A few minutes ago, the Ohio Senate voted 21-12 to override Republican Governor Bob Taft's veto of a bill to reform Ohio's gun laws. The Ohio House had previously voted 71-21 to override the veto of House Bill 347. Because both houses achieved the necessary 3/5 majority, the bill will become law in 90 days.
Today's vote is the first time that the Ohio legislature has overridden any veto since 1986, when a line-item budget veto was overridden. It is the first time since 1977 that a veto of an ordinary bill has been overridden.
The bill makes a variety of changes to Ohio's Shall Issue law for concealed handgun licenses. It explicitly prohibits local governments from creating no-carry zones, except in places where state law already forbids carryings. The bill also removes the requirement that concealed carry permitees must, when driving, keep the handgun in plain view in the car, or in a locked container.
Even more significantly, the bill eliminates over 80 anti-gun local ordinances, including bans on cosmetically-incorrect self-loading firearms (so-called "assault weapons") in Cleveland, Columbus, Dayton, and Cincinnati. Like the vast majority of states, Ohio does not have an "assault weapon" ban, but Ohio has had more cities with local bans than has any other non-ban state.
As I detailed in a 2003 Issue Backgrounder for the Independence Institute, almost all states have some form of preemption law which restricts or prohibits local gun laws. The strong, ccomprehensive preemption law enacted in Ohio is the model used in about half of the states with preemption.
Some other features of the bill:
The bill begins: "The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio..."
The bill bans all local gun control laws which do not duplicate state or federal law. Litigants who bring a successful suit under the bill are entitled to attorney's fees.
Localites may still enact zoning laws which: 1. Ban gun stores in residential or agricultural areas. 2. Impose laws about hours of store operation, as long as those same laws are imposed on other non-gun stores.
In practical effect, the Ohio bill is the most significant roll-back of gun control that has ever been enacted by a state. Preemption laws swept the country in the 1980s, after Morton Grove, Illinois, banned handguns. In most state legislatures, the bills were intended to prevent future local gun bans, since there were few local bans that were in effect. I am not aware of any other state where a preemption law has wiped out so many local ordinances which were already on the books.
Among the Senators voting for the override was Democrat Marc Dann, the Attorney General-elect of Ohio. I knew Marc when he ran that Gary Hart campaign in Michigan in 1983-84, for which I was a volunteer. He is a good man with limitless energy.
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[DK: When I was in Ohio testifying for CCW in the mid-1990s, an experienced local activist told me that preemption would be essentially impossible to enact. So don't give up hope.]
[DK: All Independence Institute backgrounders and issue papers are available for free at i2i.org. My own II materials are also available at www.davekopel.org]
[DK: That's a point relevant to Ohio's enactment of Shall Issue in the first place, not to today's reform of the required method of automobile carry.]
I can see how the Right to Bear Arms was an important right in a world where the best weapon anyone could have was a musket, or maybe a cannon. But in the modern age, where the government has bombers, fighters, tanks &hand grenades versus the citizen's pistols &shotguns, how does this right protect the citizenry? And if it doesn't protect us, what good does it do?
[DK: I suspect that the Ohio legislature was not concerned with revolution against tyranny, but with protection from criminals, for which guns are fine, and tanks, etc. are inappropriate.]
You could look at that two ways: 1) people should be allowed to own their own tanks and planes.
But, more realistically, if you want evidence of the usefulness of small arms in combatting modern military weapons - see the "insurgency" ongoing in Iraq.
I'm not trolling--I'm uninformed on the nuances of 2nd amendment theory, and am genuinely interested in knowing if there is an answer to this question.
By the same token: how do proponents of Second-amendment-as-individual-right justify laws that, for example, prohibit convicted felons from owning handguns? Surely no one would argue that the first amendment contains an exception for convicted felons (speaking here of people who have done their time, are no longer in jail or on parole or probation). What's the justification (from a constitutional interpretation perspective) of denying convicted felons a (purported) fundamental right guaranteed by the constitution?
(Again--I mean these as serious questions. I'm not trolling. If there's a site somewhere online that answers these questions, I'd be grateful for a pointer.)
[DK: The main 19th century test was "civilized warfare" weapons were ok; that is rifles, swords, etc., but not bowie knives, or other weapons associated with brawlers. In this article, I suggest updating the test to encompass ordinary police equipment (e.g., rifles, shotguns, handguns); this test would leave out nuclear weapons, etc. http://davekopel.com/2A/LawRev/19thcentury.htm. As for convicted felons, the 19th century case of Cummings v. Missouri (discussed in a footnote in the above-cited article) might support your theory, but the modern federal Court of Appeals cases are unanimously on the other side.]
If I have a constitutional right to keep and bear arms, but the US Marshals at the local federal courthouse won't let me into the building while carrying my handgun, are my constitutional rights being violated? Can the government deny me access to a government service (entry into federal building) only on the condition that I effectively waive a constitutional right?
It is remarkable how many despotic regimes have endured through either disarming and starving their populations or through heaps of outside aid that allow them to maintain a powerful army despite lack of a civilian population of contributing to its upkeep.
History is full of tyrannical regimes and 1st world invaders being overthrown by unsophisticated peasant armies. Our right to keep and bear arms comes from one such shocking upset.
-banning violent felons from owning weapons. There is a compelling soceital interest here in preventing criminals from reoffending- people with a history of committing violent crimes should be barred from weapons ownership
-banning civilian ownership of nuclear weapons. Little benefit from civilian ownership of nukes and strong compelling interest in not having nukes being set off, even for supposedly good reasons.
-regulating use of tanks on the roads or the use of fighter jets in the air. Newsflash, civilians already can own tanks and fighter jets. Where do you think hollywood gets tanks from when it does WWII movies? They borrow them from civilian collectors. But you have to obey all the regulations already in effect for using vehicles on public roads or flying planes in the air. This is already the law.
That's a policy argument for denying guns to certain felons. I was looking for a constitutional argument. Maybe I should give a hypothetical to ensure clarity.
Steve beats a friend to death with a baseball bat and is convicted of murder. He is sentenced to 20 years in prison. Upon his release, he self-publishes and distributes a pamphlet arguing in favor of federal funding for stem-cell research. The police arrest him for "pamphleteering by a convicted felon." Clearly his 1st amendment rights have been violated--I hope we can agree that no court would allow Steve to be punished for such pamphleteering.
After his arrest gets thrown out, he goes to a gun shop to buy a handgun to protect himself and his family. The gun shop owner informs him that he can't buy a gun because he's a convicted felon.
My question: assuming that the second amendment guarantees the right of some individuals to keep and bear some arms, what is the constitutional argument (under the 2d amendment or some other constitutional provision) for denying those rights to certain individuals on the basis of their having been convicted of a crime?
I could suggest learning better driving manners, but in fact people who go legally armed tend to be very careful not to lose their tempers; so feel free to continue driving boorishly.
I think it could be argued that since being convicted of certain crimes allows the government to remove many of your basic civil rights for a period of time (throwing someone in prison is a pretty extreme violation of someone's civil rights), then legislatures can choose to remove civil rights upon conviction of a crime. I suppose then the issue would be whether it's "cruel or unusual" punishment to disbar someone of their second amendment rights. Personally, I think there should be provisions for restoration of rights, but I'm not sure I would argue that the right to bear arms trumps disarmament of people convicted of certain crimes.
But that's just my opinion, and certainly not a lawyerly or scholarly one.
As far as the nuclear arsenal issue, I think the reasonable argument is that the second amendment applies to ordinary private arms that would be useful for self-defense and are equipment normally fielded by individual soldiers. Nuclear weapons wouldn't apply here, and perhaps neither would other types of heavy ordnance.
If you want my opinion, the second amendment should be read to apply to personal arms, which, to many other people's disagreement, would include fully automatic assault rifles and many other light infantry weapons. But crew served weapons and ordnance generally only useful in context of an organized army wouldn't be covered. I also thing the second amendment wouldn't prevent states and local government from prohibiting possession of ordnance in contexts where it would be inherently dangerous to the community, so if you wanted a mortar launcher, that would be fine. The mortar shells themselves might be regulated or prohibited depending on circumstance. Same with grenades and other explosive ordnance.
But I'm not a laywer or legal scholar. It's just what I've come up with thinking a lot about the subject. I'm sure there are some hard core libertarians out there who will be pissed I'm arguing they don't have a constitutional right to own their own Pershing Missile ;)
yikes, that's an awfully unsupported sounding "fact."
Jeff, disarmed people are at the mercy of any lout with a rock, so they become dependent on government for protection. Big-government types, whether Republican or Democrat, favor gun control precisely because it encourages this dependency.
Armed people, having a defense of their own, are a lot less prone to buying into big government. Although it's doubtful they could prevail against a modern military, they are unlikely to give government so much power that prevailing would be necessary.
Personal experience as a sometime carrier, also supported by the rarity of legal carriers shooting in anger; either legal carriers are saints to begin with or something makes them very patient!
As I pointed out in the post above yours, even strict scrutiny permits some level of government interference with a right. It just has to be a compelling interest, with the interference narrowly tailored to serving that interest without otherwise infringing upon the right.
But you're ok with them operating a two thousand pound machine that reaches speeds of 100 miles an hour and routinely passes within inches of school buses, ambulances, crosswalks,etc. Interesting. Wanna compare many people are victims of vehicular homicide each year compared to firearms on the road?
*Steve* in your example should have gotten the death penalty and been executed. Then no need to consider his post release pamphleteering or desires to own a gun. We should just give somebody a couple bucks to beat *Steve* to death with a baseball bat and then make his surviving family members pay for the bat and the labor involved.
Says the "Dog"
The notion that rights were unlimited and could not be taken away, even for life, would have been quite confusing to the Framers, who had certain notions of what citizenship meant. For example, the 1777 Test Act of Pennsylvania declared "whereas allegiance and protection are reciprocal, and those who will bear the former are not nor ought not to be entitled to the benefits of the latter" the Act specifies (on pages 112-113) that all white males refusing to take the oath "shall during the time of such neglect or refusal be incapable of holding any office or place of trust in this state, serving on juries, suing for any debts, electing or being elected, buying, selling or transferring any lands, tenements or hereditaments, and shall be disarmed by the lieutenant or sub-lieutenants of the city or counties respectively." There are similar laws in Virginia and some other colonies. My book Armed America hitting bookstores next month discusses this.
The gun control groups have tried very hard to find a bunch of examples of concealed weapon permit holders murdering people with their guns. They have found a very few--and very few of those cases fit the "lost his temper, drew his gun" scenario. At best, they suggest that concealed carry permit holders are committing lots of murders, but somehow getting away with it, because the police never arrest them for these murders.
And I don't see why nuclear weapons (or RPGs, etc.) would not qualify as civilized warfare. They are certainly modern implements of warfare. The 19th century cases use the term to rule out concealed weapons and would seem to support a concealed carry ban.
Current federal law prohibits a person from purchasing a gun in any state except where he is a resident. Because the Second Amendment has never been incorporated, it doesn't apply to the states. Therefore, the legislature of a state that has no provision for the right to bear arms in its state constitution can enact a law prohibiting the sale of some, or even all, firearms. Because of the federal law prohibiting out-of-state purchases, this effectively prohibits residents of that state from purchasing some or all firearms, even if they NEVER bring those firearms into their home state. For example, a person could belong to a gun club in another state that provides secure storage facilities. Thus, a state legislature can make it impossible for its residents to do something out-of-state that is completely legal in that other state.
For this reason, I just don't understand how the federal requirement for purchasing in your own state withstands constitutional scrutiny. It is a mechanism for a state legislature to control what happens in a location where it has no jurisdiction. Is there a simple answer to this question that I am missing?
Understanding the decisions of this period without the context of the struggle over dueling is pretty difficult. See my book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger, 1999) and in less detail, For the Defense of Themselves and the State (Praeger, 1994).
"Arms" in the sense that they are used in the Second Amendment meant small arms. A grenade might well qualify; there are newspaper ads of the time offering "hand grenadoes" for sale. (Being as they were filled with black powder, they were probably closer to a modern pipe bomb than a TNT-stuffed hand grenade.)
Nuclear weapons, however, aren't really "small arms" in any sense that the Framers would have understood. If you showed up at the Constitutional Convention with a Glock, or an M-16, everyone would have been very impressed, but these would be recognizably a "small arm." Sure, the rate of fire is higher, and the accuracy is somewhat better (and I emphasize "somewhat" for a reason), but there is less functional difference between a pepperbox of 1789 and a Glock 21 than there is between a hand-operated printing press and a modern newspaper printing plant.
On the other hand, a nuclear weapon--even a Hiroshima-sized weapon--is many orders of magnitude more destructive than even the most fearsome battleship of the day--or even a fleet of them.
A few state supreme courts have disagreed, either striking down state laws because the Second Amendment is a limitation on state law as well as federal law, such as Nunn v. State (Ga. 1846), In re Brickey (Ida. 1902); or citing the Second Amendment with respect to determining whether a particular state law is constitutional, such as State v. Chandler (La. 1850); State v. Smith (La. 1856); State v. Jumel (La. 1858); Cockrum v. State (Tex. 1859); State v. Nickerson, 126 Mont. 157, 166 (1952).
Yup.
Yes, and that is that judges today seldom actually follow the Constitution and the law on matters that really matter to them--like disarming the riff-raff (that's you and me).
If there is a process, under the 5th and 14th Amendments, that suffices to deprive someone of life, liberty, or property, certainly there is a process that is sufficient to deprive one of their 2nd or 4th amendment rights. That process for a felon was their trial. The punishment for a conviction extends beyond a temporary (or permanent) loss of liberty. It can extend to warrentless searches (in prison or during probation) or deprivation of gun rights (in prison or otherwise). This extends as well to other unenumerated natural rights, i.e. right to travel.
This leads to a related question: What is the difference between these rights and rights that no process is sufficient to deprive? Or do such untouchable rights exist?
Instead, when federal marshals came to arrest him for delivering a speech, he got into a bloody shootout that left a number of people dead.
We can learn something about the effectiveness of small arms against heavy military equipment from the history of the Battle of Stalingrad, a turning point in WWII. Soviet snipers like Ivan Mikhaylovich Sidorenko (500 kills) and Vasily Grigoryevich Zaytsev (200 kills) were tremendously effective against, and greatly feared by the German Army. German superiority in tanks and other military equipment proved ineffective against the entrenched Russian defenders. The bombed out buildings provided cover for the snipers, and the debris-strewn streets made tanks virtually useless.
Didn’t the Germans have snipers too? They did, and some very good ones like Heinz Thorvald (400 kills), but the Soviets had a seemly trivial, yet important equipment advantage: a much better telescopic sight. The German scope required tools and an average of 5 trials to align the scope, while the Soviet scope had hand-operated adjustments and could be aligned in 3 trials. For this and other reasons, Soviet sniper fire was far more effective than the German.
So don’t put down the effectiveness of small arms, particularly for urban warfare.
There used to be a program that allowed convicted felons to apply to have their 2nd-amendment rights restored. IIRC, Spiro Agnew applied to that program in the late 70's. Just like there are many State programs to restore felons' voting rights. Big difference, though, voting isn't a 'natural right.'
That program was defunded by Congress during Clinton's presidency. The Federal courts will not accept motions to reinstate these rights in an effort to circumvent the defunded program.
[DK: The main 19th century test was "civilized warfare" weapons were ok; that is rifles, swords, etc., but not bowie knives, or other weapons associated with brawlers. In this article, I suggest updating the test to encompass ordinary police equipment (e.g., rifles, shotguns, handguns); this test would leave out nuclear weapons, etc. http://davekopel.com/2A/LawRev/19thcentury.htm.
See also "Day Dream Believers" (July 30, 2002), in which we suggested that gun-control-exemptions for police should be eliminated.
Since the police do not possess nuclear weapons, I don't see a problem with prohibiting private possession of nuclear weapons. However, something is seriously wrong when politicians want to ban semi-automatic rifles because "they're only useful for mass murderers," and then exempt the police from such restrictions.
Such an amendment may or may not affect a military dictatorship, but it would serve as a measure of protection against a Police State.
OT, but could you elaborate? Seven hundred kills by snipers, in the context of Stalingrad, hardly seem significant.
This is a topic that I have long argued with my deeply pro-2nd A. friends. If a felon "does his time" completely, no probation, no contact with the penal system at all, then he should have ALL his rights back.
The example that Clayton gives us here still has the man under the thumb of probation which means in many areas he still has to answer to the state, and he does have some of his rights proscribed. But what about five minutes AFTER probation ends?
Which right is not given to felons who are done with the system. The govt can't force them to testify against themselves... the govt can't wiretap them without a warrant... the govt can't barrack soldiers in their homes. Why are some rights, primarily the 2nd, more disposable than others?
Now, I have no problem with the state making every violent felony sentence a lifetime sentence, with it made clear upfront that some of it may be served outside the prison walls after that portion of the penalty is complete. If the person is still subject to the penal system, then I can see the 2nd A rights being modified. But it should be clearly stated that he is embarking on a lifetime sentence of punishment.
Under the Gun Control Act of '68 you could only buy long guns in contiguous states, and only if the buyer's state specifically allowed it. (About 30 states still have obsolete laws on the books to do so.)
Since the Firearms Owners' Protection Act of 1986, you can buy a long gun from a licensed dealer in any state, as long as the transaction complies with the laws of both the buyer's and the dealer's states.
Congressman Phil Gingrey (R-Ga.) introduced a bill in this past Congress to allow interstate sales of handguns, under the same conditions.
I simply named two of the many Soviet snipers at Stalingrad (which included women), and as a parenthetic remark, I gave their war totals of kills to give some idea of the performance of a top sniper.
According to Wikipedia Soviet snipers killed 40,000 Germans in WWII. Eyeballing Soviet kill data for top Soviet snipers it looks like 300 is a good number. If we assume these are “3-sigma” shooters and the kill-number is Poisson distributed then, I get about 240 as the average Soviet sniper kill for the whole war. Vasiliy Zaitsev had a total of 400 kills with 150 at Stalingrad. Lets assume they got half their war total at Stalingrad or about a 100. If they had only a 100 average snipers at Stalingrad, then they would have killed 10,000 Germans there with sniper fire there. Very approximate, but it gives a conservative estimate.
In my view the 2nd Amendment will probably either be enforced poltically or not at all - judical rulings are neither a necessary nor sufficient condition to secure rights.
Kevin
Mr. Cramer's reply was that judges don't always follow the constitution, but I'm not aware of any instance where a judge has ruled on this. So, I'm still confused. (If there is such an opinion, I'd like to read it.)
I can appreciate that a legislature can make laws on what happens within the state. Therefore they could say that a resident who purchased an assault rifle out of state could not bring it back. But it seems to me that the federal law is out of bounds since it distinguishes between what is legal for a resident of, say, Pennsylvania, to do in Pennsylvania and legal for a resident of New Jersey to do in Pennsylvania.
Are there any other instances of a federal law having this effect of constraining out of state activities? I'm no contitutional scholar --just a confused citizen-- so there may be something important that I'm missing here.
There might not be. You want to be a test case?
Perhaps I am being naive, but I can't think of any obvious examples of 'non-small' arms in a 1789 context.
Thanks.
English common law held that the right to bear arms was universal, but like most rights it had an outer limit. This limit included what were then termed 'Infernal Devices'.
At a certain level of destructive power, the danger to bystanders becomes too great, and in the conflict between their right to 'Life and Liberty' and your right to 'Keep and Bear Arms' a line is crossed. This is true of all Rights, including freedoms of Speech (Libel/Slander laws), Assembly (permits for large groups required in public spaces), Religion (Human sacrifice is not ok, Peyote is), etc.
It's part of the Judiciary's function to strike this balance as best it can.
John
> the govt can't wiretap them without a warrant...
On the contrary, see the Supreme Court's recent case, Samson v. California. A state can condition a felon's release on anything, including parolee status for life, and parolee status can include "consent" to suspicionless searches. The problem with your analysis is that you assume there is some fixed debt to society that can be repaid so that one is eventually free and clear. But the state gets to decide that equasion, and can decide that having comitted a particular type of crime, your debt is never repaid, because even if the immediate punishment is complete, we now know that you are a wife-beater or a child molester, or whatever, and we now have to keep an eye on you, so you don't get guns, we don't trust you to vote or hold security clearances, and we will search your ass whenever we feel like it.
And aren't felons who have done their time (including restitution &parole) still prohibited from consorting with other known criminals?
I have not heard of it happening yet, but I can easily imagine a firearms owner becoming the subject of a restraining order and before he learns of this, he's arrested for violating it because of his possession of a firearm. "Mr. X, your wife and the county prosecutor have filed an order of protection against you, which the court has granted." "Thank you, officer." "Mr. X, you have a concealed carry permit. Do you have a handgun on your person?" "Yes." "You're under arrest for violating that order of protection."
United States vs Miller
One would assume a nuclear weapon to fall in the same catagory. An army where every soldier had a nuclear weapon wouldn't work.
I'm not keen on restoring either voting or firearms rights to violent felons, but there is some logic to what you say. Voting rights and the right to bear arms are linked because both are signifiers of citizenship. When free blacks lost the vote in American colonies, it was often the same year that they lost the right to own firearms. You can see something of this in Cooper and Worsham v. City of Savannah (Ga. 1848):
With regard to this:
I believe that this is very nearly the situation in USA v. Emerson (5th Cir. 2001).
(on the contrary, even back then short barreled long arms, especially shotguns, had military utility; even moreso today, look at the popularity of 10.5" and 11.5" barreled versions of the M16, not to mention the standard 14.5" M4)
Congress explicitly has the power to regulate 'interstate commerce' as it sees fit. The term (and the relevant clause) have been abused beyond belief for several decades now, but if you can come up with an example of how a resident of NJ buying something in Pennsylvania isn't interstate commerce- in the original sense, if you like- I'd be interested in hearing it.
The court may have been under a misapprehension of the specifics in Miller, but their ruling still provides guidance. It seems like a pretty reasonable line to take- militia members show up with an infantrymans weapons, not tanks, not WMDs. Like it or not, the court has construed the 2nd Amendment as intimately tied to the militia context, and that doesnt seem likely to be uncoupled any time soon. The fact that the Second hasnt been incorporated by now is simply absurd, not to mention untenable for anyone interest in logic or consistancy.
RPGs and the like are a good question though. I'd imagine the argument would go that since only designated troops carry heavy and light machine guns, mortars, and grenade launchers, it would be assumed that those weapons systems are equivalent to tanks etc and hence not a basic rifleman's personal weapons. Sawed-off shotguns might fall in this camp. It would still be hard to proscribe hand-grenades themselves in this context.
Therefore, the local government has no more authority to deny me a fundamental human right (effective self-defense against crime and tyranny) than does the state government, federal government, or Emperor Norton I. Local law ought to obtain, but no law ought to abridge fundamental human rights in an unjust fashion...and it doesn't get more unjust than the mayor of Cleveland trying to tell me I can't protect my family, while hiding behind the armored skirts of a phalanx of armed bodyguards paid from my taxes (back when I lived in Cleveland).
I voted for Marc Dann last month specifically because he was better on gunowners' rights than was Betty Montgomery. Bless him for being as good as his word.
Finally, the timing is amusing. I can't figure it as anything but the legislature laying a smackdown on Governor Emptysuit. Both governor-elect Ted Strickland and Ken Blackwell specifically pledged to sign HB347 during the campaign, though I suppose I don't quite trust Strickland on it, either.
This isn't "contrary" to what I was arguing, this is what I was arguing for (not that I want them to do so), but this is the only way that I can see a state legtimately keeping a person banned from certain rights. Make it clear upfront that it's a lifetime sentence no matter which portion you spend behind bars.
The concept of a "violent felon" is subject to abuse. In Massachusetts, prior conviction for "failure to report a hotel or motel fire" apparently makes one a violent felon, and is suffient cause to deny a firearms license in perpetuity.
I don't think that's what popular imagination has in mind when the term "violent felon" is tossed around.
Whence comes the proverb, "An armed society is a polite society."
Ohio needs to be a model for the way to combat terrorism.
Doug
The most powerful weapon of the day was an armed ship. The vast majority of armed ships were privately owned, if only due to the owners' reasonable interests in discouraging piracy. But these defensive weapons could also be used offensively. Hence the privateering commission and the Letter of Marque. These allowed the private armed ship to fire those guns at foreign nationals and others, and legally seize property, both afloat and ashore. Without the government paperwork (the commission or letter) these acts would be brigandage or piracy. But the paperwork had nothing to do with the weapons themselves, or their use in defense, which were apparently regarded as routine matters of ship operation and not fit for government regulation.
The US government in those days not only allowed these private armed ships, they counted on them to cause unbearable damage to both France (the Quasi-War of 1798-1800) and to England (the War of 1812). And they did so.
So, since the text of the 2nd Amendment says nothing at all about being limited to "small arms" - although of course it does reference "the militia" - it's not obvious that the authors of the 2nd had anything like our modern concept of "small arms" in mind.
Let me make your question less hypothetical.
I learned this morning from the Indiana Law Blog that the Indiana State Capitol is planning to ban guns, except for members of the legislature. At a hearing friday nobody spoke against it. I have email to try to find the address to submit comments. It's not the gun ban I object to so much as the metal detectors and searches.
I have filed suit and have a first hearing tomorrow in case about whether a person who doesn't want to be searched has a right to enter city hall to cast his provisional ballot.
I'm not trying to win on second amendment grounds. I don't even expect to win based on its being a suspicionless unwarranted search. My goal is to try to win by pointing out that the current searches are done in an arbitrary and capricious manner that is unreasonable.
I will probably lose the case, not because I'm wrong, but because I'm an inept lawyer and the taxpayer-funded lawyers I'm up against are pretty good. It's mostly a case about whether my client has to show a government-issued ID in order to vote.
If I can get the address to send comments to, I will plan to post it here.
I don't know whether the government can require us to insure our backyard nukes. Vinge's the Peace War is a fictional portrayal of the usefulness of the backyard nuke to the local militia. I don't know what the standard of review should be for the second amendment.
The bill is a victory for the second amendment,and not just gun rights, because it contains a legislative finding that the right is fundamental, applies in Ohio, and is enforceable with attorney's fees. That sort of legislation is well worth copying. No reason fundamental rights can't be protected by legislation and attorney's fees as well as other checks and balances.
English teacher: your question is reasonable one. The federal courts currently tend not to enforce the second amendment, so we tend not to bring such cases. The DC handgun ban case bears watching. Because congress has acted, we can't use a reverse commerce clause argument, which is the usual route to challenge not being able to do things in one state that you can do in another.
I would expand on this. The advantage of snipers is not how many soldiers they kill, but who they kill. In the mostly-conscripted armies of WWII, taking out a single sergeant or lieutenant would affect the combat effectiveness of at least 30-40 troops because the lower ranks usually did not have the training or authority to carry on alone.
The same conditions existed in Saddam's Army: No one under the rank of colonel had any real authority to do anything, so by killing the commanding officer of a unit, or even simply disrupting his communications an entire regiment, brigade or even division could be paralyzed for hours.
There is also a psychological effect on the other troops: Seeing your comrades drop suddenly from a sniper makes you keep your own head down. Instead of focusing on the mission, you're focusing on not getting shot. In Viet Nam, US Marine sniper Carlos Hathcock and his assistant kept an entire company pinned down in a rice paddy for two days by just picking off the commander and those few troops who got up and tried to run away.
Interesting stuff about snipers. Thanks.
"The bill also removes the requirement that concealed carry permitees must, when driving, keep the handgun in plain view in the car ... " So, if it's the notion of handguns out in sight of god and everybody that fills you with such dread, you should be turning handsprings of joy right now. (Please be sure to move the furniture out of the way -- safety first, you know).
Other examples: Letter from George Washington to President of the Convention of New Hampshire, Morristown, 1777 Jan. 23. “the Enemy” ... “will make themselves charters of our magazines of Stores, Arms &Artillery.” Letter from George Washington to Henry Knox, 1781 February 16, “Applications have been also made to the Court of France for a large supply of powder, arms, heavy cannon, and several other essential articles in your Department.” Letter from Henry Knox to George Washington 1782 March 10, “In my opinion we could spare some small Arms or [struck: small cannon] [inserted: field pieces]”. (The above are from the letters of George Washington.)
I emphasize this terminology was only generally the case. However, it did occur often enough that an argument can be made that the “arms” noted in the Second Amendment are, and are limited to, small arms, i.e. rifles, shotguns, pistols, knives, etc. Refer to the papers listed in footnote 167 of Halbrook for additional details.
Regarding the argument that pistols (i.e. handguns) should not be considered as “arms” because they allegedly were not used in the Revolutionary War, you can, as just one example, refer to our government's own site at: nps.gov which says “Cavalrymen and officers used pistols.”
I must also add that the Second Amendment does NOT reference “the militia”. The Second Amendment references “a ... militia”. This is consistently overlooked by those debating the meaning of the Second Amendment. “A” is the indefinite article, meaning something general, “the” is the definite article, meaning something specific. Grammatically speaking “the militia” is a subset of “A well regulated Militia” and people in “the militia” are drawn from “A well regulated Militia”. The distinction between “a” something and “the” something is not trivial. Refer to Blacks's Law Dictionary (6th ed. 1990) "In construing statute, definite article `the' particularizes the subject which it precedes and is word of limitation as opposed to indefinite or generalizing force `a' or `an'." There have also been several court rulings which discussed the difference between the indefinite article “a” and the definite article “the” and their implications in the interpretation of laws. If I can re-find those cases I will post a link.
“State” is used the same way, as something general. If you believe that “State” in the Second can only refer to a state of the US, erg. Virginia, Pennsylvania, etc. then does “State” in “foreign State” also only refer to a state of the US? The preamble to the Second is simply making a declarative comment that an armed populace is necessary to secure liberty (against foes both internal and external) in a state having political freedom. The Second Amendment is precisely what the preamble to the Bill of Rights says, declarative and restrictive clauses.