Constitutional Gun Laws?

[mack]

I once had someone ask me what gun laws would be constitutional. It was a good question, because most to the time I'm more invested in working against the unconstitutional gun laws the infringe our rights. After thinking about it for some time, I finally concluded that one controversial proposal advocated by the gun control lobby is actually constitutional, though I would vehemently oppose it's being adopted into law.

I hesitate to say it but here it is:


Firearm registration could be constitutional. I understand that such a requirement would probably lead to, and has mostly led to, attempts at confiscation. I would therefore oppose any such law, however hear me out. We are all part of the unorganized militia, (excluding minors, those in the organized militia, ect...), and the government therefore has a legitimate interest in seeing that the militia is well regulated, (able to appear if called armed and prepared to act in defense of their families, communities, and country. Therefore it would be reasonable and constitutional to require that all members of the militia provide documentation of the arms at their disposal which could be used in the service of the country and militia, as such documentation would allow the government to stockpile various calibers and rounds of ammunition, proportional to the arms possessed by the militia, for future distribution in a case where the militia was needed. It would also provide the ability to match arms and men and to organize if needed, in an emergency. Would our current government ever use registration for that purpose? No. Would our current government be more likely to use that information for confiscation. Yes. However, I still believe that registration could well be constitutional. And I believe that, as almost any arm could be of use to the militia, that basically all arms could be required to be registered. I don't really like that conclusion but it seems to me that it would pass constitutional muster as it would fit within the scope of the constitution and bill of rights.


What say you?

 

[boofus]

In a perfect world where you sign your name on the bill of sale when you buy the gun and it is stored away and nothing else happens it is perfectly constitutional. It's the same as having a deed to real estate you own, no one complains about that being unconstitutional.

But we don't live in a perfect world. There are leftwing scumbags that will abuse that power to confiscate or ban guns. There is only 1 group of weapons that has to be registered on the federal level-> NFA weapons. Even with the $200 transfer tax, federal background check, local law enforcement permission slip, 3-6 month waiting period, and the fact that only 1 registered MG was ever used in a crime in the past 70 years (by a cop) the liberals STILL pushed for a complete ban on Machineguns.

They banned registration of transferable MGs in 1986 creating a de facto ban on manufacture, transfer, sale, and possession for the general public. At the federal level registration has a 100% track record of leading to a complete ban.

Plus you got the registration-to-complete-ban fiasco that just happened in the Sodomy Capital of the World.

No thanks.

 

[Ian]

The whole point of the militia is/was that it is unaffiliated with the government. If the government wants to get involved with a military force, they have the Army/Navy/Air Force and the National Guard.

No gun control laws are Constitutional.

 

[El Tejon]

mack, the proper analogy lies in the First Amendment. Thus, laws against misuse (analogous to "fighting words") are legal--recklessness, intimidation, forms of murder or manslaughter or battery.

Registration is illegal. Supreme Court has held that government cannot maintain registry of newspapers. First Amendment is not "more special" than the Second (no hierarchy of rights as the Court has declared). Thus, government cannot maintain registry of firearms.

Time, manner, place legislation is legal (analogous again to First Amendment). No shooting at certain times or certain places. CCW licenses are legal just as parade permits have been held constitutional (but must be shall issue).

The militia argument is invalid as to registration. Supreme Court has held that a statement of purpose cannot limit a constitutional right (in your example registration for militia purposes). Thus the statement of purpose of the Second does not limit the right anymore than the statement of purpose in the First Amendment (analogous to landmark case of NAACP v. Alabama).

Treat the Second as the First and the power of the NRA in politics diminishes overnight and the Democrats go back to majority status.

 

[mack]

I agree with you that, given the state of our country and world that this would be one of the last things, I would want to see happen. Far from advocating it, I would vehemently oppose such a law. But I think it would be constitutional.

I just wanted to explore what gun laws are constitutional - given our right to keep and bear arms. I know that our rights are often abridged by unconstitutional laws that should be struck down, and that though they are abridged by such unconstitutional laws, they are still our rights, God goven inalienable, rights that our constitution merely recognizes, and that our government too often ignores and abuses. However, I think it is good that we understand our rights and our constitution and bill of rights, and to that end, especially when engaging gun control advocates, I think it is to the good that we fully grasp what is constitutional and what is not. What does one say to an gun control advocate or uninformed fence sitter, if they challenge you to articulate your position. If they say in so many words, "well you gun nuts don't accept that any gun law is valid because you just categorically/automatically reject all gun laws without thought, you're just as thoughtless, rigid, and biased, as you accuse gun control advocates of being." I might acknowledge that registration could be legal within certain bounds, though I would argue that it would not be of practical use, that it would be a perversion of it to use it as "gun control," that it would invariably be used as tool of gun control to eventually confiscate guns, and that I would therefore be unalterably opposed to it.

 

[mack]

El Tejon - good post - let me think about it - posted my second post in response to boofus before I saw or read your and Ian's posts.

 

[1911 guy]

No such thing

The founders knew a militia (not military) was needed to sustain a free state or nation. They said "the right of the people to keep and bear arms shall not be infringed". Exactly how is that open to interperetation? As soon as a law is passed that in any way infringes your right, the Constitution is on your side. However, we now have a politbureau that sees things differently and prosecutes and convicts based on illegal laws. By the way, the militia is the thing that's supposed to stop them. So if they de-fang the militia...

 

[El Tejon]

mack, I fail to see how registration could be constitutional. On what basis do you come to that conclusion (Second recieves some sort of lesser scrutiny--rational basis test?) Just asking.

mack, regarding your question by the fence-sitters/antis, the odd thing is if you follow the Supreme Court's decision in Miller, then Ian is correct and NO gun laws could be constitutional. Miller is a strict scrutiny plus/absolute scrutiny world which is weaponcentric.

Miller's test: Does this weapon have a military use? If yes, then it is constitutionally protected and the gun law is invalid.

 

[geekWithA.45]

What would be constitutional?

Anything that didn't actually INFRINGE, or threaten to INFRINGE on the right to BOTH keep and bear arms.

If we turned the tables on the Miller "reasonably related to the militia" ruling, we might assert that such laws must be held "reasonably related to the efficacy of preserving the militia". (or whatever the exact phrase was)

All in all, there's probably a few things they might legitimately regulate, but regulate means "to make regular". It does not mean "to prohibit with legislation bearing the word regulation in the title".

 

[HonorsDaddy]

Miller's test: Does this weapon have a military use? If yes, then it is constitutionally protected and the gun law is invalid.

That being the case, can you tell me how on earth the NFA could still apply to full auto firearms?

Not disagreeing with you - just looking for the justification used by the federal government.

 

[Aguila Blanca]

We are all part of the unorganized militia, (excluding minors, those in the organized militia, ect...), and the government therefore has a legitimate interest in seeing that the militia is well regulated, (able to appear if called armed and prepared to act in defense of their families, communities, and country. Therefore it would be reasonable and constitutional to require that all members of the militia provide documentation of the arms at their disposal which could be used in the service of the country and militia, as such documentation would allow the government to stockpile various calibers and rounds of ammunition, proportional to the arms possessed by the militia, for future distribution in a case where the militia was needed.

I think it would make more sense to require all people of militia age to be required to purchase the "standard" military weapon of choice. Today that would be an M16 or an M4 carbine, and to require that each militia member maintain a stock of not less than 'X' rounds for said weapon. In colonial times, members of the militia were required to attend muster, I think twice per year. The main purpose was to show that they had the prescribed number of lead balls and sufficient powder and flints to fire same.

So if the gummint wants me to prove I own "the" militia rifle and 500 rounds of ammo for it, I'd go along with that. I'll show up on the village green every 4th of July and wave it in their faces. But they aren't entitled to write down the serial number, and it's none of their business if I own one, one hundred, or one thousand guns of any description beyond that mandatory milita rifle.

That's my thought on your idea. No registries, no inventories.

Think Switzerland.

 

[El Tejon]

HD, justification? Because they are the government and have agents, guns and prison and you are not the government.

The SSA is predicated upon the Big Hammer of Unlimited Government: the Commerce Clause.

Remember, Miller involved a short-barreled shotgun, not a machine gun. At the Supreme Court level ONLY the government's case was presented! The Court never heard how short-barreld shotguns were used in militree service. If Jack Miller had a machine gun it would have been within judicial notice that machine guns are used in the military and thus the NFA would be held unconstitutional.

 

[Sam]

What part of "shall not be infringed" don't you understand?

Sam

 

[Jeeper]

I think that background checks would be held constitutional by even the most ardent pro-2nd judge.

You have to look at the legal test that the court has established. If the "right to bear arms" is found to be fundamental then any law that affects that right would have to meet strict scrutiny assuming that some other test isnt established. That test then is whether there is a compelling government interest and whether the law is narrowly tailored. Keeping guns out of the hands of criminals is definitely compelling and background checks are very arguably narrowly tailored. Even if you look at the history the militia was supposed to be made up of "law abiding men". I don't see that background checks would ever be found unconstitutional even with the most pro-gun justice.

 

[HonorsDaddy]

I think that background checks would be held constitutional by even the most ardent pro-2nd judge.

You have to look at the legal test that the court has established. If the "right to bear arms" is found to be fundamental then any law that affects that right would have to meet strict scrutiny assuming that some other test isnt established. That test then is whether there is a compelling government interest and whether the law is narrowly tailored. Keeping guns out of the hands of criminals is definitely compelling and background checks are very arguably narrowly tailored. Even if you look at the history the militia was supposed to be made up of "law abiding men". I don't see that background checks would ever be found unconstitutional even with the most pro-gun justice.

That line of reasoning is toxic to say the least.

The government has a "compelling state interest" to insure tha the populace cannot rise up and put it out of a job - the very reason for the existence of the 2nd Amendment. By your justification, we could all be disarmed by the citation of "compelling government interest".

 

[Jeeper]

I don't see where you are making any sort of legal argument. The strict scrutiny test has been applied to many parts of the law and all fundamental rights. Th government only argues what the compelling interest is. The court then must decide if it is so. Of course if you are saying that system isn't correct then you disagree with the premise behind our constitution.

 

[bjbarron]

While I am a hard-core 2nd supporter, I realize we live in the real world.

The 1st Amendment right to free speech does not allow you to yell 'fire' in a crowded theater....that is only common sense.

Accordingly, I have no problem with limiting the 2nd to keep guns out of the hands of the mentally disabled and felons (although I might allow felons to own guns after a lengthy probation period - say 20 years).

Other than that, there is nothing that could be construed as either as constitutional or as common sense. All gun restrictions, other than those I mentioned, would be unconstitutional. And remember, the 2nd was meant to allow citizens to own military grade weapons.

The only other restriction I might entertain is some kind of classes/testing requirment for an 'unlimited' access to all higher end military grade weapons....heavy machine guns thru artillery. All other guns should be available at your local 7-11 with proof of citizenship.

Oh, well, I can dream.

 

[Aguila Blanca]

I think that background checks would be held constitutional by even the most ardent pro-2nd judge.

You have to look at the legal test that the court has established. If the "right to bear arms" is found to be fundamental then any law that affects that right would have to meet strict scrutiny assuming that some other test isnt established. That test then is whether there is a compelling government interest and whether the law is narrowly tailored. Keeping guns out of the hands of criminals is definitely compelling and background checks are very arguably narrowly tailored. Even if you look at the history the militia was supposed to be made up of "law abiding men". I don't see that background checks would ever be found unconstitutional even with the most pro-gun justice.

Sorry. ANY law that keeps guns out of anybody's hands is an "infringement." The 2nd Amendment does not include any disclaimer subjecting it to any "compelling interest." Want to keep guns away from criminals? Keep criminals away from guns. Put 'em in prison. IMHO, and the way the system was explained in social studies class back when I was in high school, when a "criminal" is released from prison, he is supposed to be a "free man." At that point, he (or she) has "paid his debt to society" and is not a criminal any longer ... unless and until he/she commits another crime.

 

[Aguila Blanca]

And remember, the 2nd was ment to allow citizens to own military grade weapons.

I must be suffering Alzheimer's. I can't remember where the 2nd Amendment says anything about "military grade weapons." Refresh my memory, please, and post up where it says that for us.

 

[pax]

The 1st Amendment right to free speech does not allow you to yell 'fire' in a crowded theater....that is only common sense.

Accordingly, I have no problem with limiting the 2nd to keep guns out of the hands of the mentally disabled and felons (although I might allow felons to own guns after a lengthy probation period - say 20 years).

bjbarron,

As you say, the 1st Amendment right to free speech does not allow you to misuse that speech -- for example to intimidate or threaten or to cause actual harm to other people (such as your example of yelling "fire" in a crowded theater).

But your second paragraph does not logically follow that outline, because the 1st Amendment right to free speech certainly does not prohibit certain classes of people from speaking. The government may not tell some folks not to talk simply because such people might, in the future, misuse that right -- even if they have done so in the past. Yelling "fire" in a crowded theater might result in jail time, but it could not legally result in 20 years (or a lifetime) of being forbidden to talk.

What would follow logically from your first paragraph would be that the 2nd Amendment could allow laws against misusing arms -- against using weapons to intimidate, threaten, or cause actual harm to other people.

pax

 

[Mr. James]

bjbarron,

Have you any idea how many activities have been defined as "felonies" by the assorted and sundry .govs? I submit to you, an honest man is hard put to live his life without committing some felony every day in this present age.

Perhaps if you qualified "felon" with "violent," the argument might - might - be more persuasive.

 

[HonorsDaddy]

I don't see where you are making any sort of legal argument. The strict scrutiny test has been applied to many parts of the law and all fundamental rights. Th government only argues what the compelling interest is. The court then must decide if it is so. Of course if you are saying that system isn't correct then you disagree with the premise behind our constitution.

No argument used to justify gun control has ever been legal. Are you seriously suggesting that it is impossible to believe someone may well try that argument in court one day?

I fail to see anywhere in the Constitution and the 2nd Amendment where the restriction of a right is allowed if a compelling state interest can be shown. That my friend is a legal fiction created by a rogue justice at some point. Dont remember the case - perhaps one of our esteemed barristers here could locate it for me.

Additionally, you may have noticed the "...shall not be infringed." part. In legal terms, if i am not mistaken, there is no stronger language which could be used to impart the message that the right to keep and bear arms is something from which the government should keep its grubby paws away.

 

[HonorsDaddy]

While I am a hard-core 2nd supporter, I realize we live in the real world.

I cannot believe i'm having this argument with someone on a GUN board. OK...point by point...

The 1st Amendment right to free speech does not allow you to yell 'fire' in a crowded theater....that is only common sense.

It most certainly DOES allow it. It also requires that you use responsibility to only do it when appropriate. If you were to do that and there is no fire, then you are infringing upon the rights of others and putting people at risk.

Further, you will note there is no prior restriction on your speech is there? To make the analogy accurate, you would have to compare it to a license or background check to speak, otherwise you would be gagged in public.

Accordingly, I have no problem with limiting the 2nd to keep guns out of the hands of the mentally disabled and felons (although I might allow felons to own guns after a lengthy probation period - say 20 years).

I do. If you're too violent to have your rights 100% restored upon leaving jail, then you should be kept locked up.

The mentally disabled arent really an issue though are they? Those who are TRULY a risk are rarely, if ever, able to find their way to the gun store by themselves. That argument has always been a red herring.

Other than that, there is nothing that could be construed as either as constitutional or as common sense.

Actually none of what you suggested is Constitutional.

All gun restrictions, other than those I mentioned, would be unconstitutional.

ALL of those are unconstituional.

And remember, the 2nd was meant to allow citizens to own military grade weapons.

No kidding? Really? Thanks Professor. I must have missed that part. Did you also notice that it was meant to allow us to own whatever else we pleased in the way of weapons?

There is no military grade requirement. ALL weapons are "military grade" when it comes right down to it - even a club.

The only other restriction I might entertain is some kind of classes/testing requirment for an 'unlimited' access to all higher end military grade weapons....heavy machine guns thru artillery. All other guns should be available at your local 7-11 with proof of citizenship.

WHY? Give me one good reason.

Oh, well, I can dream.

And i can dream that this nation wasnt soiled with the likes of you. It will work just as well.

Your kind of gun owner disgusts me. You dont mind restrictions as long as they dont affect you and what you want to own.

At least the anti's are honest about it.

You arent a "hard-core 2nd supporter". You're a hard-core "Ive got mine, i dont care if you get yours" supporter. YOU sir, are the problem.

 

[Fletchette]

Vermont had a proposal a few years back...

Someone actually proposed taxing those who didn't own a gun, as the Vermont state Constitution defines gun ownership as a duty as well as a right.

I think taxing would be unConstituional, as it would necessitate knowing who has a gun in order to know who doesn't have a gun. However, ticketing someone for not having a gun might be Constitutional...

In practical terms it wouldn't work as you would be ticketing poor people for not buying something...

 

[HonorsDaddy]

Someone actually proposed taxing those who didn't own a gun, as the Vermont state Constitution defines gun ownership as a duty as well as a right.

I think taxing would be unConstituional, as it would necessitate knowing who has a gun in order to know who doesn't have a gun. However, ticketing someone for not having a gun might be Constitutional...

In practical terms it wouldn't work as you would be ticketing poor people for not buying something...

So make an exception for financial hardship - or better yet - GIVE them firearms which the police are done with as long as they show a financial need.

I think its an excellent idea.