The Second Amendment doesn't guarantee the right to get arms, true or false? (Moved from Legal)

[illinoisburt]

The OP's question in some ways gets to the heart of the text-and-tradition test set up by the Bruen decision. Most all the restrictions on arms are a 20th century construct. No one in America would have given a second thought about if personal guns were legal to acquire and keep before then. Big city laws like the Sullivan act came about after the turn of the century with the changing landscape and modernization of the country.

Cannons, warships, explosives, rifles, machine guns, handguns were all owned and used by private citizens at one time. Anyone who wanted them and could come up with the money could do so without any by-you-leave from the federal government pre-1934. It was understood that all manner of weapons were freely traded without constitutional impediment, hence the reason when 1934 came about it was a taxing scheme. (A giant raft of other federal laws came into being around this time greatly expanding government power where it very much didn't exist previously. People were distracted with a depression and lots of other problems so ceding ground wasn't much concern to most citizenry but it was awful important to do something about artillery pieces and machine guns after the Bonus Army affair in '32.)

Federal laws were few and far between with 1934 and 1968 as the big ones. These took a off with slews of amendments and adjustments going forward. There wasn't much doubt what legislators and agitators wanted: a complete bans on handguns and relegating long guns to hunting camps and sporting ranges. This was supposed to be a brave new world and putting the archaic past behind us as a society. Given the antiwar sentiment and fear of inner city crime of the 60s-70s-80s-90s they had a pretty good track record of pushing and passing their agenda. It likely would have continued if not for the Gulf war and subsequent terror attacks which changed a lot of public opinion about our military and people's inherit rights to self protection.

I would keep in mind this was not a case of the government establishing some new threshold for what qualified as constitutional rights in the past. Instead at each step the story was always the same -- bad people have some type of bad item already freely available to them, so we the good people need to be responsible and give up the right to the bad item so we can all be safer from the bad people.

 

[AlexanderA]

It's fairly obvious, as others in this thread have said, that the right to keep and bear arms implies the right to acquire them. But here's the interesting question -- is the right to acquire guns limited by the ability to afford them? Can gun ownership be constitutionally moderated by wealth? If not, and if gun ownership is supposed to be extended to the impecunious, then it seems that the government should step in and subsidize their ownership. Perhaps a tax credit for buying a military-style weapon?

On the other hand, if we subscribe to the theory that gun ownership is a zero-sum game, with winners and losers in the society, then wealth as a filter makes sense. In that case, why not levy a tax on guns, to make the wealth disparity even greater?

Frankly, either of these extremes makes me a little nervous. But, issues like these are bubbling just below the surface.

 

[LocoGringo]

If you'd like to become well informed on the Second Amendment as a "regular" citizen rather than a law student, look up The Second Amendment Primer. It's dry, but PACKED with "other" documents and debate at the time of introduction and ratification of The 2A.

The Second Amendment Primer: A Citizen's Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms: Adams, Les: 9781620876275: Amazon.com: Books

 

[JN01]

It's fairly obvious, as others in this thread have said, that the right to keep and bear arms implies the right to acquire them. But here's the interesting question -- is the right to acquire guns limited by the ability to afford them? Can gun ownership be constitutionally moderated by wealth? If not, and if gun ownership is supposed to be extended to the impecunious, then it seems that the government should step in and subsidize their ownership. Perhaps a tax credit for buying a military-style weapon?

On the other hand, if we subscribe to the theory that gun ownership is a zero-sum game, with winners and losers in the society, then wealth as a filter makes sense. In that case, why not levy a tax on guns, to make the wealth disparity even greater?

Frankly, either of these extremes makes me a little nervous. But, issues like these are bubbling just below the surface.

The 1st Amendment protects the right of a free press, but I don't think the government should be obligated to provide anyone with a printing press. So no, the government shouldn't give (other people's) money to those wanting to buy a gun. However, they shouldn't be able to use taxes or fees to hamper the exercise of the 2nd Amendment either.

 

[2agunner]

Over thinking a touch?

Better than under thinking?

 

[2agunner]

It's fairly obvious, as others in this thread have said, that the right to keep and bear arms implies the right to acquire them. But here's the interesting question -- is the right to acquire guns limited by the ability to afford them? Can gun ownership be constitutionally moderated by wealth? If not, and if gun ownership is supposed to be extended to the impecunious, then it seems that the government should step in and subsidize their ownership. Perhaps a tax credit for buying a military-style weapon?

On the other hand, if we subscribe to the theory that gun ownership is a zero-sum game, with winners and losers in the society, then wealth as a filter makes sense. In that case, why not levy a tax on guns, to make the wealth disparity even greater?

Frankly, either of these extremes makes me a little nervous. But, issues like these are bubbling just below the surface.

Isn't that where things are headed, additional taxes on guns and ammo?

The 1st Amendment protects the right of a free press, but I don't think the government should be obligated to provide anyone with a printing press. So no, the government shouldn't give (other people's) money to those wanting to buy a gun. However, they shouldn't be able to use taxes or fees to hamper the exercise of the 2nd Amendment either.

That's why Hi-point guns exist. Affordable guns for the masses. Whether they are reliable or not is a different matter.

 

[Pudge]

The 1st Amendment protects the right of a free press, but I don't think the government should be obligated to provide anyone with a printing press. So no, the government shouldn't give (other people's) money to those wanting to buy a gun. However, they shouldn't be able to use taxes or fees to hamper the exercise of the 2nd Amendment either.

I agree with the principle you are articulating (not the most responsible use of tax monies), however the government has provided grants to provide high speed internet to underserved communities, and the Lifeline Assistance program (you might remember the Obama phone) is another program that directly subsidizes the 1st Amendment. Maybe a tax break for the low income to purchase firearms or ammunition, and government subsidized training are reasonably analogous. Interesting to consider regardless.

 

[2agunner]

Along those same lines, gun makers could work with the government so grants, subsidies are provided to underserved. Imagine an individual can take a voucher to their LGS and get a shiny new gun at a steep discount. Maybe a government issued debit card for recurring ammo purchases. 2A is strengthened and the founding fathers would be proud. Of course, tongue in cheek or is it?

 

[RetiredUSNChief]

The Second Amendment only specifies the right to keep and bear arms. There's no mention of the right to acquire arms. In the absence of specifically mentioning the right to get arms, is it a right or something that should be regulated by the government/ATF?

Honestly, this sounds like what we called "sea-lawyering" in the Navy.

Which is quite apt when one considers the way politicians seem to think when they make up some of the laws that they do. It comes across as a childish way of behavior. Probably because it is.

"The Second Amendment says you have the RKBA, but it doesn't say you have a right to ammunition!"

"The Second Amendment says you have the RKBA, but it doesn't say you can have MODERN firearms!"

The problem with this kind of behavior (and such nitpicking IS a behavior, not a legitimate logical thought process) is that anybody can apply that tactic to anything else. It immediately becomes self-evident what the problem with that becomes.

Plus, if people want to go the EXPLICIT route with respect to rights, then it automatically follows that IMPLIED rights either do not exist or don't count. This is EXACTLY what they're trying to say in order to support their opinions this way. If it isn't specifically written, then it doesn't exist.

OK...I can pay that game as well:

There is no explicit "right to vote" ANYWHERE.

And this is generally where the arguments really heat up and get filled with determined vitriol that this is NOT the case. But when every answer to "show me" turns out to be EXACTLY what I just said, and is 100% in alignment with their own logic on "explicit", panic sets in.

Uh-oh...now it's rapidly getting into the "Hey, that's not funny!" realm for these people.

But honestly, it's not as if the writers of the Bill of Rights (coincidentally being consumate politicians themselves) hadn't already thought of this concept when they penned the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I mean, it's almost as if those people understood the concept of "sea-lawyering".


HOWEVER, this process is very much a part of how the legal world works. There is a logic in the realm of the legal world that quite often defies common sense and drives common people nuts. Like how tomatoes, botanically speaking, are actually fruit but the Supreme Court had to step in and make legal ruling that they are vegetables. Like how an "assault rifle" has a specific military definition, but politicians can freely re-define it in the legal realm using arbitrary terms for their own purposes.

Legal logic is complex, and attornies make their living applying it. But it DOES exist.

 

[2agunner]

Honestly, this sounds like what we called "sea-lawyering" in the Navy.

Which is quite apt when one considers the way politicians seem to think when they make up some of the laws that they do. It comes across as a childish way of behavior. Probably because it is.

"The Second Amendment says you have the RKBA, but it doesn't say you have a right to ammunition!"

"The Second Amendment says you have the RKBA, but it doesn't say you can have MODERN firearms!"

The problem with this kind of behavior (and such nitpicking IS a behavior, not a legitimate logical thought process) is that anybody can apply that tactic to anything else. It immediately becomes self-evident what the problem with that becomes.

Plus, if people want to go the EXPLICIT route with respect to rights, then it automatically follows that IMPLIED rights either do not exist or don't count. This is EXACTLY what they're trying to say in order to support their opinions this way. If it isn't specifically written, then it doesn't exist.

OK...I can pay that game as well:

There is no explicit "right to vote" ANYWHERE.

And this is generally where the arguments really heat up and get filled with determined vitriol that this is NOT the case. But when every answer to "show me" turns out to be EXACTLY what I just said, and is 100% in alignment with their own logic on "explicit", panic sets in.

Uh-oh...now it's rapidly getting into the "Hey, that's not funny!" realm for these people.

But honestly, it's not as if the writers of the Bill of Rights (coincidentally being consumate politicians themselves) hadn't already thought of this concept when they penned the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I mean, it's almost as if those people understood the concept of "sea-lawyering".


HOWEVER, this process is very much a part of how the legal world works. There is a logic in the realm of the legal world that quite often defies common sense and drives common people nuts. Like how tomatoes, botanically speaking, are actually fruit but the Supreme Court had to step in and make legal ruling that they are vegetables. Like how an "assault rifle" has a specific military definition, but politicians can freely re-define it in the legal realm using arbitrary terms for their own purposes.

Legal logic is complex, and attornies make their living applying it. But it DOES exist.

You are preaching to the choir. The only reason why I posted the question in the first place is because I was somewhat shocked by everything the gun salesman was saying to me. Maybe I shouldn't have been shocked but I never heard those things coming from a person that works at a gun store before. I don't know who he is or what his background is and what makes him believe what he does.

Bottom line: it was definitely shocking to me that the gun salesman was saying that the 2A doesn't guarantee the right to get guns because it's not implied.

Might be obvious to most people but not everyone including those that work in a gun store.

 

[AlexanderA]

We have to look at the original policy behind the 2nd Amendment. Despite what Justice Scalia said in the Heller decision, the militia system was the key to this. The idea was that an armed population would make it possible to mobilize a militia in time of need, as a substitute for a standing army. So in that light, the government should step in and provide for any shortcomings in arms (as indeed it did in the early days). Our prototype could be the Swiss system, where the citizens (after a brief period of training in the army), are given their military weapon to keep at home. Distribution of basic weapons would be part of the defense budget. If you wanted to have more guns in your private arsenal, that would be on you.

Or have we progressed beyond the conceptions of the Founders? (The antigunners would answer that question with an emphatic "yes.")

 

[MEHavey]

have we progressed beyond the conceptions of the Founders?

That is in fact the ticking bombshell elephant sitting in today's academic living room.
Short answer to be found (sic) in any of today's mass media headlines regarding those Founders.
Cut the roots... the tree dies.
and can be cut up for firewood.

"Yes"

.

 

[4v50 Gary]

Acquiring is implied.

 

[shafter]

With the information available to us, I don't think it's difficult to come to the conclusion that the Founders had no issue with the purchasing of firearms. How can one possess what one cannot acquire? What's more tricky is figuring out what they meant by "well regulated" militia. The militia had a command structure and duties required by law and enforced by municipal authorities. It wasn't a free for all. We have a powerful standing army now which the founders were leery of.

While I fully support keeping and bearing arms I can't help but notice that the world is so unrecognizably different now than it was several hundred years ago. It's easy to see how both sides can support and attack an Amendment that is so brief and lacking in detail.

 

[2agunner]

Legal logic is complex, and attornies make their living applying it. But it DOES exist.

I will make an analogy and compare legal logic to electronics design. An electrical engineer designs a piece of gear, let's say an amplifier or speaker. He can make the electrical circuit as simple or complex as he wants. But, the end goal is the same which is to make sound. He is only limited by number of the electronic parts or what can be done to achieve a certain kind of sound by the quality of the parts.

Contrast this to legal logic used by attorneys. They know what their legal position is and the outcome they want as the end goal. He can make his case by making it as complex or simple as needed. He is only limited by his knowledge of known court cases and legal terms used. Time is also a big factor in the quality of him presenting his case.

Bottom line: generally speaking, keeping things simple is better, whether it's electronics design, firearm design, or arguing a case.

The reason why I say all this is because in my opinion, since an attorney gets paid for his services, it doesn't benefit him enough to make things quick, easy, simple. It wouldn't seem you are getting much for your legal services money. Usually, they get paid well for their time. So, "legalese" can be used to convolute matters and extend time spent on the case.

Compare that to electronics audio design. If an audio company manufactured a piece of gear with only a few parts it would never be successful because the consumer would feel like he's not getting what he paid for so generally electronics are designed much more complex than it needs to be for the sake of selling more product.

The 2A was written in simple, common language but still not everyone understands or agrees on everything like the gun salesman. So, you can imagine what happens when legal terms are used with complex definitions when most people are not legal scholars or graduated from the top law schools in the country.

 

[AlexanderA]

With the information available to us, I don't think it's difficult to come to the conclusion that the Founders had no issue with the purchasing of firearms.

Exactly. In those days, anyone could purchase anything. Merchant vessels would routinely be armed with cannon. And personal use of arms for self defense, hunting, etc., wasn't an issue either. No, the Founders were worried about some authority in the future denying arms to the organized or unorganized militia. This would have involved seizing already-possessed arms. (They remembered the British at Concord.) The 2nd Amendment simply cannot be understood without reference to the militia.

The Founders were the radical, rabble-rousing "progressives" of their day. If they had been "conservatives," they would have been Tories. (The dyed-in-the-wool "conservatives" (Tories) ended up exiled in Canada.) The 2nd Amendment basically was an expression of the Founders' fear of a standing army. They wanted a defense system made up of amateurs. Historically, it didn't take long to find out that this idealistic approach didn't work. But here we are, left with a 2nd Amendment that cannot be repealed, and that has to be constantly reinterpreted so as to be relevant to modern conditions. Make no mistake, Heller was a radical reinterpretation totally unhinged from history. (Which may not have been bad in result, but it was certainly not "originalism.")

 

[westernrover]

The Second Amendment only specifies the right to keep and bear arms. There's no mention of the right to acquire arms.

No. Big mistake and a common one. The Second Amendment specifies the right to keep and bear arms shall not be infringed. It does not grant a right. It prohibits the infringement of the existing right. If it is read correctly, it becomes obvious that restricting the availbility of arms infringes.

 

[wayneinFL]

Cannons, warships, explosives, rifles, machine guns, handguns were all owned and used by private citizens at one time. Anyone who wanted them and could come up with the money could do so without any by-you-leave from the federal government pre-1934. It was understood that all manner of weapons were freely traded without constitutional impediment, hence the reason when 1934 came about it was a taxing scheme. (A giant raft of other federal laws came into being around this time greatly expanding government power where it very much didn't exist previously. People were distracted with a depression and lots of other problems so ceding ground wasn't much concern to most citizenry but it was awful important to do something about artillery pieces and machine guns after the Bonus Army affair in '32.)

It seems to me Congress didn't think they had the power to ban anything so they taxed the heck out of it. A $200 tax would have probably doubled the cost of a Thompson in those days.

That was long before the commerce clause was interpreted to read that congress can do absolutely anything as long as they say it affects interstate commerce. I'm exaggerating, but not much.

 

[Old Dog]

There is no explicit "right to vote" ANYWHERE.

And that's when we say, but what about those pesky 15th,19th, 24th and 26th Amendments as well as the Voting Rights Act of 1965 with several subsequent extensions? With the acknowledgement that Shelby v. Holder gutted the VRA, there's still significant movement within the country to formally improve the right to vote throughout the country and review of unconstitutional barriers to disenfranchise citizens.

And this is generally where the arguments really heat up and get filled with determined vitriol that this is NOT the case. But when every answer to "show me" turns out to be EXACTLY what I just said, and is 100% in alignment with their own logic on "explicit", panic sets in.

And that's when they say, asking for identification to cast one's ballot, or force one to cast one's ballot in person is a barrier to voting, and and unreasonable "restriction" on one's right to vote. It's a constitutional right to "their" side.

Yet "their" side not only throws up additional barriers to acquiring firearms, ID is required. Go figure. One constitutional right comes fraught with barriers and infringements while requiring positive identification to exercise that right.

And... another is viewed in exactly the opposite. Is it about the perceived threat or danger to the society? Some would posit that the results of elections spawn far more disastrous consequences to a country than the ability to purchase firearms.

Some would say that this hypocrisy should be evident to both sides.

And still, we are not always arguing specific concepts, but too often rather simply the definitions of words contained in the concepts and the interpretations of seemingly plain language.

Anyone remember the movie Something's Gotta Give with Jack Nicholson? Great line after Diane Keaton's character calls out Nicholson's character for lying to her... He says, "Ive never lied to you, I've always told you some version of the truth." And she replies something along the lines of, "There are no versions of the truth." When we get down in the weeds like this, that's pretty much how I feel. At this point, we need to acknowledge that the other side will never see our "version of the truth" and figure out how better to approach the issues besides constantly repeating our mantra, "The Second Amendment specifies the right to keep and bear arms shall not be infringed." The other side does not, and will not, ever understand this.

 

[2agunner]

No. Big mistake and a common one. The Second Amendment specifies the right to keep and bear arms shall not be infringed. It does not grant a right. It prohibits the infringement of the existing right. If it is read correctly, it becomes obvious that restricting the availbility of arms infringes.

Let me make sure I'm following you. In other words, there's no need to mention the right to acquire arms. A right can't be given or taken away. 2A implies one can get guns that can't be taken away or infringed. In other words, 2A can't prohibit getting guns even though in reality there's many guns and gun related items that we can't buy, acquire, or possess.

So, the gun salesman is saying a person doesn't have the a right to get guns to begin with because it's not a right but a privilege provided by the government OR said another way a right doesn't exist therefore acquiring is not implied and can be infringed. Is that correct?

 

[rust collector]

The gun salesman shouldn't be selling guns if he believes that nonsense. Ask him to cite some authority for his position, or keep it to himself.

 

[2agunner]

The gun salesman shouldn't be selling guns if he believes that nonsense. Ask him to cite some authority for his position, or keep it to himself.

At this point not concerned about what the gun salesman said because we know it's nonsense. Just asking for clarification on Westernrover post.

 

[Old Dog]

So, the gun salesman is saying a person doesn't have the a right to get guns to begin with because it's not a right but a privilege provided by the government OR said another way a right doesn't exist therefore acquiring is not implied and can be infringed.

I'll say it. A gun salesman who'd say something such as this is a blithering idiot.

 

[rust collector]

You are treading some dangerous ground referring to the right to keep and bear arms as a privilege. Privileges can be restricted or withdrawn, as with a driver's license. Not so inherent rights acknowledged and protected by our organic law.

 

[crstrode]

The Second Amendment only specifies the right to keep and bear arms. There's no mention of the right to acquire arms.

Trolls gonna troll.