2nd Amendment Regulation

[Tennessee Gentleman]

Man, I thought this thread was done. Well let me answer a few final comments.

What's appaling or offensive about it?

Because you are equating an extreme, evil and pernicious institution with the regulation of full auto weapons. I find the comparison offensive at worst, very poor thinking at best.

Unfortunately, there were several points that myself and others brought up which Tennessee Gentleman and Yukon Kid refused to address.

We addressed them but you don't like the answers we gave . Too bad. I and most other gun owners I believe (and I think the NRA) will never support the public having an unrestricted right to military weapons. I don't think the courts or legislatures will follow as well.

I think to continue debating any more would be circular but continue on if it pleases you.

 

[44 AMP]

Why are we (the public) not as honest and trustworthy

as we were before the magic year of 1934? Prior to 1934 we had unrestricted access to military weapons.

I no longer accept the argument that these weapons are too dangerous, or that they easily allow individuals to kill mass numbers of innocents. So do many other things that we do not restrict, regulate or prohibit our citizens.

One of the most famous gangland slayings of the Prohibition Era was the St. Valentine's Day Massacre. Seven gang members were killed, 7.

Last year, one deranged individual killed more than 4 times (nearly 5 times) as many innocent students with handguns. He was able to do so because the law ensured no law abiding citizen in the area would be armed, and because of the response time of armed authorities, AND because of a school policy to "lock down" everyone in place when danger threatens.

In September, 2001 a group of fanatics killed 3,000. They managed this without a machine gun. They did it without a sniper rifle. The did it without an "assault weapon", they did it without a Saturday Night Special, they did it without high capacity magazines, pistol grips, bayonet lugs, flash hiders, grenade launchers, heat shields, folding stocks or any other cosmetic features banned by a ridiculous law. in fact, the did it without any guns at all! Imagine that! All they had was small knives and fanatical determination.

The largest mass murder in this country done by a single individual was done with a gallon of gasoline and some matches! 96 people died in that nightclub fire.

Tell me again how machineguns in private hands are dangerous to the public at large.

I'll tell you where machineguns are a real and constant threat to public saftey in the USA. ON the TV and MOVIE SCREEN! In the constant stream of "action" movie propaganda churned out by the entertainment industry! Show people this kind of thing 24/7 (and we do) and you are not just entertaining them, you are training them! It may be at a below concious level, but I believe it has an effect. And don't bother to tell me that it has to be this way, because violence is what sells. It does sell, but so does Disney, and I can't remember too many machinegun shoot em ups in Disney movies.

I am not advocating govt action to stop violent entertainment, that would be wrong as well. They have a Constitutionally protected right to sell their product. What I am saying is that it would be better for all of us if in this age of constant unceasing media exposure if they chose to focus on less violent entertainment.

 

[Webleymkv]

Originally posted by Tennessee Gentleman

Because you are equating an extreme, evil and pernicious institution with the regulation of full auto weapons. I find the comparison offensive at worst, very poor thinking at best.

Exactly when did I ever say that excessive full auto regulation is as evil as slavery? I do believe that both are wrong, but I never called them equally evil. As a matter of fact, I very clearly explained the reasoning behind my comparison in post # 159.

We addressed them but you don't like the answers we gave .

I've yet to recieve an explanation as to why I must need something in order to have a right to own it. I've yet to see an explanation of just how a full-auto poses any more danger to public safety than less severely restricted firearms. You and Yukon Kid's explanations seem to boil down to "because they're dangerous," and "because you don't need one," but when those are challenged all you seem to be able to do is repeat them.

 

[USAFNoDak]

TG, do you support or disagree with the 86 ban on full autos? You seem to focus on the NFA of 34, and believe it will never be overturned. You support the NFA of 34, apparently because it puts more of a burden on the potential owners of select fire guns. OK, let's go with that for the sake of arguement. Was there a problem with "legal" ownership of select fire guns prior to 1986? There was not. So why did the federal government decide that there was a need to ban guns imported or manufactured after 1986? With instant background checks now being the law of the land, why shouldn't the 86 ban be lifted?

Please explain your reasoning regarding those particular questions.

 

[hpj3]

Most important part of Heller

One of the most important parts of the decision has gone almost un-noticed by most. In fact, many have stated that the issue of scrutiny was not addressed. However, it was - and in a most creative way:

Many current gun-control laws are likely to pass constitutional muster under the Heller doctrines, though further challenges to specific laws are likely. Roger Pilon, vice president for constitutional studies at the libertarian Cato Institute, pointed out to us that Justice Scalia's opinion included the stipulation that, in such cases, courts should not apply "rational basis," the lowest level of scrutiny, to such laws, since the right to keep and bear arms is a fundamental enumerated constitutional right, requiring strict scrutiny when a legislative body seeks to limit it.

"The core issue of "judicial scrutiny" is now established -- better than we had dreamed -- in what will be known as Famous Footnote #27 (p56). Laws impinging on the Second Amendment can receive no lower level of review than any other "specific enumerated right" such as free speech, the guarantee against double jeopardy or the right to counsel (the Court's list of examples).

This is a tremendous win, and overlooked in all initial reviews I've seen. Attorney Mike Anthony was the first to spot it, way to go Mike. "Strict scrutiny," which many folks sought, is a term without formal definition that could prove problematic. I was hoping for a test of some sort and got more than I hoped for. By recognizing 2A as a "specific enumerated right" the majority ties 2A to the rigid standards and precedents of our most cherished rights. That's as strong as there is. Very clever indeed."

Despite the critics, it appears that we have gained much more than many realize.

Howard

 

[Socrates]

Thanks Howard. I missed that, and it's HUGE>

I did see Scalia making fun of the minority with their low level, new scrutiny, designed, much like the standard they tried to use for the commerce clause, to give no limits, in Lopez. 1995

The major problem with all these 'chipper' laws has been how do you get harm, and how do you attack them?

Scalia just solved all that, with strict scrutiny as the as standard for law review.

I hope I live long enough to see all the crappy Kali laws go down....

 

[publius42]

The footnote

JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

 

[hpj3]

Tennessee Gentleman
"...support to legalize without restrictions those NFA weapons. I maintain that those weapons were designed for military use and are not suitable for civilian self-defense and so I don't think the second amendment applies. My two cents."

The only point I can add here is that the 2A was not penned for "civilian self defense" specifically... and should not be looked at in such a manner.


Howard

 

[Tennessee Gentleman]

The only point I can add here is that the 2A was not penned for "civilian self defense" specifically... and should not be looked at in such a manner.

Agreed, however, the militia no longer exists but we still have a right to bear arms independent of that says Heller. I think that Scalia well put it on page 56 when he said:

that modern developments have limited the degree of fit between the prefactory clause and the protected right

That is why I believe it is reasonable and constitutional to limit or ban civilian access to most military weapons.

Most of the arguments I see on here are from what I call extremists who believe that by being a part of the "unorganized militia" they have a right to own without restriction (or as long as they don't hurt anybody) any military weapon they can afford to buy.

Militias, by definition of our constitution are organized, disciplined armed forces. Not a of bunch gun enthusiasts with stingers and grenade launchers living around the nation answerable to no chain of command or military structure. That is not a militia. Actually, the unorganized militia other than being a pool of manpower from which our standing armies can draw has no duties I am aware of prescribed by law.

There are some so-called "New Militias" out there in some states but they are unauthorized voluntary paramilitary organizations. New militias say they are subordinate to civilian authority, but that is not true. Not a single new militia group has its senior officers militarily subordinate to militia officers appointed by the state. None that I have read about can show that there is a chain of command that starts with the governor or the legislature and can be followed down to one of these groups.

 

[Jermtheory]

an "organized militia" is only formed by having an "unorganized militia" to be born from.thats exactly why it is an individual right and why the militia and the individual are one in the same.

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

see how simple that really is?...

militia = necessarry for a free state

the people being armed = necessarry for a militia

 

[44 AMP]

I do not object to "reasonable" restrictions......

Those same "reasonable" restrictions we have had in place for purchase of all other weapons for quite some time. NO Felony record, NOT adjudicated mentally defective, NO outstanding warrants. Beyond that, no.

No extra restrictions on machine guns, short barreled guns, even those dreaded "silencers" (which are required by law in some European countries).

Ideally, we should have no restrictions at all, being a free people, and having a fundamental right. However, I recognize that many are irresponsible, and even though laws against killing for fun and profit ought to be enough, some restrictions are reasonable, and do not constitute onerous prior restraint.

What I do object to is the idea that because some firearms are somehow considered "evil" that they must have much greater restictions on ownership.

No bullet kills more than dead. You are not worse off being killed by a machinegun than you are having your throat slit by a boxcutter!

As to the argument about "military weapons", that,

those weapons were designed for military use and are not suitable for civilian self-defense

I would like to point out that the purpose of military weapons, and indeed of the military in total is to provide for civilian defense. To believe that the hundreds of thousands of former servicemen and women somehow magically become incompetant and unable to manage these same weapons they carried when in uniform when they are not wearing govt issue clothing is not rational. And for each former serviceman, there are dozens of equally competant individuals who have never worn a uniform.

While it appears that there is no current pressing need for defense against an invading foreign power or a tyrannical US govt, suggesting that we be forever barred by law from possessing the most effective and efficient means of defense from such entities is akin to the turn of the century Patent Office clerk that suggested that the Patent Office be closed "because everything had already been invented".

No man can see the future, no system of government is infallible, nor has one proven permanent. In the 20th century alone, several governments became dictatorships, and great hardships for the entire world resulted from that. Had the people of those nations both the will and the tools to resist, things would have turned out quite differently.

Background checks to demonstrate that you are not a danger to yourself or others I can agree with. Outright prohibition of access to military class weapons to US citizens, I cannot.

 

[Tennessee Gentleman]

an "organized militia" is only formed by having an "unorganized militia" to be born from.thats exactly why it is an individual right and why the militia and the individual are one in the same

No the militia and the individual are not the same. A bumper is not a car. An individual MAY become a part of the organized (military) militia.

see how simple that really is?...

Yes, I do! If you want to play with machine guns, stingers and grenade launchers and avoid the NFA...join the military! I did and had a great time for 21 years

No bullet kills more than dead. You are not worse off being killed by a machinegun than you are having your throat slit by a boxcutter!

True, but I can kill and wound a hell of lot more people in a lot shorter time with a machine gun.

Beyond that, no.

Your opinion. That's fine, the Supreme Court and Congress disagree. Get Congress to repeal the NFA and all will be well. Won't happen in our lifetime I bet.

I would like to point out that the purpose of military weapons, and indeed of the military in total is to provide for civilian defense.

Agreed! Such defense provided by... the military. Join up!

To believe that the hundreds of thousands of former servicemen and women somehow magically become incompetant and unable to manage these same weapons they carried when in uniform when they are not wearing govt issue clothing is not rational. And for each former serviceman, there are dozens of equally competant individuals who have never worn a uniform.

So, no NFA only for ex-military(assuming they used these weapons and can prove competency), and how would you determine which civilians were competent? Would they have to take a test? Who would administer it?

Seriously, the issue I feel about military weapons is more about control and accountability. Many gun owners who never were in the military labor under the misconception that soldiers on active duty have uncontrolled access to the weapons they are assigned. Not true. Soldiers don't own those weapons, the government does. An Army specialist cannot wake up each morning and say "Hell, I think I'll take the Abrams out for a spin today." You can't even take a HUMMV out without a dispatch (permission).

What scares me about the extremists is that they'll let a guy like a Joe Horn get a rocket launcher and then he decides to play cop and fires it off in my neighborhood and kills a lot of people. Yeah, he'll pay for it but I'd rather him be limited to the shotgun he used and just kill (albeit wrongly IMHO) just the burglars. The military answers to a rank structure and chain of command and that is NOT the same as civilians under law. Much more disciplined and they are mandatorily trained and not allowed to use the weapons if the don't show competency. A civilian, Remington Ranger, would have none of that control and be I think a menace to the public with the type access you espouse.

While it appears that there is no current pressing need for defense against an invading foreign power

Not likely with the nukes we have. However, if they do invade then we can break into the NG armories a' la Red Dawn and fight 'em off with howitzers!

 

[gordo_gun_guy]

And for each former serviceman, there are dozens of equally competant individuals who have never worn a uniform.

+1. I'm humbled and honored by all those I serve with, but honestly--excepting a few "special" folks and some former civilian marksmen--my civilian friends are far more adept with small arms. They wouldn't know the first thing about military combat, but I could trust them to be unsupervised on a range with a 240 and a few cans of 7.62--something I'd only let my airmen do with an experienced NCO riding heard

TG, how to say this properly? What is magical about military members and sworn law officers is that they volunteered to give everything, including their lives, for their nation or their community. What is absolutely not magical about them is their natural human abilities or the depth of their training. Uncle Sam teaches enough weapons disclipline and marksmanship to craft the most effective fighting force the world has ever seen. But, in terms of individual weapons prowess, this institutional instruction is not even close to what a self-motivated civilian firearms enthusiast can learn in his spare time, and it sure isn't ingrained nearly as much as lessons passed from father to son.

Short version: unlike in Tom Clancy novels, my experience is that Bubba shoots way better than (conventional) Joe.

At any rate, actual proficiency aside, at what point did we decide only folks in uniform may be trusted with lethal force? When did being a good citizen lose the connotation of being willing to step in and stop a crime or aid a stranger?

 

[Tennessee Gentleman]

What is magical about military members and sworn law officers is that they volunteered to give everything, including their lives, for their nation or their community.

Nothing. They have agreed to serve as I did and are subject to authority that civilians are not.

They wouldn't know the first thing about military combat,

You make my point. Those weapons were designed for military combat and civilians aren't trained for that. These weapons are not suitable for civilian self defense and therefore shouldn't be in any civilian hands. Combat is not for a bunch of bubbas, undisciplined and accountable to no one. It is tough work with LOTS of training and practice and not just marksmanship. This is not JUST about going to the range. Although, at my range in TN we have had problems with people there using full auto and had to restrict it because they were tearing up the range and frightening the neighbors.

at what point did we decide only folks in uniform may be trusted with lethal force? When did being a good citizen lose the connotation of being willing to step in and stop a crime or aid a stranger?

We didn't. You have the tools and the ability with the weapons you can buy with little restriction today that can allow you (if you choose) to do just that. Jawboning for the unrestricted right to military weapons is not necessary and hurts our cause with the non-gun owning public.

 

[Jermtheory]

if you wish to argue that the 2nd should no longer apply,than make your case.but dont try to twist the unambiguous meaning of...

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

its quite clear that what they meant,was that an armed populace is necessary to form your "organized militia" in times of need...as they did in their time.

Combat is not for a bunch of bubbas, undisciplined and accountable to no one.

you mean like the same "bubbas" who came together to win our independence from a better trained and more disciplined force?

do you need a list of the numerous examples of what "untrained bubbas" are capable of with the proper motivation?often times against far better trained and equipped opposition.there are many,from recent times to ancient.

 

[Al Norris]

A civilian, Remington Ranger, would have none of that control and be I think a menace to the public with the type access you espouse.

This has been the gist of your entire argument from the beginning. It also illustrates the two problems many of us have with folks who think as you do.

1)Above all else, you must have control. Control is order. No control is chaos. It's a faulty assumption, as control always limits freedoms.

2)You think, but you do not know. So you pass a law to limit what a civilian may do on the premise that without the law, the civilian may commit some harm to another. Another faulty assumption, as the vast majority of people are in fact, law-abiding. Limiting the Liberty of the people because of what an extremely small number of people may do, is nothing more than mass punishment - good for a police state, but not a free people.

Personally, I see the '86 Hughes amendment (18-922(o)) being ruled unconstitutional. But only after incorporation and several other types of firearms bans being knocked down and precedents are set. I don't see the NFA being overturned. That particular regulation will be found constitutional, even under strict judicial scrutiny.

 

[tyme]

That is why I believe it is reasonable and constitutional to limit or ban civilian access to most military weapons.

The war on drugs and the massive expansion of government power since 1937 seems to give just about everyone amnesia with regard to constitutionality.

What you propose is not constitutional currently at the federal level, no matter what you believe. It would require a constitutional amendment. TBH, any serious attempt to revoke, limit, or modify the BOR through a new constitutional amendment would be a call to revolution for a lot of people. It's a matter of the libertarian principles behind the Constitution. Amending the Constitution in violation of those principles would be treason against the intentions of the founders, regardless of the fact that the amendment process (if followed) is by definition constitutional.

 

[Webleymkv]

TG, in the Heller opinion, Scalia basically says that the preferatory clause is more an explanation of the amendments purpose rather than instructions for its execution. As a matter of fact, he states that it could be read as "Because a well regulated militia is necessary to the security of a free state, the right to keep and bear arms shall not be infringed." Regardless of my membership to a mlitia (organized or otherwise), I am still entitled to the full protection of the 2A. Also, in his examples of reasonable regulation, he mentions prohibition of ownership to violent criminals or the insane and prohibition of carrying weapons in certain areas (like government buildings). He does not mention the restriction of certain types of firearms at all. The only time that the Supreme Court has ever ruled on a NFA case was the 1939 Miller decision (to which the neither the defendants nor their legal counsel appeared before the court) in which it was ruled that prosecution for the transport on unlisenced sawn-off shotguns was constitutional. This was based upon the premise that military weapons protected by 2A must be suitable for use by the militia and that the weapons in question had never been used by a militia. Honestly, I don't think it'd impossible to overturn this decision should it be brought before a conservative court because A) it could be argued that because short-barrel shotguns and machineguns are in common use by the military that they are indeed suitable for use by the militia (afterall, does the militia not act as a military force) and B) the court could hear both sides of the argument this time around. As far as Heller is concerned basically, the decision places the burden of proof on the government (where it should be) so that in order to enact a gun control law, they must be able to demonstrate how it benefits the common good. I still have as of yet to see an explanation of how a full-auto in the hands of a law abiding citizen represents any more public safety hazard than a regular firearm. Using the Heller decision as a precedent, it could be argued that the gov't must demonstrate a need to restrict me from owning a full-auto rather than me demonstrating a need to have one. Given the political leanings of those on the court, however, it would seem to be prudent to wait for a larger conservative majority before bringing such an issue before SCOTUS.

 

[Tennessee Gentleman]

This has been the gist of your entire argument from the beginning. It also illustrates the two problems many of us have with folks who think as you do.
1)Above all else, you must have control. Control is order. No control is chaos. It's a faulty assumption, as control always limits freedoms.

I agree that we may be identifying the point where we diverge. I seems to me that you Antipas and many on this board are libertarians. I am not. That's OK, I like some of the things libertarians like and dislike others. Control does limit freedom and sometimes that is good. Like street lights and speed limits. However, I believe that we give up some of our rights for living in a civilized society. If a man wrongs me then I have a legal process that I will undertake to remedy it. You would pull out your gun and go shoot him I guess but I don't believe in that. We have courts and elected officials and a government and I like that setup. Some don't.

The bigger question and concern to me is that all people who own guns and love shooting don't necessarily think like you do and I think although outnumbered on this board I'll continue to make the case for other points of view. I don't sit around thinking of ways to go and shoot people to "protect my honor" or protect a big screen TV. I have served in combat and seen plenty of killing but I think many of those who post here have not really seen it or they wouldn't applaud some of the stuff they do.

Limiting the Liberty of the people because of what an extremely small number of people may do, is nothing more than mass punishment - good for a police state, but not a free people.

This is just poppycock. Not allowing full access to military weapons by any and all civilians is not part of a police state. It is an assesment of risk that the public elected officials have made about those weapons and restricted them as a result. Change the law if you don't like it. You have a vote just like I do. The same risk assessment led TN to have a max speed limit of 70 mph. A libertarian as you apprently are would say: "Let 'em drive however fast they want to. We can't stop em' anyway and we can't punish all for the few fools who will cause wrecks." I disagree. BTW before you thorw htis out. There are speed limits on the autobahn in Germany. I got a ticket for speeding there once.

Personally, I see the '86 Hughes amendment (18-922(o)) being ruled unconstitutional.

Believe it or not I think that law was pretty dumb. All it did was raise the price of full autos and was Charlie Rangel's way of giving the NRA the "bird". I don't think it will be overturned but we'll see. My bet is that it won't.

He does not mention the restriction of certain types of firearms at all.

Yeah he did:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

it could be argued that because short-barrel shotguns and machineguns are in common use by the military that they are indeed suitable for use by the militia (afterall, does the militia not act as a military force)

There is no militia in existence that acts as a military force. Scalia said that the right to keep and bear an arm in common use was not predecated on membership in a militia.

 

[Socrates]

TG:
Move to Kali.
That should cure you.