rock and a hard place? If you go for the self-defence side then people are apparently willing to settle for small arms. If you go for the militia/overthrowing the government side then you would realise that all arms should be necessary. You’d feel quite the fool if government tanks roll in and all you have is a hunting rifle. Then again you could go for the Libertarian approach and whatever government forbids you secretly stockpile.
July 21, 2010, 1:04 amAnthony says:
1,000 peaceable citizens, armed or not, would have created a political dimension. The only effects of adding weapons to the mix would be a vast increase in the probability of an mistake which gets a lot of people killed.
July 21, 2010, 3:23 amjack osborne says:
The argument seems to be that the citizens can not be trusted with modern weapons, such as Stinger weapons.
Why is that?
It seems that a knife can kill as easy as a Stinger if the citizen wants to use a knife.
Given the volume of arms in the country it is amazing that so little havoc is raised. Would it be more dangerous simply because the citizens have more guns?
There are machine gun owners in the USA, and very little machine gun deaths caused by those machine guns.
What is it that makes citizens more dangerous if they have more and better guns?
there are citizens with cannons that are operable and they have the ammunition to go with it. Are they more dangerous than the switch blade knife?
I ask that as I carried a switch blade in my high school years and never found a reason to use it to harm anyone, yet , now, they are dangerous weapons, and banned!
Let people carry, own, and use what arms they can afford and if they harm someone, or something, do something to them, and use the death penalty,quickly, when necessary
July 21, 2010, 4:04 ammack says:
Really the where to draw the line argument is mostly a straw man – given free access to high tech military equipment – such as copters, tanks, planes, missiles, smart bombs – 99.9 percent of the general public couldn’t afford them and then there is the cost and effort to maintain them and then the expense of training with them – even someone with nefarious intent would see little benefit to owning such high dollar luxury weapons. Consider that it is legal to own artillery pieces, not just old cannon but actual WWII artillery and tanks and planes like B-29′s and jet fighters – and that people can also own and have access to high explosives – let alone the commonly available do it yourself explosives from everyday materials – and as you can see from the actual record – you do not have incidents of mass killings and such – most owners of such and of machine guns are collectors and hobbyist. After- all what is there to stop Bill Gates from buying his own island chain and building or buying a nuclear weapon? I don’t believe there is in this country at least any specific federal law against him doing so – but somehow I doubt Mr. Gates has any desire to own one – as he sees no point to owning one. Also the possession of radioactive and explosive materials and high explosive devices are regulated and restricted due to safety concerns related to potential accidental exposure or explosion – thus even any significant amount of black powder is required to stored in a magazine that meets the requirements of federal and often state and local laws.
In any case the USSC has already signaled where they draw the line in general terms – through their use of the term – common use – which means that they draw the line with weapons that are not commonly used and/or commercially available to the average citizen – thus no RPGs, no smart bombs, no missiles, no tanks or gunships. It only gets a little fuzzy around machine guns – I would doubt they would overturn the NFA completely in that regard – at most they might (though still unlikely) allow machine guns under the current registration and background check process to be protected by the 2nd and if they did then they might overturn the Hughes Amendment – but I highly doubt it. Personally, I believe the only way that machine guns would be covered by the second amendment would be through legislative action – and I doubt that there is a ground swell of popular demand for that. There might be some parts of the NFA open to challenge dealing with the nonsensical SBR stuff and possibly sound suppressors given the health/hearing benefits and the social benefits (less range noise). Still I doubt the courts will be willing to open even those cans of worms.
Philosophically, I believe that the Second means what it plainly says – hands off – thus as Trench Coxe said, “The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
Consider that the founding fathers were amenable to the private ownership of the most powerfull weapon of their day – ships armed with cannon – That could even then kill hundreds and lay siege to a city or town, and if using incendiaries burn large portions of one down.
In the end most people decide their position on this issue not on the constitution or the Bill of Rights or the historical record of such – but based on what they feel and then justify their position based on those feelings. Some trust to freedom and some to authority – some trust their fellow citizens and some trust their government more. Personally, I find the record clear the second amendment was intended to protect the RKBA as indicated by Trench Coxe’s quote. And as I “believe” in natural or inalienable rights – I do not “believe” that the right is dependent on the 2nd Amendment to exist or not. However, I “believe” that it is wiser to trust in the ultimate benevolence of freedom and my fellow individual citizens than it is to trust in the benevolence of government authority and the illusion of security that it provides. I base that on two things – one the number of citizens murdered by their own governments in just the last one hundred years – and two that government has no conscience or moral compass – whereas most individuals do.
July 21, 2010, 11:25 amAnthony says:
Because in any population there’s a small number of people who are crazy or evil, and when they go off the handle we’d rather have them be limited to killing the number of people they can kill with small arms.
July 21, 2010, 12:25 pmcboldt says:
– Because in any population there’s a small number of people who are crazy or evil, and when they go off the handle we’d rather have them be limited to killing the number of people they can kill with small arms. –
July 21, 2010, 12:50 pmI don’t think the concern is irrational, but I don’t think the risk of permitting the public to possess more than small arms is great. Nuts lack the $$ or access to get anti-aircraft missiles or other type of mass casualty military weapon. Their tools of mass casualty are arson and block the doors – cheap and effective. The Afghans got anti-aircraft missiles for free, from outside governments (the US).
The evil ones run for election.
jack osborne says:
My father, serving in the Phillipines in the 1910-25 , at various times, did in fact see a Moro kill 35 people with a kris blade before being shot by an American soldier.
Mass killings are easier than individual targeted killings.
Fear of your neighbor is fear of the dark, unless you own a gun, which limits the amount of damage your neighbor can do!
Which , also, is why you don’t see much gun killing in Isreal, where guns are prevelant in society.
But, everyone is entitled to their own beliefs, at least for the present era!
July 21, 2010, 11:09 pmilbob says:
Regardless, the Supreme Court in Heller explicitly stated that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
July 22, 2010, 4:40 pmOne might argue that the court made an error in using this as an example. There are a lot of short barreled shot guns in private hands and virtually all are possesed for lawful purposes, and many are possessed quite legally.
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September 1, 2010, 10:10 am