Does 2nd Amendment Apply to EVERY Weapon?

[1911Tuner]

RDak...I believe that it was the intent of the framers of the Constitution for the people...the militia...to have access to anything that the military had. They understood the dangers of a large standing army, and the potential for abuse by governmental powers via the deployment of that standing army...so they invoked the final check and balance to that danger. They understood these things because they were well aquainted with Great Britain's use of a large standing army.

And Bushmaster...That was precisely why the 2nd Amendment was drafted. Not so that we could hunt and shoot at paper targets on pretty Sunday afternoons.

I also believe that the framers were fully aware that weapons design would evolve into something more than the smoothbore, flintlock musket. I don't think they had an inkling about thermonuclear devices that would level a large city...but pretty much anything else would be at least subject to debate.

 

[RDak]

Bushmaster, how do you feel about the very real possibility that we will have to live with these SCOTUS parameters:

1 - Military/militia use is ok, and

2 - Must be in common use?

The possible weakness I see is it might give a green light to prohibitions of future, more advanced, firearms?

 

[RDak]

RDak...I believe that it was the intent of the framers of the Constitution for the people...the militia...to have access to anything that the military had. They understood the dangers of a large standing army, and the potential for abuse by governmental powers via the deployment of that standing army...so they invoked the final check and balance to that danger. They understood these things because they were well aquainted with Great Britain's use of a large standing army.

And Bushmaster...That was precisely why the 2nd Amendment was drafted. Not so that we could hunt and shoot at paper targets on pretty Sunday afternoons.

I also believe that the framers were fully aware that weapons design would evolve into something more than the smoothbore, flintlock musket. I don't think they had an inkling about thermonuclear devices that would level a large city...but pretty much anything else would be at least subject to debate.

That's where I see the weakness in "common use", but I somewhat fear that is what we will have to live with IMHO.

There will be a judgment call on future developments IMHO. Although I guess I can live with that.

 

[divemedic]

Interesting. Don Kilmer (attorney who represents the Nordyke Plaintiffs) uses that same passage to argue exactly the opposite.... to wit that private ownership of such items required special governmental permission.

I hadn't read that. Look, he has it backwards. The letter of Marque is intended to prevent a privateer from being labeled a pirate, which is punishable by death. The cannon was owned, and the ship outfitted, before the letter was granted.

The letter of Marque was a license, but not to OWN the privateer and its weapons, it was a license to seize the merchant shipping of a particular nation.

For example, click here to read a Letter of Marque issued by the United States in the year 1812 (signed by President James Madison) to Captain Millin:

BE IT KNOWN, That in pursuance of an act of congress, passed on the 26th day of June one thousand eight hundred and twelve, I have Commissioned, and by these presents do commission, the private armed Brig called the Prince Neufchatel of the burden of three hundred & Nineteen tons, or thereabouts, owned by John Ordronaux & Peter E. Trevall of the City & State of New York and Joseph Beylle of Philadelphia in the State of Pennsylvania Mounting eighteen carriage guns, and navigated by one hundred & twenty nine men, hereby authorizing Nicholas Millin captain, and William Stetson lieutenant of the said Brig and the other officers and crew thereof, to subdue, seize, and take any armed or unarmed British vessel, public or private, which shall be found within the jurisdictional limits of the United States, or elsewhere on the high seas, or within the waters of the British dominions, and such captured vessel, with her apparel, guns, and appertenances, and the goods or effects which shall be found on board the same, together with all the british persons and others who shall be found acting on board, to bring within some port of the United States; and also to retake any vessel, goods, and effects of the people of the United States, which may have been captured by any British armed vessel, in order that proceedings may be had concerning such capture or recapture in due form of law, and as to right and justice shall appertain. The said Nicholas Millin is further authorized to detain, seize, and take all vessels and effects, to whomsoever belonging, which shall be liabel thereto according to the law of nations and the rights of the United States as a power at war, and to bring the same within some port of the United States, in order that due proceedings may be had thereon. This commission to continue in force during the pleasure of the president of the United States for the time being.

Note that the letter of marque describes the vessel as mounting 18 guns ( a common way of describing armed ships of the period) but does not license the arming of the vessel, instead licensing the vessel to capture British vessels.

More on letters of Marque here.

Think of how cost effective such a letter would be. Instead of invading Afghanistan at a cost of over $700 billion, it would have been more cost effective (if the citizens could legally have had arms in the first place) to offer a $10 billion dollar bounty to any American for the capture of, and a $5 billion bounty for the verified killing of, Osama Bin Laden.

 

[legaleagle_45]

I understand but I honestly believe the Miller and Heller formulations are how it will go down. It ain't perfect but it is acceptable to me. We have to have some definite formulation/parameters and nothing will be perfect IMHO.

Here is the one I prefer because it is faithful to the historic origins of the individual right to arms... I call it the "duality test"... in real abbreviated form:

The right to arms actually arose out of a duty to arms. Subjects were required to own and maintain certain weapons for use in the militia. These requirements were codified in a series of statutes collectively known as the "Assieze of Arms". The ordinary joe had a lesser burden than than nobility, who had a higher requirement respecting armaments. Thus a Count (think County) would be required to provide Knights in armor and the like.

As the duty progressed through time, there arose an expectation that the weapons which they were required to own for the militia could be employed for individual purposes, such as self defense and hunting. This was reflected in the nature of the burden imposed by law with said burden being offset by the the personel benefits associated with same. This even applied to the nobles, who's higher level of armament could be employed in connection with other law keeping obligations which they undertook by virtue of their rank.

When this expectation was violated, outrage arose leading to the first formal declaration of the right to arms in the English Bill of Rights. The dual nature of the right is reflected in the explanation for the right in Blackstone, as being to protect the underlying natural right of resistance (the militia right) and self preservation (individual self defense).

The Miller case only articulated one side of the equation... the militia right. The arm must be suitable for use in civilized warfare. I propose a test that looks at the entirety of the nature of the right protected... That the arm must be suitable for use in civilized warfare AND, at the same time, must be suitable for for individual self defense.

Which is why I call it the duality test...

 

[DammitBoy]

Last try

The 2nd A restricts the government from making it a crime to exercise the God given right to be armed.

Other restrictions are not unconstitutional.

What part of "Shall not be infringed" do you not understand? A restriction on any firearm type is an infringement of the 2nd Amendment.

Hence, if you wanted to make Uzi's illegal, YOU WOULD BE INFRINGING ON THE 2ND AMENDMENT.

 

[RDak]

Legaleagle: I was pointing out the SCOTUS parameters that might very well carry the day (as I know you know).

Problem is, your parameters are more judgmental (i.e., the second parameter about suitable for personal defense). Who decides?

The common use parameter is more definite/objective but hurts future developments. But approval of those future developed firearms will probably be based on judgmental "decisions" anyhow.

So, I guess your test is good also but, in conclusion, there is no perfect answer IMHO.

 

[1911Tuner]

My point is that if citizens can be well armed without a concealable SMG it is not an ingringment of the RTKBA to prohibit the SMG.

And there's that "need" implication rearing its head up again, bush.

"If you can be well-armed with a rifle, then you don't "need" a submachinegun."

"If a single shot rifle fits your immediate requirements, then you don't have a "need" for a lever-action repeater."

"If all you want is a pistol for home protection, then why do you "need" a 15-shot 9mm when 5 rounds will do."

And the slope starts to get slick once more.

Who's to determine what fits any individual's needs...and where does that determination stop?

For the average man, a submachinegun is really nothing more than a neat toy that he plays with about twice a year and shows to his friends. Like keeping a Saint Bernard as a companion/house pet when all you really "need" is a Yorkshire Terrier.

A 150 mph Corvette for transportation when all you really "need" is a Toyota Tercel.

It's not a question of need, and the word really has no place in the discussion. It's a question of: "If I want it, why should I not be (legally) allowed to have it?"

Or..another, less civil way of putting it:

"Who the blue bloody hell do you think you are to tell me what I need and don't need?"

A generalized you again, rather than a personal one.

 

[RDak]

That's right 1911Tuner. You have to set up objective parameters as best as you can and I believe the SCOTUS majority will attempt to do this eventually.

It's the future developments that have me a little worried.

What parameters can objectively be put in place to cover future developments?

(I don't know the answer.)

 

[legaleagle_45]

Problem is, your parameters are more judgmental (i.e., the second parameter about suitable for personal defense). Who decides?

The courts... but you are right, it is judgmental. I suspect that the "gray area" of the test will be found by the courts to reside with full auto. Bazookas, man portable missles and hand grenades would easily be classified as "militia only weapons". The chief advantage of employing my test is that we are not confronted by the catch 22 of the "common use" test and we would have a more objective analysis of the problem. Plus, when they develop that hand held, deer slayer ray gun, I want to own one.

 

[RDak]

No........I get the ray gun first......then if I say it is ok......you can buy one!!!

ETA: I agree completely with full-auto being the gray area and large ordnance is out.

 

[green-grizzly]

Obviously the second amendment applies to arms, not weapons. What is an arm? The second amendment provides some limitiations: an arm must be something you can carry ("bear").

IIRC it was Pat Buchanan who said that if you don't need a jeep to tow it, it is protected by the second amendment.

 

[bushmaster1313]

And Bushmaster...That was precisely why the 2nd Amendment was drafted. Not so that we could hunt and shoot at paper targets on pretty Sunday afternoons.

I agree.
Which is why I was convinced that auto rifles are protected.

 

[CoRoMo]

So, now that you've been convinced, would you be able to explain what was behind your opposition, not 24 hours ago?

 

[bushmaster1313]

Person with semi-auto .223 or .308 is armed.

I am concerned about the use of full auto by gang bangers and terrorists.

I was Convinced by the argument is that the decision was made by Congress to allow indiiduals to have the same firepower as an individual soldier in the standing army.

Still not heard why if a citizen has the same firepower as the infantry soldier certain weapons cannot be banned.

Anyways,
God Bless America and our Troops.

 

[CoRoMo]

I am concerned about the use of full auto by gang bangers and terrorists.

Are you saying that your concern about criminals using full auto weapons is what drove you to believe that I shouldn't have one?

 

[bushmaster1313]

Are you saying that your concern about criminals using full auto weapons is what drove you to believe that I shouldn't have one?

Yes.
But what I am trying to figure out is the scope of the 2nd A. protection.

 

[CoRoMo]

Okay then, got it. Yesterday, you felt that a free and honest man shouldn't be allowed to own a full auto firearm because of the concern you have regarding criminals using such weapons.

Lets just deal with that position. Congress aside for the moment.

Describe whatever gun laws can you imagine, that would influence the behavior of a criminal?

 

[bushmaster1313]

Okay then, got it. Yesterday, you felt that a free and honest man shouldn't be allowed to own a full auto firearm because of the concern you have regarding criminals using such weapons.

Yesterday I was putting full auto in the same category as stuff that can be banned, e.g. explosives.

Now I realize Congress has said full auto is protected even if dangerous in the wrong hands.

My question was where does the 2nd A draw the line.

Given that it allows full auto, my observation was that it does not protect concealed full auto.


nuff said.

 

[CoRoMo]

Can we put what Congress has done aside for a moment? I'm only trying to understand your thinking from yesterday, not what you've been convinced of today. Many here were willing to address your questions throughout the thread. Do you have an answer for my question?

 

[StarDust1]

Yesterday I was putting full auto in the same category as stuff that can be banned, e.g. explosives.

Now I realize Congress has said full auto is protected even if dangerous in the wrong hands.

My question was where does the 2nd A draw the line.

Given that it allows full auto, my observation was that it does not protect concealed full auto.


nuff said.

The 2nd doesn't draw the line anywhere, government officials have drawn the line(s), most of which clearly violate our 2nd Amendment rights...

 

[bushmaster1313]

Describe whatever gun laws can you imagine, that would influence the behavior of a criminal?

Most criminals don't care about the laws.
However, if you make the weapons of choice for the criminal element contraband it let's you put them away even if you do not catch them in the act.

For example, a person is apprehended walking towards a crowded event with a concealed SMG and lots of ammo and grenades in a bag.

I would like to be able to put this person away for a long time, and I have not infringed on your right to be armed with a long gun or a handgun.

you may disagree, but that is my opinion.

 

[Phatty]

For example, a person is apprehended walking towards a crowded event with a concealed SMG and lots of ammo and grenades in a bag.

Why not just arrest the dude for attempted first degree murder?

 

[divemedic]

For example, a person is apprehended walking towards a crowded event with a concealed SMG and lots of ammo and grenades in a bag.

I would like to be able to put this person away for a long time, and I have not infringed on your right to be armed with a long gun or a handgun.

Why not just arrest the dude for attempted first degree murder?

You both make a faulty assumption that the person intends to harm someone in the crowd with those weapons. That is like saying that a man with an erection intends to rape someone, so any man found with an erection should be imprisoned.

In such a case as you have outlined, you have infringed upon my right to own grenades and an SMG. As SCOTUS during the Heller arguments put it: "So it is OK for me to ban ownership of books, as long as I allow the ownership of newspapers?"

 

[1911Tuner]

However, if you make the weapons of choice for the criminal element contraband it let's you put them away even if you do not catch them in the act.

Before the former Soviet Union split up into separate states, the possession of smallarms by the comon folks was strictly forbidden. Yet, when it all came apart, the weapons suddenly appeared out of thin air, and the carnage began in earnest...and it still goes on today.

Before that, peasant women could be observed pouring diesel fuel onto the ground. The insider story was that they joked about watering the garden...but everybody knew why they poured diesel fuel on the ground. They were preventing rust on weapons that they planned to dig up one day.

Laws banning that which the government doesn't want you to have are useless. Only the law-abiding will comply. Criminals don't obey the law, and stopping one before he acts doesn't solve the problem. It saves a few lives, but it's like battling cockroaches. If you don't get'em all, you haven't solved your cockroach problem.