Is the AWB constitutional in your opinion?

[Michigander]

Wildalaska, in the "why cops get a bad rap" thread at the Rountable, indicated that he believes that the AWB is constitutional.

What say you?


Sorry people,
I worded the title differently than the poll question. It's corrected.

[Barbara]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It infringes on my right to bear arms.

[Rebeldon]

The very purpose of the Second Amendment is to insure that the people are armed with weapons that primarily have a military purpose, for the "security of a free state".

But the Second Amendment does not say that the "right to keep and bear arms" is contingent upon the "militia, being necessary to the security of a free state." It recognizes that the right to keep and bear arms exists, and should not be infringed because it is necessary for the security of a free states.

It carefully does not say, "A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall be granted." It says "...shall not be infringed."

What the Bill of Rights didn't do is create rights. The rights already exist. I remember when I was in high school, our teacher asked, "What rights does the Bill of Rights give us?" We all thought we had given him a very comprehensive list of all the rights mentioned in the Bill of Rights and then he said we were all wrong, because the Bill of Rights doesn't give us any rights. The purpose of the Bill of Rights was to restrict government from infringing upon our rights. It's about what the government can't do, not what we can do.

[Foreign Devil]

The title of your thread is "is the AWB unconstitutional" while the question in your poll is "is the AWB constitutional". That might throw some people off here.

[Bill St. Clair]

The AWB is unconstitutional. The Brady Bill is unconstitutional. The 1968 Firearms Act is unconstitutional. The National Firearms Act (NFA) is unconstitutional. Every law requiring a permit or a license to carry openly or concealed is unconstitutional. Every law requiring a firearms owner ID is unconstitutional. Every law requiring registration of handguns is unconstitutional. Every law forbidding the carrying of a loaded firearm readily accessible to a passenger in a motor vehicle is unconstitutional. And every legislator who ever voted for such a law and every cop who ever enforced one is guilty of treason and should be hanged (after due process and a speedy trial, of course).

[Nightfall]

The title of your thread is "is the AWB unconstitutional" while the question in your poll is "is the AWB constitutional". That might throw some people off here.

It got me. By lack of attention to detail, I voted that the AWB is constitutional. I was wondering why THR of all places was voting that the AWB was constitutional!

[Michigander]

Moderator(s), please close this thread or edit the poll to start over again.

In the title I asked if the AWB was unconstitutional, but in the poll question I asked if the AWB was constitutional.

My bad. Sorry.

Here's Prof. Eugene Volokh, speculating (from a while back) about how the Supremes might consider Silveira

The trouble is that, even if there are five votes for finding that the Second Amendment secures an individual right, I highly doubt that there'll be that many votes for finding that assault weapons bans violate this right. This is because assault weapons are actually not materially different from other semiautomatic weapons; they are neither materially more harmful, nor are they materially more beneficial. If you can't own an assault weapon, you can still buy another weapon that's just as dangerous, and also just as effective. So I think this makes assault weapons bans pointless -- but it also makes them not very burdensome.

My guess is that at least some of the Justices who might be inclined to take an individual rights view of the Second Amendment would also be willing to give the government a lot of room to regulate gun ownership, so long as the government doesn't ban guns. Their view would be "Whether or not we find an individual right, the assault weapons ban is a permissible regulation, because it's not very burdensome." (Think of this as the "substantial burden" test from the right to abortion, the right to marry, the pre-Employment Division v. Smith Free Exercise Clause cases, and some other fields, as applied to the right to bear arms.) So on the one hand they might find it appealing to grant certiorari, hear the case, and decide in favor of the individual right while reaffirming that the individual right position still leaves the government considerable power. But on the other hand, they may be reluctant to decide the theoretical question (individual right vs. collective right) when nothing ends up really riding on the subject;

Not burdensome enough to be an infringement. Interesting argument.

[Wildalaska]

On a strict constitutional law basis, Volokh makes an excellent point.... one that is shared by such luminaries as myself. Reference my point in the cops thread...

Keep in mind that it is stupid. It is useless. I dont like it. Its a silly excersize in liberal touchy feely legislative masturbation...feels good but ya really want the real thing (complete ban)...

Keep in mind that the assault weapons ban bans nothing except cosmetic features...witness the caterwauling of the gun banners....

Analyze it outside emotions

WildvotedyesitsconstitutionalAlaska

[Wildalaska]

And every legislator who ever voted for such a law and every cop who ever enforced one is guilty of treason and should be hanged (after due process and a speedy trial, of course).

O god here we go again...out of the woodwork...

WildimwaitingtogetputupagainstthewallAlaska

[Brasso]

I agree, and I'm a cop. Sorry, but if you can show me that any ban on arms is not contrary to the 2nd I'm listening?

[madcowburger]

Of course it's not constitutional, but it doesn't matter at all, because we're not living under constitutional government or the rule of law anymore. The Constitution -- supposedly the supreme law of the land -- is for all practical purposes a dead letter, of no more than antiquarian interest. And the only law of the land anymore is gun law, pure and simple. (The IRS has a SWAT team.)

Nobody would fight for the Constitution, so now it's dead. No one will fight for anything except maybe their good-payin' union jobs. The few pathetic rags of freedom we retain will be stripped from us one by one, and no one will fight as long as they can watch soap operas and "reality" shows on their giant flat-screen TVs, and drive to sports events in their new cars. Ah, who am I kidding? They wouldn't fight even if those things were to be taken away from them.

MCB

[cropcirclewalker]

Bill St Clair said:

The AWB is unconstitutional. The Brady Bill is unconstitutional. The 1968 Firearms Act is unconstitutional. The National Firearms Act (NFA) is unconstitutional. Every law requiring a permit or a license to carry openly or concealed is unconstitutional. Every law requiring a firearms owner ID is unconstitutional. Every law requiring registration of handguns is unconstitutional. Every law forbidding the carrying of a loaded firearm readily accessible to a passenger in a motor vehicle is unconstitutional. And every legislator who ever voted for such a law and every cop who ever enforced one is guilty of treason and should be hanged (after due process and a speedy trial, of course).

He is right.

WildI'llAskHer is wrong.

[Telperion]

Wildalaska,

Have you read Dave Kopel's analysis of the AWB, which looks at it only from the standpoint of the rational basis test?

I'm very curious what a luminary like you thinks about it.

[cordex]

If you accept the government of ... oh ... the past eighty years or so as constitutional, yes the AWB is constitutional.

Is it right? No.
Is it moral? No.
Is it logical? No.
Is it a product of a healthy government or society? No.

Is it in line with the direction the government has been heading for longer than most of us have been alive? Entirely.

[Jac]

Banning the importation, sale, purchase or possesion of any weapon is unconstitutional... regardless of the reason given for said ban. Even if that reason is "cosmetic" in nature.

O god here we go again...out of the woodwork...

What?...

Attempting (or succeding) to revoke someone's rights by force is illegal; by legislation, it is treason. Either of which deserves death... preferbly a sentence that is executed by the (intended) victim(s).

[Molon Labe]

All gun control laws are unconstitutional.

Even more important, all gun control laws are contrary to Natural Law...

[Michigander]

O god here we go again...out of the woodwork...

WildimwaitingtogetputupagainstthewallAlaska

Wildalaska, you and I differ on a couple of issues, albeit very important ones.

But did I ever tell you that I really like your style?

ROFLMBO!!!

[Michigander]

You know, until it came up when we were all peacefully sitting at the Roundtable having a gentlemenly discussion () about cops getting the short end all the time, I assumed everyone here at THR (asside from the trolls and some newbies who may be lost) knew that the AWB was completely, indisputably unconstitutional.


This is totally un_______believable to me! I am shocked! Dumbfounded!

I guess we are not all on the same side. (?)

(as I repeat to myself, "NEVER ASSUME, NEVER ASSUME, NEVER ASSUME...")

[Wildalaska]

I'm very curious what a luminary like you thinks about it

Thats for the compliment

I have read Koppels treatise and I find it very persuasive, especially as it relates to State Laws...

I do think that ultimatley, the Court will be forced to lolk at GC measures by way of strict scrutiny since I am convinced that the Court will ultimately incorp the 2nd via the 14th...

Be that as it may Koppel skirts I think the major issue, that is, the AWB (Federal wise)...doesnt ban guns..it proscribes features. I can still buy an AR 15, an AK 47, a Tec 9, a Fal...cosmetically it may be different, but essentially its the same weapon...

Analogy...the First Amendment...and maybe a little loose..The publishers of my fav magazine....German Latex Hard Core Scat Babes could be going to jail...thats assault 1st amendment lit... but the publisher of Lady Chatterly's Lover isnt..it has reeedeming social value...the assault features are taken off...

See what I mean

WildthepornpolicearhereAlaska

[Wildalaska]

Attempting (or succeding) to revoke someone's rights by force is illegal; by legislation, it is treason. Either of which deserves death... preferbly a sentence that is executed by the (intended) victim(s).

Ahhhhhhhhhhhhhh help help another one...o my god Im going over to Stormfront where its safe....

WildnightynightAlaska

[Ellery Holt]

Wildalaska writes:
...one that is shared by such luminaries as myself.

Oh geez...



somebodyiswaytoofullofhimself

[Bill St. Clair]

I, too, like Wildalaska's style, and would probably enjoy a trip to the range with him. He and I differ, and correct me sir if I'm misremembering an earlier discussion, in that he believes that no law is unconstitutional until the courts rule it so. I, on the other hand, believe that an unconstitutional law is null and void from the minute it is signed by the president or governor, that it is the duty of a true patriot to disobey that law, with extreme prejudice if necessary, and the duty of a police officer to honor his oath by refusing to enforce any unconstitional law.

I find it hard to believe how anyone can misinterpret "shall not be infringed". It's the strongest language in the Constitution. ANY regulation of any kind is an infringement.

But, unless patriots support and defend it, with their lives when necessary, a constitution is only a piece of paper, toilet paper if the state is allowed to have its way.

[Foreign Devil]

I think it is onerous enough to be unconstitutional.

It completely bans combinations of features that you would expect to find on modern military weapons. Flash hiders are marginally useful for keeping your night vision. Collapsing stocks are used on some military/police guns. Bayonet mounts can attach other devices like flashlights. These are the features that are found on militia(light infantry) weapons, the very kind of weapons the founders wanted the people to be armed with.

Maybe a registration system would not be unconstitutional(I don't support that either btw). Or a safe storage law. But an outright prohibition? That crosses the line.

Of course it doesn't matter what I think. If the court rules constitutional a law that makes everything above a .22 is illegal than for all intents and purposes it is constitutional.

[Augustwest]

How long, I wonder, until lands and grooves are viewed as "features" in the eyes of our friends in Washington?

When blunderbusses are outlawed, only outlaws will have blunderbusses!

Considering the impetus of Amendment II (the people's right to a defense against tyranny), military-style arms would seem to me the ones that would be most protected.

Kinda Milleresque of me, eh?