IMHO "Assault Weapons" Ban Is Not Unconstitutional

[Carl N. Brown]

OK, this was constitutional:

AMENDMENT XVIII.

Section 1. After one year from the ratification of this article
the manufacture, sale, or transportation of intoxicating liquors
within, the importation thereof into, or the exportation thereof
from the United States and all territory subject to the
jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate
legislation.

Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the
legislatures of the several States, as provided in the
Constitution, within seven years from the date of the submission
hereof to the States by the Congress.

This, too, was constitutional:

AMENDMENT XXI.

Section 1. The eighteenth article of amendment to the
Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws
thereof, is hereby prohibited.

Section 3. (repeats boilerplate XVIII above)

Constitutional or not does not mean that a law should be passed just because it can be passed.

At the risk of being labelled a member of the "law and economics" school, I would like to point out that there should be a common-sense balance of cost v benefit of any law. It does the dignity of the law no good to pass ludicruous laws just because the legislative branch has the power to do so: the legislature incurs the cost of undermining public respect for Law by passing useless or conterproductive laws laden with unintended consequences.

Since Lott 2000, CDC 2003 and NAS 2004 found no measurable benefit from the anti-gun laws, and they obviously at least divert taxpayer dollars away from policies that are believed to work, there is no cost v benefit balance justifying outlawing pink guns (or "shoulder things that go up").

This re-enforces in my mind that legal, illegal, right and wrong are four different sets with varying intersecting subsets. Just because it is legal does not make it right.

 

[ArmedBear]

the legislature incurs the cost of undermining public respect for Law by passing useless or conterproductive laws laden with unintended consequences.

The legislature incurs the cost, but we, the general public, pay the price. It can even be argued that the now-common practice of turning everyone into an unwitting or even intentional "criminal" has its benefits for the political class. But when there is general disrespect for and disregard for malum prohibitum laws, there tends to be much less regard for malum in se laws as well.

 

[Baba Louie]

Perhaps

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Perhaps, under the above clause, the Fed have a means to "ban" or "govern" one thing or another as not being "proper and necessary" for their "Militia (organized or unorganized) in way of "organizing, arming, and disciplining". (No pink guns, No bayonets for the unorganized, 25 rounds max ea., etc).

Just as they might be able to "Register" ea. militia member (for callup) noting weaponry, training, etc. which would of course be considered some form of gun control... or militia control.

Perhaps. But it ain't happened yet in that fashion.

 

[Zack]

I hope all those dumb bans are struck down, I can't even buy an AK in CT.
__________________

thats a shame.... What is the reason to ban 1 gun over another? they all shoot bullets... is it because they look different? woah! thats gun racism!

 

[Carl N. Brown]

Anything you can do wrong with a gun is malum in se: murder, assault, armed robbery, reckless endangerment. Most "gun control" laws are malum prohibitum, the province of those who like to make a scapegoat of a thing (demon rum, reefer madness, killier comic books, Lady Chatterly's Lover, movies, TV) for human bad acts and by banning the symbol in a sort of voodoo criminology exorcism think they are doing good.

The NAS NRC panel in questioning "Gun Buyback" programs noted that there are 6,500 handgun homicides of 65 million handguns each year, or 1 in 10,000. Obviously the 9,999 handguns are kept or used for purposes other than committing homicide each year and a sane gun policy would give weight to the non-homicide uses and users. Especially given the failures of most malum prohibitum laws to accomplish their stated goals.

Imagine if laws on rape or prostitution were administered like gun control laws: the majority of the innocent would be licensed, registered and taxed for owning the equipment misused by the minority of offenders.

 

[ArmedBear]

Hmmm...

It says "train the militia according to the discipline prescribed by Congress." To me, that seems to give Congress the power to establish training standards, so that the militia has certain minimum capabilities. The country doesn't want to find out during a national emergency that, in some states, "militia training" consisted of a weekend of beer pong, and that most members couldn't do a push-up or hit a target at 50 yards.

That doesn't necessarily mean that Congress can ban bayonets for the unorganized.

What is intriguing about Heller, though, is the tautological standard for civilian guns. We have the right to have the guns that are "in common use" by civilians. That boils down to "we have the right to have the types of arms that we already have."

I have little doubt that the military-issue M4 would be a fairly common firearm in civilian hands, were it not for NFA34 and FOPA86. The M4gery is fairly common, now, but additional production runs of the existing military-spec guns would have been faster to the market. Note that, where guns are common in parts of the Middle East and Asia, select-fire AKs are commonplace.

So, the Heller opinion effectively gives the government the power to ban a weapon, as long as they enact the ban early enough, before the weapon becomes commonplace. That hardly seems like much of a guaranteed RKBA, when you think about it...

 

[General Geoff]

So, the Heller opinion effectively gives the government the power to ban a weapon, as long as they enact the ban early enough, before the weapon becomes commonplace. That hardly seems like much of a guaranteed RKBA, when you think about it...

Well, they haven't actually addressed select-fire weapons yet, specifically.

 

[Zoogster]

What is intriguing about Heller, though, is the tautological standard for civilian guns. We have the right to have the guns that are "in common use" by civilians. That boils down to "we have the right to have the types of arms that we already have."

I have little doubt that the military-issue M4 would be a fairly common firearm in civilian hands, were it not for NFA34 and FOPA86. The M4gery is fairly common, now, but additional production runs of the existing military-spec guns would have been faster to the market. Note that, where guns are common in parts of the Middle East and Asia, select-fire AKs are commonplace.

So, the Heller opinion effectively gives the government the power to ban a weapon, as long as they enact the ban early enough, before the weapon becomes commonplace. That hardly seems like much of a guaranteed RKBA, when you think about it...

I thought about this when Heller came out. It really depends on what is defined as "in common use".
In common use by whom? With the connection of militias in the historical context of the United States, and the intent of the founders, there is a rather clear militant capability and level of firepower the founders wish the citizens to retain in comparison to the armed forces of the world at the disposal of governments.

If we consider that the founders intended the weapons of the citizens to be able to deter the armed forces of foreign and domestic nations, it would seem rather obvious that a basic minimum would be somewhere around what was "in common use" with the infantry of the world.
When virtually every armed soldier, from the developed world to the third world, has a type or class of weapons, wouldn't those be the ones "in common use" under the context of the founders?

I would say that the standard issue arm of most of the armed forces in both the US and the world is pretty common. Or "in common use".



This would also mean that as technology improves and the arms held by the type of tyrannical threats the founders wish to deter and defend against improve, the arms held by the citizens would improve as well.
When the standard infantryman of the world is issued a select fire plasma rifle, it will be in common use, and the citizens meant to deter the infantrymen of the world would purchase them as well.


That is really the only sane option of interpretation, otherwise the citizens are virtually stuck with old technology, and the very intent of the founders in protecting the right to arms is nullified.
If in a hundred years when standard issue military body armor has seen many technological improvements and defeats almost every small arm caliber up to the legal .50 cutoff using standard projectiles, and the infantry are using the latest firearm with projectiles specifically designed to defeat such armor as also worn by other military forces of the world, the 2nd Amendment's intent is defeated if such arms and projectiles are illegal for the citizen.
When the forces of the world are impervious to the type of arms available to the citizen, then the founders' intent with the 2nd Amendment is defeated.

 

[wooldl]

I think we should ban the use of the phrase "assault rifle" altogether. It's a negative connotation given to a semi-automatice rifle by the media to create a scare. As to a bayonet lug or flash suppressor being purily cosmetic....of course they're not purily cosmetic. But if we're going to say that banning cosmetics is constitutional, let's begin with curb feelers on cars.....or 24" rims on an F150......that's just wrong.

 

[Zoogster]

I think we should ban the use of the phrase "assault rifle" altogether. It's a negative connotation given to a semi-automatice rifle by the media to create a scare.

I think you are thinking of "assault weapon" not "rifle" as that is the legislative term the antis use.
And who said it has anything to do with a rifle?

That is how you get defeated by the antis, assuming to know the definition of the term. Especially when it is not currently federally defined, and most proposed "renewals" have a line that completely alters the definition.


In California a handgun with a threaded muzzle is an "assault weapon".
No rifle there.
The term is a facade, which grows to encompass new things because it has no real definition.

These with the 10 round detachable magazines are a California Assault Weapon:

 

[ArmedBear]

Zoogster, I agree with your assessment.

I think there may be some basis for a suit that would claim infringement of our rights because we as civilians cannot buy the standard infantry small arms of the US military, while government entities -- even clearly non-military entities -- can.

Now I also don't think that this is necessarily the best time to bring such a suit, and I understand the difference between philosophy and tactics. However, I think that such a suit may make sense at some point, as we continue the long march towards court precedent for the 2nd Amendment meaning what it says.

I also find the idea of this suit scary, like the NRA did Heller, because we might lose. The temptation of outcome-driven jurisprudence is far too great, even for "originalist" justices, when it comes to "scary" things like "machine guns."

 

[General Geoff]

I also find the idea of this suit scary, like the NRA did Heller, because we might lose. The temptation of outcome-driven jurisprudence is far too great, even for "originalist" justices, when it comes to "scary" things like "machine guns."

I think we'll do fine, as long as we ease gradually towards the machine gun issue. Think of the leaps and bounds we've made in the past five years. I don't think select fire rifles will have much of a taboo at all, given another 10 years. Especially if we can get the NFA machine gun ban repealed before then, to help bring select fire rifles back into "common use."

 

[Zoogster]

Now I also don't think that this is necessarily the best time to bring such a suit, and I understand the difference between philosophy and tactics. However, I think that such a suit may make sense at some point, as we continue the long march towards court precedent for the 2nd Amendment meaning what it says.

I also find the idea of this suit scary, like the NRA did Heller, because we might lose. The temptation of outcome-driven jurisprudence is far too great, even for "originalist" justices, when it comes to "scary" things like "machine guns."

I Agree.
Intellectual dishonesty can arise if the likely outcome differs too greatly from the desired outcome, or it is too scary.
So even a scholar well versed in the reason for the 2nd, the law, and who has read the correspondence between the founders and understands their views and intent, could still decide against the freedom in question.
Citing various legal arguments in support of their decision even knowing them to be intellectually dishonest simply to achieve a desired outcome (like keeping the status quo.)

At the same time something not addressed long enough becomes a de facto restriction itself. See the Miller case left relatively open ended (after Miller died) as an example. In Miller they practically said NFA firearms were constitutionally protected if they had some militia/military practicality (which the defendant never submitted evidence to show.)
Yet because the issue was not addressed again for decades, restrictions grew up around the open door the Court had created, and that open door became wedged shut over time. By the time the Court even addressed firearm rights again, nearly 70 years later in Heller, that had been the status quo for so long they didn't want to undo too much and actually removed any precedent set by Miller in the Heller decision.
So while you can lose by rushing things, and not firmly establishing more important details or legal groundwork first, you can also lose by waiting too long and lose by default without a case even being heard.

 

[Enachos]

This thread is a slap in the face to all of us responsible gun owners with "scary" weapons.... Tell me, what makes these "scary" black rifles scarier than a conventional hunting rifle? They both shoot bullets don't they?

So what if I want to slap a flash suppressor to my AK? So what if I wanted different colored furniture on it?

Should the goverment be allowed to tell me what color my car or house can be? I think not!

 

[ArmedBear]

I think we'll do fine, as long as we ease gradually towards the machine gun issue.

Absolutely.

The Overton Window is a very important concept, and it applies to gun laws and RKBA more clearly than almost any other subject. Too bad Overton died at a relatively young age; he would have seen his ideas sketched out in some of the most vivid colors of reality.

Tactically, we need to be shifting the Overton Window. That means that we need to be good ambassadors of RKBA. So no getting drunk and shooting at the neighbor's cat, etc.

(I'm not referring to Glenn Beck's novel of that name. I have never even seen it.)

 

[livewire98801]

Bad people will do bad things regardless of the laws! We have laws against murder ... people are still killed! We have laws against doing narcotics ... people still do them! We have laws against speeding ... people still speed!!!

We have laws against speeding, but we don't ban cars with more than 50 horsepower. We do limit certain 'dangerous' capabilities, but cars are also not protected by the constitution. I have the RIGHT to own a gun, I have the PRIVILEGE to drive.

I fully support laws against murder. On the other hand, since we can't ban rocks, sticks, and rope, banning guns can't be a solution. So, even if the 2nd didn't exist, the logic for banning guns is fairly pointless. People were robbed, raped, murdered and kidnapped long before the first gunpowder was developed.

So no getting drunk and shooting at the neighbor's cat, etc

Amen. . . every time I see "random drunk dude does something stupid with gun" news articles, I cringe, knowing that headline is gonna show up in someone's anti-gun rant somewhere. Especially if it's an AR, AK, or other "scary" gun, or it's in California or New York.

 

[General Geoff]

We do limit certain 'dangerous' capabilities, but cars are also not protected by the constitution.

The Constitution does protect the private ownership of cars, since nowhere in the Constitution does it say that the federal government can regulate them (not to mention the common law right to travel). But, that doesn't matter since Wickard v. Filburn...

 

[livewire98801]

The Constitution does protect the private ownership of cars, since nowhere in the Constitution does it say that the federal government can regulate them (not to mention the common law right to travel). But, that doesn't matter since Wickard v. Filburn...

Good point. . . but while 'travel' is a 'natural' right, automobile ownership is not. While I agree with you, we would both lose in court because of existing case law. Also, most vehicle regulations are at the state level, I believe. (disclaimer: not a car guy, but am a computer guy, so most of my analogies are about cars anyway)

I personally believe that the framers of the nation intended the only Federal laws to be designed to protect the liberties of the civilian population, while states had more freedom to interface with the daily lives of the citizenry. Since it's theoretically easier to overthrow a state government at the polls, and the 'acceptable' regulation differs from state to state.

In that case, the 'enumerated' rights in the BoR can't be touched by Federal, State, or Local governments; while 'unenumerated' rights (privacy, access to healthcare, Enachos's lime green house) can be until the Federal government overrules them.

Of course, that's not where we ended up ( $#@& commerce clause ), but I think that was the elusive "original intent".

 

[Harley Rider 55]

The DOD is in the busines of combat. Their definition of an assault weapon is one capable of full auto or selective fire. Autoloading look-alikes are simply cosmetic features that make a weapon appear to be of the type used by the DOD.
The gun grabbers have convinced many that you can go to Cabelas and walk out with a machine gun.

 

[General Geoff]

Good point. . . but while 'travel' is a 'natural' right, automobile ownership is not.

Ownership of property in general is a natural right. Cars are included as well as firearms.

While I agree with you, we would both lose in court because of existing case law.

Tell that to this guy.

 

[livewire98801]

The DOD is in the busines of combat. Their definition of an assault weapon is one capable of full auto or selective fire. Autoloading look-alikes are simply cosmetic features that make a weapon appear to be of the type used by the DOD.

Yeah, "Assault weapon" is a made up term that the media and politicians like to throw around. "Assault Rifle" has a definition that is valid.

The gun grabbers have convinced many that you can go to Cabelas and walk out with a machine gun.

I have a coworker who recently said to me (while talking about gun laws with a very liberal boss) that my AR is just like the other gun she shot because "They all keep firing until you let the trigger go", and proceeded to argue with me when I told her that full auto weapons are almost impossible to get your hands on in Washington State. Perception is the biggest battle we face, the courts are a close second. . .

 

[Sam1911]

proceeded to argue with me when I told her that full auto weapons are almost impossible to get your hands on in Washington State. Perception is the biggest battle we face, the courts are a close second. . .

Then try telling them that the 2nd Amendment actually protects your right to own a REAL Assault Rifle (i.e.: machine gun) and, in fact, can be though of as protecting your right to own/bear a military weapon MORE than it does some hunting rifle.

And try telling them that society would still be just fine if REAL Assault Rifles were as easy to get as a Remlinchester from WalMart.

a very liberal boss

Liberal? Someone who doesn't value the fullest understanding of our freedoms doesn't sound very "liberal" to me...!

 

[General Geoff]

And try telling them that society would still be just fine if REAL Assault Rifles were as easy to get as a Remlinchester from WalMart.

It would stimulate the economy a lot too; imagine how many extra workers would be hired by ammunition factories!

 

[livewire98801]

Liberal? Someone who doesn't value the fullest understanding of our freedoms doesn't sound very "liberal" to me...!

I talk to my Dad too much. . . but in the interest of avoiding political discussion I'll just point out that she doesn't understand the concept of why I'd ever want to own a gun, let alone why I have CCW permits in three states, and why I think the CCW permit itself violates the 2nd amendment

It would stimulate the economy a lot too; imagine how many extra workers would be hired by ammunition factories!

They seem to be doing pretty good about now anyway

 

[stickhauler]

Please explain how the banning of pink guns would prevent someone from keeping and bearing arms.

Because a camo'd out AR clashes something awful with your outfit if you're wearing pink. I think you need to face the reality that the anti's want to ban a "Evil Black Rifle" not based on cosmetics, not because it's black or any other color. The style of it, looking like a rifle used in the military makes it scary looking. In fact, the term you use for it is what they classify any firearm that uses a detachable magazine that holds in excess of 10 rounds.