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Why do people assume Congress CAN ban Arms?They can't!

Discussion in 'General Gun Discussions' started by joeschmoe, Jan 6, 2013.

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  1. joeschmoe

    joeschmoe Well-Known Member

    Why do people assume Congress CAN ban Arms? They can't!

    Have most Americans never read the Constitution? Both sides of this debate seem to assume not only that Congress can, but will, or that they already have banned our right to arms. Congress does not have the power to outlaw our right to arms. Not even close.
    First, on a good day Congress can't agree on the simplest things. This last Congress agreed on less than any previous modern Congress. Abolish a fundamental right? No.
    Second, even if they did agree on sweeping gun control (which I doubt), it still must over come legal challenge. Heller and Miller are not going to be easy for the gun banners to get around. Feinstein can dream and hope all she wants, but she's not a king and can't outlaw Arms. It will be struck down as unConstitutional.
    Third, anything done by this Congress can be undone by the next Congress. The first "AWB" caused them to lose control of Congress, and second would probably do the same. Eventually, there will be an opposition party in control. No party has controlled Congress for more than a few years.

    A Constitutional Amendment to change the 2nd is such a fantasy that no one in Congress/WH has even suggested it.
    The Government is not an all powerfull god/king that can rule and outlaw anything it wants. This is a government of specifically enumerated powers. Despite what the tinfoil crowd may claim, this is still a government of laws.

    If I hear one more person mention gun confiscation by Executive Orders I'm going to stuff a copy of the Constitution in thier mouth and choke them with the Supreme Court decisions which limited the Presidents EO's. (i.e. US v Nixon)

    The sky is not falling. Stop acting like Chicken Little.

    I will remind everyone that the first so-called AWB did not ban the Bushmaster XM15's that have been in the news so much. They couldn't. They didn't, and Congress can't.
    Last edited: Jan 6, 2013
  2. TennJed

    TennJed Well-Known Member

    Because the constitution warns us that they might try. The reason the 2nd amendment is there is because our forefathers were smart enough to realize we the people might need to be very cautious of our leaders. We need to take this serious
  3. Onmilo

    Onmilo Well-Known Member

    You're right, to an extent.
    What they can do is widen the scope of the National Firearms Act making any guns they so desire as listed restricted.
    That means a whole bunch of unnecessary paperwork and hassle just to own your treasured 10/22 Ruger.

    Think this is all a big joke that will go away without the word of The People being heard loud and clear you are living in a pipe dream.

    Oh, that 94 gun ban made ALL kinds of weapons go away, permanently.
    ALL kinds of foreign made "Assault Type" weapons WERE banned and have NEVER been allowed back into the country since.
  4. Zardaia

    Zardaia Well-Known Member

    Since when does the constitution stop congress? If they can get the votes then they'll do it. By the time it gets around to the supreme court it will have already done it's damage. Considering how close the last gc decision was even the court isn't gonna stop it once obama gets another justice or two. There are greatly differing opinions on what the 2A means. As for enumerated powers, well I agree, but our founding fathers would already deteste how powerful the fed has become. They find more and more ways to grab the power and to hell with states rights. Write your reps and senators folks, hopefully they'll listen!
  5. joeschmoe

    joeschmoe Well-Known Member

    Incrementalism is the biggest danger. A little here, a little there, over time will add up.
    But I'm sick of hearing all this talk about "ban", "confiscation", etc.

    Everyone is falling for these scare tactics so that you will accept a little restriction "Geez, it could have been worse, they were trying to ban all semi's"

    There is no right to hunt, no right to sport, no right to "tradition" or "collecting". Only "Arms" are protected. They are protected, and repeatedly upheld by the SCOTUS.
  6. gbran

    gbran Well-Known Member

    While SCOTUS has set some important precident thru Miller and McDonald, they have left open reasonable regulation of firearms without defining any specific limits. Congress will push gun control to the limit and SCOTUS will have to decide on a case by case basis whether limits have been crossed.
  7. joeschmoe

    joeschmoe Well-Known Member

    SCOTUS has already ruled that an outright ban of an entire class of popular weapons was unConstitutional. So are trigger locks, etc. Self defense, Arms, and weapons for Militia use have already been upheld and clearly explained.

    Congress can outlaw cloudy days if they want to. That doesn't make it so.

    All 9 SCOTUS justices agreed that the right to arms is a fundamental right. The SCOTUS is not in the habbit of overturning itself. They are bound by prior decisions. It will not "sway" because a justice or two dies.
    All of this panicing and hand wringing makes us look stupid.
  8. TennJed

    TennJed Well-Known Member

    Wasn't the ruling about banning SEF DEFENSE weapons, not popular ones? That is a big difference
  9. 22-rimfire

    22-rimfire Well-Known Member

    They can regulate them and restrict their legal use. Kind of like switch blade knives in states where they are legal to own, but not use or carry....
  10. 3twelves

    3twelves member

    Well, there you have it. joechmoe says our govt. is straight as an arrow and nothing will happen...
  11. hso

    hso Moderator Staff Member

    You're kidding, right?

    The process is to pass a law and then go through the process of challenges that eventually get to the SCOTUS.

    In the time it takes to run through the process you can destroy the industry and practices that make firearms ownership practical. Whether it is overturned or not in the Supreme Court you can take long enough to make that difference

    The '94 ban didn't ban the XM15 because of features. In the proposed Feinstein AWB the characteristics to qualify as an AW are now narrowed to that of CA and tighter. The slack has been taken out of this revision of the AWB. Contemplate what a $5 AOW classification under the NFA actually means. Sure you can buy one, BUT you must register it, you must get your CLEO signature to file, you must then WAIT for months to get the approval for the tax to purchase your rifle. THEN there's the taxes and licensing that changes for WalMart, Gander, Academy to deal in NFA weapons. Then there's the taxes and licensing that changes for Distributors. Then there's the taxes and licensing that changes for Manufacturers. All of that adds up to a constriction in the supply chain so that your local LGS that doesn't already deal in NFA items has to decide to invest in being able to deal in the new class of NFA. Many manufacturers will decide they don't want to spend the time and money. Many distributors will decide they don't want to spend the time and money. Many retailers will decide they don't want to spend the time and money. Many people will decide they don't want to spend the time and money to own them thereby reducing the demand and the supply. Make no mistake that the Antis have not missed all the details and that they're planning to sugar coat the bitter pill that will poison ownership of these firearms.
    Last edited: Jan 6, 2013
  12. eldon519

    eldon519 Well-Known Member

    Underestimating your opponent usually doesn't help you to reach victory.
  13. joeschmoe

    joeschmoe Well-Known Member


    The Supreme Court held:[43]
    (1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53. (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22. (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28. (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30. (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32. (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47. (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54. (2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56. (3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
    The Opinion of the Court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.[44]

    [edit] Issues addressed by the majority

    The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

    The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings...."

    With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment – a purpose not previously articulated by the Court – and the "in common use at the time" prong of the Miller decision: since handguns are in common use, their ownership is protected.

    The Court applies as remedy that "[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with ... licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."

    In regard to the scope of the right, the Court wrote, in an obiter dictum, "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."[45]

    The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns: "It may be objected that if weapons that are most useful in military service – M16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home."[46]

    The Court did not address which level of judicial review should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." The Court states, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."[47] Also, regarding Justice Breyer's proposal of a "judge-empowering 'interest-balancing inquiry,'" the Court states, "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."[48]

  14. hso

    hso Moderator Staff Member

    wiki? Really?
  15. Alaska444

    Alaska444 member

    That was the process for the most part UNTIL Obama. He marches to his own drummer and thumbs his nose at the constitution on a regular basis. Remember, by law, they are supposed to pass a budget every year as well. That has not stopped Obama from doubling the debt during his term in office by 2016.
  16. joeschmoe

    joeschmoe Well-Known Member

    No. Congress, even feinstien, is not in the habit of picking fights with the SCOTUS. They didn't pass laws that violated the 2nd in the first AWB, because they knew they couldn't, and they won't try it in the new version.
    The goal is to scare you into allowing incremental changes that probably WILL pass SCOTUS challenge.

    Your fear is the goal. They are not trying to overcome the 2nd amendment. They KNOW they can't. They are trying to overcome the voting masses to allow incremental change. One step at a time.
    Scare you with "ban" and "confiscation", which would be struck down, but instead pass smaller changes which will withstand SCOTUS challenge.
    Scare you with massive "bans" so you will allow smaller changes. They CANNOT pass massive bans. They don't have the votes or the power and it would be overturned anyway.
  17. joeschmoe

    joeschmoe Well-Known Member

    Congress writes the budgets, not the President. They can write budgets for 2 years. Read the Constitution.
  18. joeschmoe

    joeschmoe Well-Known Member

    Yes. It's a good summary, with refrences. Do you have a source that says different or do you have an irratiational fear of wiki?
  19. Carpedium

    Carpedium Well-Known Member

    Very short sighted. Check out the NDAA. The constitution does not mean anything to these people.
  20. Alaska444

    Alaska444 member

    Which budget is it that they have passed my friend. Read the news.
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