IMHO "Assault Weapons" Ban Is Not Unconstitutional

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Doesn't silencers reduce the range of a gun? I do not know the answer to this...
No. They actually have a slight tendency to increase the velocity (and thus range) of the bullet as they act somewhat like a (not completely sealed) longer barrel. Guys trying to load just barely subsonic rounds have to be mindful of this "suppressor boost" as if they work up a load without the 'can on and get right to the edge, they'll sometimes discover that they are producing a supersonic crack when the 'can is installed because the bullet is moving a few fps faster.
 
Everyone is quoting the wrong amendment. The operative amendment is the 10th: which to paraphrase says any power not specifically granted to the federal government, is left to the states or people. There is no power to regulate cosmetic features of rifles contained in the Constitution, therefore the fed can't do it. The states? Well, that will have to be argued in light of Heller and McDonald.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
 
Everyone is quoting the wrong amendment. The operative amendment is the 10th: which to paraphrase says any power not specifically granted to the federal government, is left to the states or people. There is no power to regulate cosmetic features of rifles contained in the Constitution, therefore the fed can't do it. The states? Well, that will have to be argued in light of Heller and McDonald.

No, given current commerce clause jurisprudence the feds can regulate articles of commerce (subject to rational basis review, which is a rather low bar) absent a restriction on that power. Put another way it is a power delegated by the constitution, Article I, Section 8, Clause 3 to be specific. In this case the restriction on that power would be the 2nd amendment. Mind you, I'm talking about what is, not what should be.
 
And regulation of commerce that restricts a right is a violation of the 2nd Amendment. Just because the article or service crosses state lines doesn't necessarily mean the Commerce Clause is valid and constitutionally applied to the regulation of such.
 
No, given current commerce clause jurisprudence the feds can regulate articles of commerce

The commerce clause only applies "among the states" so by definition it would be unconstitutional for the feds to regulate what options are legal within a state. For example, there should be no question that somebody should be able to build and sell high cap mags during the AWB unless he sold them across state lines.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".
 
btw the Constitution does not say we have the right to modify/change/update guns in the future.
The Constitution is a document limiting and outlining the powers of the federal government. It is not a document describing what rights we do and do not have.
 
Bottom Line ...

I think this whole thing sort of boils down to your everyday, basic gun control nonsense.

The whole argument against banning guns, or certain types of guns is ridiculous. Whatever restrictions you put on gun types or owning guns only hurts GOOD, honest, law-abiding, God-fearing citizens.

Funny how the criminals and drug cartels never seem to have a shortage of guns. Interesting how in Chicago even though there was a handgun ban in effect, for how many years, there were still a ton of gun related crimes! People who follow the laws will continue to do so while those that don't follow the laws anyway ... won't!

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!!!

And while I am not advocating for a lawless society I am trying to make the point that you shouldn't punish ALL the people for a few bad ones! My intentions for my guns are peaceful and benign ... no plans to do anything absurd so why is there a problem with me owning a gun?

Take Care and Be Safe!

Frank
NJGunOwner81
 
That's a slippery slope. Allow a part of a gun to be banned, then next year ban another part. How was the "Assault Rifle Ban" devised? Diane Feinstein went through a catalog of guns and banned the ones that looked "mean."
And you thought there was some logic? They could just as easily banned night sights, or trigger guards.
 
Banning a particular weapon because of its appearance violates the Second Amendment because you are restricting normal citizens from owning a certain firearm without a good reason to do so. It's akin to banning a word or phrase which, though its meaning is certainly not inherently bad, doesn't sound nice.

If you want to restrict ownership of any class of firearm, you need a way better reason than that. You can't just mess with Constitutional rights without showing that restriction of the right in question is demonstrably positive and in the interests of the United States, her Constitution, and her People. So the point here is not that AWBs are silly; it's that AWBs restrict a citizen's access to firearms for a silly reason.

As for things that are not cosmetic, like magazine capacity, we all know that criminals are never going to go along with that. I'm not comfortable with the idea that I'm only allowed ten rounds, while a gangbanger is carrying around 15-20.

Flash suppressors? I don't see that they have much use for citizens or criminals. Even if a homeboy in LA is opening fire on a rival gang with something that has a flash suppressor, the shooting will likely be over before anyone really takes cover and searches for the muzzle flash so they know where to put their sights. Also, multiple victim shootings like VA Tech seem to happen in daylight anyway. So if banning flash suppressors will have no effect on crime, and admittedly have little utility for civilians, there isn't much value in restricting their ownership.
 
We seem to be ALLOWING the feds to interpret this document as they see fit.

This is the "commerce clause" as I can find it online:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It seems somewhat straight forward and to the point, Also it does not say the gov. has the right to ban, only to regulate money paid by the states for goods from elsewhere.

It also does not give Pelosi or anyone else, the right to tell the people that they must buy into Obamacare, As she would have us believe.
 
It seems somewhat straight forward and to the point, Also it does not say the gov. has the right to ban, only to regulate money paid by the states for goods from elsewhere.

The Supreme Court has ruled that two portions give the feds power over everything and anything (which congress makes a law regulating).

The largest recent expansion and interpretation is in Gonzales v Raich, where the feds ruled that even something homemade, or homegrown, for private use, and never intended for sale to anyone at all in state or out of state, was still subject to federal jurisdiction.
(Many people get tied down by the subject matter of the specific case, not understanding what the question was regarding jurisdiction as it pertains to federal authority.)
This has been applied since then to everything from NFA firearms, to almost anything the feds wish to control.
Raich makes it clear that no longer does it actually have to even be involved in or move in interstate commerce, but even just remotely having even the tiniest perceived impact on commerce is enough. Even if never sold at all or transferred to another person in the state, never mind out of the state.

'To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;'

Has been applied to everything. In the Raich decision there was a few different legal arguments given in the majority decision, each giving power to control everything in a different way.
The first was that even something homemade, or homegrown and never sold (and by extension even something just sold within the state) would effect the supply and demand of the product out of the state. For example making your own gun means you would not have to purchase as many elsewhere, and thus you are purchasing fewer, having an impact on the market.
This applies even for black market items, for in Raich they said even an illegal drug grown would result in less purchase of that drug from the black market, reducing the demand at the national level, and thus interstate commerce was being impacted. Bringing it under federal jurisdiction.
Obviously there is nothing this would not apply to.
Catching rain water in a bucket could mean you purchase less water, so even those rain drops could be put under federal jurisdiction if Congress wished.

The second most important logic expanded was done specifically by Scalia but is part of the majority decision, making it law as well.
He used this portion:

'To make all Laws which shall be necessary and proper'

To justify almost anything and everything. Basically just in case something manages to slip through the excessive and overly broad interpretation above of the Commerce Clause, it can easily be applied through the "necessary and proper" portion.


Both logics cite previous cases to build up to their conclusion, but in reality they are new radical definitions, which extend beyond previous interpretations. (Like they cite Wickard v Filburn, but Filburn had entered into a contract with the government, and was receiving massive subsidies in order to abide by that contract, which he chose not to and claimed his personal use portion was outside of the contract. The government didn't just tell him what he could and could not do, he was specifically entered into a business arrangement and deemed to have violated his end of the deal.)


So with both of those interpretations of the Constitution together there is not a single thing outside the scope of federal authority.
The rain falling from the sky, the seed you plant in the ground, or the gun you build in your garage for personal use, they are all cemented under federal authority.

Now if you can manage to find some form of matter nobody sells, and which does not compete with or is used as a substitute or in lieu of something else, then just maybe that would be outside of the scope of the first logic given for the commerce clause, because it will not effect commerce or cause less purchasing of something else. I know of no such thing in existence.
But then of course it can just be deemed "necessary and proper" to regulate it if you do discover such a thing. :neener:


The 2nd Amendment however reduces how far this all encompassing power extends to firearms, and arms in general. How much does it reduce it? That has yet to be determined completely, but Heller is the current interpretation, now applied to all the states via McDonald.
 
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So, If you read post #62, and by using that logic, If I were to invent or build something (ANYTHING) that no one actually had a use for or even wanted, I could petition congress to enact the commerce clause and force people to buy it reguardless of the cost or the uselessness of the item or service.

With that in mind, in the event that (oh, let's say Bill Gates) decided that he wasn't making money fast enough, he should be able to petition congress to BAN all computers less than pentium 4, and force everyone to purchace new machines. And upgrade to his latest software.

As I said earlier, we are allowing them to inturpret the clause as they see fit
 
Which is greater, the federal gun control powers that come from the interstate commerce clause, or the state gun control powers that come from the states' reserved police powers?
 
If I were to invent or build something (ANYTHING) that no one actually had a use for or even wanted, I could petition congress to enact the commerce clause and force people to buy it reguardless of the cost or the uselessness of the item or service.

Not exactly, Congress could regulate it, or anything though.

People have in fact used Congress as well as state legislatures to mandate use of their proprietary or patented technology in just such a way though.

The people behind proposed legislation for microstamping would be an example.
They have tried in numerous states to get microstamping mandated, while they at the same time hold a patent on the process of getting it done. The result of course would be forced business with their company.
Legislating mandatory business with your company, or a company someone has a lot of stock in, or a business friend with a lot of stock, is nothing new, the people behind such legislation usually try not to be too closely tied with the efforts to pass the legislation though.

The micro-stamping company succeeded in California, but then towards the end the legislation was modified, adding that such technology would not become mandatory until the means to implement it were not held by a single patent holder.
So they succeeded and then it backfired on them.
They then went and tried to get it passed in multiple other states, but the legislation didn't go very far most places even after being introduced.
Now there is rumors they will free up the patents to at least get some business even if they are not the only business in town that can do it.



So yes, people do get legislation passed that mandates the use of a product, patented procedure, or resource. But patents expire, and then many others make the product, so tracing similar instances where that has happened takes time. But you can be certain there has been cases of it. Whether it is mandating a procedure, or mandating manufacture of certain things with materials or ingredients someone has a large majority or share of stock in...
Such things do happen, they generally just not as obvious to a regular Joe. You have to be connected to realize "Hey wait a minute, isn't Bob who backed that friends with Jim, who is in such a position with the company that controls __% of that product in the United States".

Such things happen all the time in "pork barrel" legislation at the Federal level, where business is mandated for various locales, or with certain businesses. Which can have national implications for what products succeed and fail. A corporation receiving a lot of such mandated business or money can then undersell competition, and ultimately even put them out of business. In certain industries such government contracts can virtually choose who wins or becomes powerful, and what products succeed.
 
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The commerce clause only applies "among the states" so by definition it would be unconstitutional for the feds to regulate what options are legal within a state.

No that is not how it has been interpreted by the SCOTUS since about 1937. Note that I said I was speaking of things as they are, not as they should be. You may want to read Wickard and perhaps more importantly Raich. What is clear is that if regulating purely intrastate activity is necessary to regulate the broader interstate market then it is allowed.

I had hoped that Lopez and its progeny were going to be a serious break in commerce clause doctrine. That came to a screeching halt in Raich thanks to Scalia. Personally, I think that O'Connor's dissent was correct.
 
Bushmaster, you are really confused. Here's the definition of infringe:

in·fringe
–verb (used without object)
2.
to encroach or trespass (usually fol. by on or upon ): Don't infringe on his privacy.

Not very complicated. Banning a gun because of the way it looks, the capacity of the magazine, whether or not it is automatic or semi-automatic. It doesn't matter. It's all infringement. The second amendment is not there to tell us what we can or can not have, it's there to tell the government that they can't tell us what we can or can't have. It doesn't give us rights...we already have the rights. They certainly had bayonets when it was written and they didn't add "except for arms with bayonets" on the end. It didn't say "except for arms with bayonets over 4 inches" at the end either. It is left vague because it has to be. It's all encompassing. It says "shall not be infringed". That covers all the bases. I'd say that's very clear and makes their intentions easily known.
 
Bushmaster, you are really confused. Here's the definition of infringe:

in·fringe
–verb (used without object)
2.
to encroach or trespass (usually fol. by on or upon ): Don't infringe on his privacy.

Not very complicated. Banning a gun because of the way it looks, the capacity of the magazine, whether or not it is automatic or semi-automatic. It doesn't matter. It's all infringement. The second amendment is not there to tell us what we can or can not have, it's there to tell the government that they can't tell us what we can or can't have. It doesn't give us rights...we already have the rights. They certainly had bayonets when it was written and they didn't add "except for arms with bayonets" on the end. It didn't say "except for arms with bayonets over 4 inches" at the end either. It is left vague because it has to be. It's all encompassing. It says "shall not be infringed". That covers all the bases. I'd say that's very clear and makes their intentions easily known.

"Infringe" is a term of art.
Let's assume that the 2nd A was ratified so that the Government could not prevent citizens from keeping and bearing arms that could be: used to protect the new Republic, used in self defense, and used to overthrow a tyrant. Nothing in that purpose implies that a law against pink guns would infringe the right to keep and bear arms.

Not every rule and regulation is an "infringement".

This country was founded based on Liberty, not Libertarianism.
 
Nothing in that purpose implies that a law against pink guns would infringe the right to keep and bear arms.
Again, then, we're back to the scrutiny question. A ban against pink rifles (or any other purely cosmetic feature) would serve no compelling government interest (like public safety), and could not possibly be considered to be tailored as narrowly as possible to serve whatever interest without infringing unduly on the innate right.

Congress can't pass laws that restrict basic rights on a complete whim. They have to establish that they're attempting to do something very important and that there's no other effective way to accomplish that goal.

[EDIT TO CLARIFY: Well, they can pass them, but they won't be ruled Constitutionally valid.]

I don't think there are any other ways to rephrase the same question. It simply doesn't fly.
 
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If we can't remain polite to each other -- even in our frustration over a disagreement -- then we'll have to close the thread.

Folks can disagree with us. That's fine. Folks can be DEAD WRONG. That's also allowed. We still must be civil. I've never insulted someone so "well" as to make them agree agree with me! ;) Chances are it won't happen here, either.
 
"Infringe" is a term of art.
Let's assume that the 2nd A was ratified so that the Government could not prevent citizens from keeping and bearing arms that could be: used to protect the new Republic, used in self defense, and used to overthrow a tyrant. Nothing in that purpose implies that a law against pink guns would infringe the right to keep and bear arms.

Not every rule and regulation is an "infringement".

But that's not what it says! It doesn't say that the guns are for a specific purpose or can only be used for one reason. Your "term of art" argument is pretty crazy. You could say that about anything that you don't agree with the wording on. Since the people who wrote the document are not here for us to ask, I think I'll go with the actual definition of the word (at the time it was written if that comes into question) rather than the interpretation of a guy on a web forum.

It doesn't say that they can infringe upon our rights to keep and bear arms except for any one specific purpose. It just says they can't...period. If the 1st amendment said we had the right to free speech to promote the artwork of painters, would that mean that an author would not have the same protection? You're entitled to your opinion, but you're still wrong.
 
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