What might be a rational metric for determining where the second ammendment ends?

[Syztems Rety]

Originally Posted by mcg-doc

Originally Posted by 1911 guy
Nope. It's there in the original. Our high school english teachers would not approve of the punctuation usage, but the founders apparently weren't grammar nazis.

UCLA law school web page and my own copy of T.J. Nortons "The Constitution of the United States it's sources and application" page 206 (1963 edition) checked for accuracy.

Library of Congress

Here is a picture of the original Bill of Rights. See Article 4, which was ratified as the 2nd amendment. I can see a comma after militia.

Original

Here is a transcript from constitution.org

Transcript


Hey, I've been reading over a year and finally had something to post!

Eric.

 

[mljdeckard]

I am mostly ok with the arms/odnance distinction. However, there are some grey areas. Say you have a squad weapon based on the AR that fires from the open bolt. Is that a rifle, which would be arms, or a machine gun, which would be ordnance?

I think that any weapon designed to be used BY individuals AGAINST individuals is arms.

 

[Sam1911]

I once posted this as my general working hypothesis on the question:

The idea in my concept is that those who feel they must take up arms to defend their cause must have the ability to effectively do their oppressors significant harm. So their best weapons must not be mere heated words, pointed sticks, and other low-effect tools. A portion of society that feels all hope of peaceful redress of greivences through the legislative process is lost, must have the ability to act effectively in violent concert.

On the other hand, the goal of insurrection as promoted by the Founders in the Declaration of Independence and other documents is not that ONE person could have the power to force his will on others, and/or destroy towns, and kill mass numbers of people. So there is a practical reason for why ordnance (and the sorts of mass-effect weapons that have been developed, from nerve gasses to nuclear weapons) are not in the hands of the individual.

There is a balance here. We don't want one man to have the ability to wipe out a city because he's not happy. The individual with his rifle, or with his machine gun, grenades, and other anti-personnel weapons doesn't present a credible threat to society at large, and is not a compelling force for governmental change and/or resistance. But a large number of individals all dedicated to one goal and armed with conventional arms may be so.

 

[JustinJ]

Well put, Sam.

 

[Prince Yamato]

I think 2A is basically limited by what can be construed as a "defensive weapon". Handguns, rifles, Machine guns, shotguns, etc. Are principally used for personal DEFENSE. They are, for the most part, precision.

Other weapons, like grenades, RPGs, and heavier weapons, are not precision weapons. They are made to explode a large area. That is more offensive than defensive.

Think of it this way: Small arms are for helping to maintain order, heavy weapons are for creating disorder.

Your handgun, machine gun, etc. can be used by yourself (personal defense) to maintain order. You and your neighborhood can use your guns during a riot to maintain order. Tossing grenades and firing RPGs... well, if you have to do that, you're probably way beyond the point of restoring order and things being "well regulated". Or a more extreme example: the shelling of Normandy on D-Day.

 

[Owen Sparks]

All types of small arms should be legal.

Explosives as well as explosive projectiles should be regulated to the point that the storage of them does not endanger other people. The same general regulations that apply to storing and handling commercial dynamite should apply to hand grenades or mortar rounds if some wealthy individual wishes to own them. I would not want the guy in the next appartment to have a case of RPG's go off in an accident. If he wants to store and shoot them off way out in the desert somewhere I would not care.

BTW, Anyone know what a single mortar round would cost?

 

[geekWithA.45]

Me, I'm going with Tenche Cox:

"Their swords, and every other terrible implement of the soldier, are the birthright of an American..."
- Tenche Coxe

The 2nd amendment is very specifically about preventing a citizen/soldier vassal/knight dichotomy.


Here's the full quote:

Who are the militia? Are they not ourselves?

Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia.

Their swords, and every other terrible implement of the soldier, are the birthright of an American.

[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people

The very premise that some magnitude of arms are too potent for citizens and are thus reserved for the state immediately accepts that dichotomy, with the citizens in the submissive position.



With respect to WMD of any type, no one ever asks the right question: If there is no individual right to own a nuke, and considering that we axiomatically accept that powers of government flow from the people themselves, from whence does the government's right to have one come, if not from the people? What makes it moral or ethical for a government/group/gang, but not an individual?

 

[JustinJ]

With respect to WMD of any type, no one ever asks the right question: If there is no individual right to own a nuke, and considering that we axiomatically accept that powers of government flow from the people themselves, from whence does the government's right to have one come, if not from the people? What makes it moral or ethical for a government/group/gang, but not an individual?

Who said it is moral for a gov't to posses them either? In my opinion creation of the nuke was one of the greatest crimes against humanity and if man had any sense they would all be destroyed immediately. However, in a gov't of the people by the people the gov't has a right to own these things because in theory they are the agent of the people. Possession of them by the gov't is in a way shared possession of them by the people.

 

[ArfinGreebly]

Are you implying that an armed populace is the way to do it in modern times? Many countries have been fortunate enough to have a peaceful transfer to representative democracies but others have not. However, the government of no industrialized nation in modern times will be overthrown with privately owned weapons. The only chance for change through armed conflict today is when enough of the military defects and brings weapons that are actually effective to the rebel side.

Do we have any history majors in the room who would like to field this one?

This one is still unanswered.

Geek, you have history background?

"Many countries" . . . "peaceful transfer" . . . ?

My history may be a little weak, but I don't recall this.

The Magna Carta was signed at the point of a sword.

I can't recall any nation where a despot or tyrant willingly turned over power to a "representative government."

Perhaps someone can help me out.

 

[geekWithA.45]

Who said it is moral for a gov't to posses them either?

Ding! Ding! Ding! Indeed. I for one have not resolved that question either way to my satisfaction.

However, in a gov't of the people by the people the gov't has a right to own these things because in theory they are the agent of the people. Possession of them by the gov't is in a way shared possession of them by the people.

So, if for the sake of argument we concede that *some* entity can validly posess nukes..


AND if we're going to go with the theory that power spontaneously becomes legitimate when some critical mass is reached, what is the quorum necessary to legitimize posession of nukes? (Or any other dubious proposition for that matter?)

I can't recall any nation where a despot or tyrant willingly turned over power to a "representative government."

Nothing comes to mind. Perhaps one of the more low key constitutional monarchies, like Sweden, as the result of a long process of democratization? I'd have to do some reading on likely candidates. I suspect that I'd find economic collapse/diminished capacity to project force of the ruling group at the bottom of likely candidates. Certainly it's never happened out of steadfast goodness and rightousness aka rainbows and unicorn farts.

 

[JustinJ]

This one is still unanswered.

Geek, you have history background?

"Many countries" . . . "peaceful transfer" . . . ?

My history may be a little weak, but I don't recall this.

The Magna Carta was signed at the point of a sword.

I can't recall any nation where a despot or tyrant willingly turned over power to a "representative government."

Perhaps someone can help me out.

All you have to do is Google "peaceful transition to democracy". The examples are plenty.

 

[geekWithA.45]

A bit of googling later...


Unfortunately, a solid minority of hits in the first couple of pages are about diminished hopes for peaceful transitions to democracy...

Having said that, I did a bit of a skim on Spain and a few others. These tend to fit the "find economic collapse/diminished capacity to project force of the ruling group" pattern. More often than not, El Presidente Jeffe For Life High Mahoff Whoever died in his sleep of old age, and the subsequent night of long knives was restricted to upper echelons of power factions, who had a vested interest in preserving the economic basis of their prosperity, so the bomb flinging was kept to a dull roar.

FWIW.

 

[zorro45]

You left out Claymores!

 

[nyrifleman]

Does OP realize that most of the stuff he listed is legal to own, as long as you have the money? For example, flamethrowers don't even require a license of any sort.

Fighters or bombers loaded with bombs and rockets? It would be massively expensive, but it could probably be done. You'd need tax stamps for each piece of ordnance, but that's just a matter of paperwork. And this would be the ordinance. To the best of my knowledge, there are no laws governing ownership of the planes themselves (provided the company that manufactures them is legally able to sell to you... a lot of gov't contractors aren't allowed to... but that's not a LAW, just a contract).

It's funny that the most restrictions are, in fact, placed on the least destructive weapons.

Destroyers, battleships and carriers are governed by international maritime laws rather than US laws (unless you stick really close to the coast... not really practical on a large vessel). But again, the regulated bit would be the guns, and those can be owned with the proper paperwork.

So really, the only thing on that list that's absolutely illegal are the nukes.

 

[Warp]

Does OP realize that most of the stuff he listed is legal to own, as long as you have the money? For example, flamethrowers don't even require a license of any sort.

Fighters or bombers loaded with bombs and rockets? It would be massively expensive, but it could probably be done. You'd need tax stamps for each piece of ordnance, but that's just a matter of paperwork. And this would be the ordinance. To the best of my knowledge, there are no laws governing ownership of the planes themselves (provided the company that manufactures them is legally able to sell to you... a lot of gov't contractors aren't allowed to... but that's not a LAW, just a contract).

It's funny that the most restrictions are, in fact, placed on the least destructive weapons.

Destroyers, battleships and carriers are governed by international maritime laws rather than US laws (unless you stick really close to the coast... not really practical on a large vessel). But again, the regulated bit would be the guns, and those can be owned with the proper paperwork.

So really, the only thing on that list that's absolutely illegal are the nukes.

Annnnd therein lies the problem. If you must pay a tax while applying for a mommy may I permit, you are not exercising an un-infringed right. I believe we are talking about rights here.

 

[mortablunt]

@ArfinGreebly:

The Soviet Union ended fairly bloodlessly.
The Glorious Revolution led to the English Bill of Rights.
Don't forget that the Arab Spring is mostly being fought unsupported.
Charles Taylor took over Liberia by handing out Kalashnikovs to anyone who supported him.

 

[TSH77769]

To what weapons and equipment does the second amendment apply, what are the limtis?

This is actually a super easy question.

There are only 3 pieces of information needed to solve this question.

First, you need to know that the militia was expected to maintain and supply their own small arms and equipement. Then you need to know that the US was not originally intended to have a permanent professional Army. Lastly you need to read this quote from George Washington...

The Pennsylvania Gazette, Feb. 20, 1788
"Their swords, and every other terrible implement of the soldier, are the birthright of an American.

[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people"

Key words there are "every other terible implement of the soldier".

When you take all that together, it seems clear that the Second Amendment applies to all infantry gear man portable by a single soldier.

In case of emergency he grabs his gear puts it on and goes.

Machine guns? Yes. Hand grenades? Yes. RPG-7/LAW? Yes. Private tank? No. Private artillery? No.

Yes, I am aware that private ownership of artillery is possible (although effectively impossible to get any explosive rounds for). However, I am convinced under the aforementioned model that they would not be specifically protected under the second amendment.

TED

 

[geekWithA.45]

Private artillery? No.

YES.

I remember reading a reference to a journal of an revolutionary war era continental army officer that he had obtained his commission because he had passed a test in trigonometry, and had provided his own artillery.

Private naval artillery was even more common than land artillery. Granted, it wasn't something every merchant kept in his shed, but it wasn't unheard of.

 

[danprkr]

Were wealthy land owners at the time allowed their own personal cannon?

Not just wealthy, any one could. Only wealthy could afford it of course, but there was no restriction.

My limit, is when the populace is as well armed as the military(s) we were intended to defend ourselves from with those arms then we get to stop.

 

[JustinJ]

Unfortunately, a solid minority of hits in the first couple of pages are about diminished hopes for peaceful transitions to democracy...

Having said that, I did a bit of a skim on Spain and a few others. These tend to fit the "find economic collapse/diminished capacity to project force of the ruling group" pattern. More often than not, El Presidente Jeffe For Life High Mahoff Whoever died in his sleep of old age, and the subsequent night of long knives was restricted to upper echelons of power factions, who had a vested interest in preserving the economic basis of their prosperity, so the bomb flinging was kept to a dull roar.

Hungary, Russia and a number of other E. European countries have managed a transition without war. I'm not saying their democracies are perfect but who's is? There is a long paper easily found by googling the phrase i mentioned. Chile is another example that was quickly found. In Western Europe Sweden comes to mind but i'm fairly sure there are others.

 

[ArfinGreebly]

Inconceivable!

[Inigo]You keep using that word; I do not think it means what you think it means[/Inigo]

Ownership of arms and the ability to effectively stand against its government, should that government become oppressive, pretty much defines a free people.

Only a free people can be said to have a "representative government."

Is it your opinion that the countries you have cited are "free peoples?"

Because if that is so, then I think we will be talking past one another, and the discussion becomes meaningless.

 

[geekWithA.45]

The essential question was about whether old tyrannical orders peacefully yielded to democratic orders without force, or the threat of it.

Russia's old order (which we could argue was a democracy, mind you) fell apart, primarily an economic meltdown, but there was in fact a reactionary element that called TANKS into play to preserve the old order. The reactionaries wanted to fight, but the guys in the tanks switched sides and swivelled their turrets.

Hungary, (a country I've been to numerous times) benefitted greatly in their transition because they were the least messed up of the former Soviet client states, in large part due to the legacy of their 1956 uprising, and reformist "goulash communism". Considering I've met and spoken with patriotic hungarians who'd spent most of their live prior to 1990 in hiding because they had "made a hobby of blowing up (soviet) tanks" in their youth, we can't really say that force wasn't a factor. When the transition came, it really was in many ways an extension of their status quo, other than their commie party rebranding as socialists (Hungarian heavies have a long history of rebranding: First they were Arrow-Cross party (Hungarian Nazis) then they where Communists, now they are Socialists), and without the soviet patronage/threat of force, they lost their advantage and started to NOT automatically win elections.

Thing is, I'm sure there has to be a geniune, at least somewhat principled examples, but my point is that when you scratch the surface, they aren't nearly as common as people think they are.

At the end of the day, if viewed dispassionately, democracy is not automatically a tool of freedom or liberty. As often as not, it is a method/tool of sectarian or ideological oppression, and so ArfinGreebly correctly points out that a distinction is to be made between a free people and a democracy.


Whoever has the guns can take the gold, and whoever has the gold makes the rules. When you create and accept a dichotomy with one strata being disarmed, you can't avoid concluding that one strata is the master, and the other is not.

 

[Owen Sparks]

It is still possible to be a slave in a democracy. All it takes is 51% of the voters to subjugate you and take all you have. Ben Franklin said that a democracy is like two wolves and a sheep voting on what is for dinner. This country was set up to be a Constitutional Republic. In fact the word democracy appears nowhere in the Declaration of Independence or the Constitution. A republic recognizes certain unalienable rights of the individual that are not subject to the passions of the majority. Chief among these is your right to life. The right to own weapons is simply an extension of your right to life because weapons are tools that can prevent others from taking your life by force. Without the right to keep and bear arms you are at the mercy of the young, the strong or the many. Even if the many call themselves 'the government'.

 

[kludge]

Key words there are "every other terible implement of the soldier".

When you take all that together, it seems clear that the Second Amendment applies to all infantry gear man portable by a single soldier.

In case of emergency he grabs his gear puts it on and goes.

Machine guns? Yes. Hand grenades? Yes. RPG-7/LAW? Yes. Private tank? No. Private artillery? No.

Soldiers use and have used lots of other stuff, so I can't agree with this reasoning at all.

Where does the second amendment say a person has to be able to carry it?

No where.

It says "arms".

Cannons (the largest most destructive weapons of the day) were in private hands.

 

[Owen Sparks]

How could a lone nut case be a danger with a crew served weapon? Doesn't a tank require a driver and a gunner?