Do any limits pass constitutional muster?

[JuanCarlos]

The SA does not leave any room for doubt "shall not be infringed" .

Whether or not I agree with any restrictions is not the issue. The constitution is.

See: strict scrutiny.

That being said, since the founders secured and protected sovereignty in the hands of the people and the states (in that order), a few of those non infringing requirements would pass muster IF DONE BY THE STATES. The federal government was simply NEVER given the authority.

For starters, it's surprising exactly what can be interpreted as being within the federal government's authority; for instance they don't call it the "elastic clause" for nothing. I would be interested to see by what authority/interpretation the federal government draws its current power to regulate arms, though...I'm just not willing to state off-hand that no such (legal) rationalization can possibly exist.

There's also the fact that neither the OP nor many of the people who've replied mentioned the federal government. We could just as easily be talking about what the states could legally pass.

 

[snaptafar]

Section 8 of the Constitution specifically enumerates the powers Congress has. Conversely, the states' powers aren't enumerated, only their prohibitions are (section 10). So if a power is not prohibited to the state nor granted to the feds, it is therefore granted to the states. Given that and the 10th Amendment reaffirming who has the power, unless there's an interstate issue, the feds have no legitimate authority to get involved, PERIOD

 

[snaptafar]

why aren't the issue of radioactive materials, biological weapons, nerve agents, intercontinental ballistic missiles, or other weapons of MASS destruction mentioned in the Constitution?

Because they weren't known to exist at the time. Just like other forms of communicative expression outside speech and press weren't known.

To me it's simple. An individual right requires and individual to operate and control. Since WMDs aren't controllable by an individual (if at all), they're out as would anything else beyond the span of control of the individual. This would include mental incapacity. If you can't control yourself, you certainly don't need a weapon. I'm conflicted about the felon issue (no, I'm not one). I lean toward prohibiting just to felons of an aggravated offense. Martha Stewart is a felon. Does she pose a danger to society?

 

[Shane Tuttle]

You invented your rationalization out of thin air. You added something that's not there.

his is a legal question, but like most of the public, many of you didn't answer it in a LEGAL way, you answered it with your own personal preference.

Do you know me? Didn't think so. Quite the assertion for judging us based only what we write here...

 

[cold dead hands]

why aren't the issue of radioactive materials, biological weapons, nerve agents, intercontinental ballistic missiles, or other weapons of MASS destruction mentioned in the Constitution?

Aside from the fact that those things weren't a threat way back when, it boils down to money and knowledge.

How many people have the education/knowledge to make a WMD, chemical or otherwise? How many people know someone who could supply them? Pretty near close to zero percent and I say that making them an issue in terms of regular folks having them is akin to crying wolf.

Money...it takes a boatload of money to have the kinds of stuff that you guys claim no one should have. Seriously, when you consider the kind of dough it takes to buy an ICBM it isn't likely that someone who has the money will actually buy one. Rich people don't like to spend their money as it is, and they aren't likely to buy an ICBM just for bragging rights...especially when you consider that there is no way the government is going to let him be able to launch the thing. They are more afraid of him taking out D.C. then they are of him starting WWIII.

However, in the spirit of the 2A, I say anyone who can afford one, have one. If the idea that someone can wipe out the seat of government prevents tyranny, then so be it. Same goes for tanks and missles and whatever gets you all bent out shape cause you can't have one. People always want to deny the right to own something when they know they will never have the ability to own it themselves.

The 2A says ''ARMS''! It doesn't specify what kind of arms and it doesn't put limits on ownership.

I don't want some idiot stockpiling enough explosive to blow up my neighborhood, but it isn't forbidden in the USC. If the state decides to place limits then that is their right, but I would hope that such a restriction is limited to highly populated areas. If you have the money to stockpile explosives, then you have the money to live and store them out in a rural area.

Remember, the ''nut'' you fear today may be the one to help you fight tyranny tomorrow.

 

[cabin pressure]

Just out of curiosity Cabin Pressure, why aren't the issue of radioactive materials, biological weapons, nerve agents, intercontinental ballistic missiles, or other weapons of MASS destruction mentioned in the Constitution?

Whenever someone asks "why isn't this weapon mentioned in the constitution," I can tell they don't get it. They don't GET (what I've already clarified) that the federal government can ONLY do things it is granted authority to do (and not the other way around as most people feel-notice I didn't say think I said feel). Whether a particular weapon is "mentioned in the constitution" or not is so not the issue here, especially because the founders didn't have a crystal ball.

Further, do you assert it is OK for them to be available to the general public?

Wow I wish you would fully read a person's post before you respond. I'm not "asserting" a scenario of "ok VS. not ok" which is an OPINION and FANTASY discussion as opposed to a legal based discussion. I'm stating a clear legal fact (which I will repeat, but it sounds like I could repeat this 100 times and you'll still say the same thing): that the federal government was never granted the authority to stop or regulate the personal possession of ANY item of property by an individual citizen. A state can legally regulate a few things, but as for the feds, the authority to tell you what object you can and cannot possess is just not there, no matter how much you feel it is there. The second amendment (and the rest of the bill of rights) was added AFTER the constitution was ratified because the founders decided they wanted to make SURE that some things were never violated by the feel good masses who tend to look to federal power to take care of them (humanity has a nasty habit of demanding a king).

 

[Shane Tuttle]

Whether a particular weapon is "mentioned in the constitution" or not is so not the issue here, especially because the founders didn't have a crystal ball.

Exactly. And that's one reason why we have three branches of the gov't. for checks and balances. The Constitution isn't the ONLY bearing of what is best for running a country. The Framers' INTENT also has to come into the equation. The judicial branch interprets to the best of their knowledge and experience of these items to uphold the laws. Just because we may have amongst the finest judges on benches, you'll still get different formed opinions of what's written and the Originators' INTENT. This doesn't mean they or US say what our personal preference is.

 

[BillCA]

I knew this would be a fun discussion topic. It'd be even more fun in a Sunday BBQ or cocktail party situation.

Reading some of the posts, I see that rampage841512 and I are fairly close to agreement...frightening as that might be (just kidding rampage!)

11. Laws limiting AP pistol ammo and restricting tracer ammo.
-NO! Tracers are damn handy and BG w/ vest needs to be dealt w/ too.

I gotta disagree here. I think the state governments could show a compelling safety interest here. Limiting tracer ammo in states like CA, AZ, TX and other states where there is a high degree of fire hazard would seem to be in the best interests of everyone. Just take a look at some of the fires we had in CA this last summer. Combine dry weather, tinder dry brush and hot Santa Ana winds with some yahoo firing his belt-fed with tracers and several thousand homes could go up in flames.

12. Prohibit convicted felons possessing handguns or full-autos only.
Only violent felons otherwise the nonviolent felons should have all their rights restored once they served their time in jail or prison.

I dunno... a non-violent offender can be just as ugly. Some felon who swindles & cheats the elderly out of their homes and brutally uses the legal system to sieze their life's assets is just as vicious as a robber with a knife...perhaps more so when the elderly person loses faith in their legal rights.

the federal government was never granted the authority
to stop or regulate the personal possession of ANY item of
property by an individual citizen.

I disagree, based on the constitution. What are you basing your viewpoint upon?

Article I
Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

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.

My reading says that Congress can make laws that prohibit you from buying ...explosives, drugs, automobiles... at all or without a permit as long as Congress finds that it is for the "general welfare" of the U.S. and does not violate USC.

Just out of curiosity Cabin Pressure, why aren't the issue of radioactive materials, biological weapons, nerve agents, intercontinental ballistic missiles, or other weapons of MASS destruction mentioned in the Constitution?

Red herring argument
Telephones, telegraphs, e-mail and computer networks are not mentioned in the 1st & 4th amendment. That does not invalidate the idea of privacy in telephone conversations but it does permit restrictions against threatening emails or spreading network viruses.


On WMD's....

Rich people don't like to spend their money as it is, and they aren't likely to buy an ICBM just for bragging rights

Read about the private armies backed by the ultra-rich robber-barons in the 1800's. They spent money liberally to get what they wanted and supplied their armies with WMDs of the day--cannons, gatlings and more. A George Soros with a pair of nukes could hold the country hostage for some political change. (gads, what a frightening thought!) A wealthy investor in Japanese electronics could triple his wealth using a few EMP nukes at high altitude to wipe out millions of electronic devices.

 

[snaptafar]

welfare n. health, happiness, or prosperity; well-being.
provide v. to supply or make available, to make proviso

My reading says that Congress can make laws that prohibit you from buying ...explosives, drugs, automobiles... at all or without a permit as long as Congress finds that it is for the "general welfare" of the U.S. and does not violate USC.

Welfare in today's context also means organized efforts on the part of public or private organizations to benefit the poor, or simply public assistance. This is not the meaning of the word as used in the Constitution.

Take note of the position of the commas for the clauses.

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

The section is about collecting revenue to pay for items necessary to support defense and welfare of the populace. Defense doesn't need explanation but welfare was things like infrastructure, schools, fire stations, treasury, etc that would benefit people in general terms. Based on the wording, they collect revenue to make things available, not take them away.

 

[BillCA]

I'll add my $0.02 worth here on the specific items.

I think the following could all pass constitutional muster with the proper compelling government interest

• Instant background checks at time of purchase (w/in 60-90 minutes)
  The gov't is provided the type of arm: handgun, rifle, shotgun, MG, SMG and your ID info and the dealer's info only. If they can't clear you in a 60 minute time frame, take your purchase and go. If they find that you're actually prohibited later on, it becomes a law enforcement matter to come arrest you and sieze the offending weapon(s).
  Compelling interest: Preventing prohibited persons from purchasing arms. Least intrusive is to verify the person's ID and determine they are not prohibited within a reasonable timeframe.
  
• Registration at time of purchase only.
  Yes, I do think it would pass. But Congress would have to show a reason for collecting any data and for what use. It would have to be tied to some "militia" benefit I would think.
  
• Restrictions on storage of explosive munitions (e.g. not in residential zones).
  If possession of explosive artillery shells or munitions is permitted, I think we can see the wisdom of requiring special storage to avoid tragedies. Private and community bunkers could become a lucrative business. And no, we aren't talking about forcing you to store your 7.62 FMJ in a bunker, unless the projectiles are explosive.
  
• Prohibition possession of WMDs (nuclear, biological or lethal chemical).
  I think this was hashed out in the previous post. But I seriously doubt possession of WMDs would be permitted.
  
• Laws limiting AP pistol ammo and restricting tracer ammo.
  The states could make compelling public-safety arguments against tracers (fire hazard) and AP pistol rounds.
  
• Prohibit convicted felons possessing handguns or full-autos only.
  Here we're saying they can have long guns only, except full-autos. In essence, they can defend themselves, hunt, trap shoot, have an AR15 but not handguns or FA. My personal preference is this would apply to their first conviction(s) only. Repeat offenders lose even this limited 2A right based on the idea that jail and reduction of your rights didn't deter you the first time.
  
• Prohibiton against mental incompetents possessing firearms.
  Requires a legal process to declare someone incompetent or insane. Just because you are bipolar, depressed, etc. isn't enough. If you are judged to be dangerous to yourself or others, you should be under supervision and care.
• Limitations on purchase, storage of crew-served weapons (artillery, tanks, etc.)
  There might be limitations (instead of prohibitions) on the storage or operation of such devices. Such as storing the breechblock separately or requiring minimum security.

 

[snaptafar]

Side note.

but all duties, imposts and excises shall be uniform throughout the United States;

One could argue this clause makes the progressive income tax unconstitutional.

 

[snaptafar]

Regarding the discussion about things like nukes and the internet not being mentioned in the constitution.

The Constitution isn't about what people can do; it's about what governments can do. The Constitution was created to spell out the limited powers of government. This is reiterated in both the Ninth and Tenth Amendments (un-enumerated rights of the people and powers of the states and people respectively). So contrary to current federal government actions, just because something isn’t mentioned doesn’t automatically grant authority to the federal government. In fact, I would contend the feds should have to prove it has the constitutional authority and the states do not.

Problem is congress may pass any law they want because the constitution doesn’t require a law to be constitutional. It can only be deemed unconstitutional once challenged and the judicial branch makes the determination if it passes constitutional muster.

Back on topic; I believe restrictions are authorized but would think the state level is more prudent because of the Tenth Amendment except for interstate transactions.

 

[dwc1973]

#1 - only slightly inconvenient but inconvenience is not unconstitutional.

#2 - that would be convenient and not unconstitutional.

#3 - why not? a legitimate seller with credentials. if you are legit, they must aquit.

#4 - same as #3.

#5 - if you can enlist, then you should be able to purchase a firearm.

#6 - i can see it now, your howitzer in the garage and the mortar launcher on the front lawn by the pink flamingos. all of it protected by "no tresspassing" and "beware of dog" signs. if you are part of a well organized, state recognized militia made up of trained private citizens that have passed a state-ran background check (same as purchasing any firearm) and said effects are part of militia's arsenal, then fine....allow to be stored in approved, secured facility away from general public.

#7 - see #6.

#8 - should be self explanatory but....oh, and you forgot "dirty" bombs (not really a wmd but nasty). no, no, & no....constitutional or not....

#9 - if you don't secure your own dang guns then someone else will. your guns can keep you safe only if you keep them safe.

#10 - that's a joke regulation. it is undue process and unconstitutional. you must pass a background check to purchase a firearm but then you have to apply for a ccw permit to carry said weapon. background check at time of purchase should = permission to carry open or concealed.

#11 - uhh, except for some military and certain law enforcement agencies, the only people who would own a/p or tracer rounds would be the bad guys that like to wear body armor....uhh, like they do now.

#12 - "do the crime - do the time". no parole, if sentenced for 5/10/15/20/life, then serve it. after release, you are a free man/woman with a clean slate and full benefits. no p/o, no house arrest, no work release, no free meals (make them work for it like stamping my dam overpriced dmv plates),etc. what good does being sentenced for 10yrs and serving 5 do for anybody?

#13 - BACKGROUND check please!!!!!!!!!!!!!!!!!!

#14 - see #6 please.

#15 - see #11. same basic principles.

#16 - see all the above.

#17 - for the most part see all the above.

 

[cold dead hands]

Read about the private armies backed by the ultra-rich robber-barons in the 1800's. They spent money liberally to get what they wanted and supplied their armies with WMDs of the day--cannons, gatlings and more. A George Soros with a pair of nukes could hold the country hostage for some political change. (gads, what a frightening thought!) A wealthy investor in Japanese electronics could triple his wealth using a few EMP nukes at high altitude to wipe out millions of electronic devices.

A valid arguement, I will grant you that. But you have to consider that the difficulties to obtain modern WMD are still going to exist, even for the rich. Boeing isn't just going to hand over a missle and launcher just because some guy has the money. Boeing is even going to call the feds and tell them what happened. The feds will be sitting Mr. Rich Man down for a little talk that we commonly refer to as interogation.

There is a big difference between the rich raising their own armies back when there was no such thing as modern WMD's (nuclear, gasses, whatever) and now. There is too much government control and monitoring. Example: Some rich guy decides to start his own tank factory. Someone is going to notice and not having the proper permission is going to get him a lot of time at Club Fed. 200 years ago you get get away with having your own private foundry and factory if you had it in the right place. Now you cannot hide. Too many eyes in the sky.

Any ''decent, moral and honest'' government around the world will not allow a person to acquire the means to hold a country (or the world) hostage, nor are they going to allow the use of a weapon for simple financial gain. The problem we truly face is the governments themselves. They are willing to use the threat of WMD as a means to hold us hostage and have the ultimate financial gains by controlling the money.

If a monster weapon can be had legally and will not be used for evil, more power to the guy who can afford it. If spending 300 million dollars makes some guy gush when he says to his other rich buddies, ''I just got me a ICBM. I can't use it, but it sure is cool to have.'', then let him have it.
He is going to be paying for it until the end of time. Think of property taxes and upkeep just to start.

Besides which, what makes a rich weapons owner less trustworthy than a governmental weapons owner?

I used to know a guy who was a Ranger (for some reason the Marines at work always gave him a load of crap for that) who has about 100 acres in eastern OK. He makes the kind of money that he buys ordinance and pays his $200 tax stamp for each ''destructive device''. Every few months he takes a few out to the middle of his property and sets them off for fun.

I have no reason to distrust him. Apparently the feds don't either.

I think your fears about WMD are uncalled for.

 

[FirstFreedom]

Interesting question

I'll vote later; most of those DO pass muster IMO.

Couple examples: Background checks are constitutional, seems to me, AND a good idea.

But registration I think, IS also constitutional, but a really really bad idea.

 

[Bruxley]

Just out of curiosity Cabin Pressure, why aren't the issue of radioactive materials, biological weapons, nerve agents, intercontinental ballistic missiles, or other weapons of MASS destruction mentioned in the Constitution?

I put that out for 2 reasons. First, to point out that despite the great wisdom of the framers, it is impossible to expect them to anticipate such things would exist and that they couldn't have fathomed 'arms' that decimated huge areas and attacked people so indiscriminately. They have no defensive use other then deterrence of one nation to another by virtue of the M.A.D. principle. Your neighbor being insufficiently equipped or trained to handle these items isn't deterred from mishap by the knowledge that you can also kill everyone in the same city. You can't stop someone using a nuke by nuking then back more accuratly. Further, a nuke or bio-weapon isn't going to turn back tyranny as they also kill those fighting that tyranny.

Second, I was hoping that the point that the Federal Government IS charged with the 'General Welfare' of the United States. Mass biological and/or radioactive contamination is only a few mishaps away. This is among the most abused clauses by the Federal Government but it is in these kinds of instances exactly why it is valuable.

As one pontificating so boisterously about the posts of lesser respecters of the Constitution I was hoping that your knowledge would extend further then the BOR. I am happy to see that placing a little food for thought out there bore out the comments it did. Why make a case individually when there are so many members here with such depth of knowledge. This isn't a current event or recent issue after all.

As for your reply to this:

Further, do you assert it is OK for them to be available to the general public?

You asserted that NO RESTRICTION was the ONLY interpretation. It follows that the question be answered by you. It's not a 'fantasy scenario' if you contend that no restriction is Constitutional. State restriction acceptable then? By what authority as the Right is not to be infringed? States have no authority to limit your Constitutional rights. So......an answer is understandably avoided. To answer that it IS OK would be clearly irrational, to answer it is not would clearly conflict with:

To everyone who selected an infringement to the second amendment and rationalized that limit's constitutionality:

You invented your rationalization out of thin air. You added something that's not there.

That being said, since the founders secured and protected sovereignty in the hands of the people and the states (in that order), a few of those non infringing requirements would pass muster IF DONE BY THE STATES. Absolutely none of those pass constitutional muster at the federal level. The federal government was simply NEVER given the authority. It's not there. All the wishful thinking and touchy feely utopianism in the world doesn't change the fact that the federal government was just not given the authority to regulate personal possession of ANYTHING. It's just not there.

Constitutionally and legally incorrect.

Sweeping tie raids and sanctimony often get quickly, and typically less politely, checked here.

BTW: Good point about the tracers BillCA.

 

[justinbaby]

Ok, I guess it's my turn. Real simple for me, and not deep and enlightening:

1) Instant background checks -- Sure

4) FFL required for selling full auto weapons and explosives -- OK, but only because the consequences to innocent lives could become overwhelming.

5) minimum age limits to purchase firearms -- Sure, can't have 10 year old boys purchasing semi-autos. They can wait another 8 years.

7) Restrictions on storage of explosive munitions (e.g. not in residential zones). NO! I can see this turning into a ban on "load your own want to store a lousy few thousand rounds for yourself situation."

8) WMDs. No nukes.

11) Laws limiting AP pistol ammo and restricting tracer ammo. NO! I appreciate the west's fire problems, surely they can restrict the firing of the ammunition with stiff fines during dry season. But tracer ammo could become quite valuable in outdoor, open warfare situations, if it ever came to that.

Good thread

justinbaby

 

[TexasSeaRay]

Just out of curiosity Cabin Pressure, why aren't the issue of radioactive materials, biological weapons, nerve agents, intercontinental ballistic missiles, or other weapons of MASS destruction mentioned in the Constitution?

Why aren't the Internet, cable/satellite television, podcasts, et al, mentioned in the Constitution under the First Amendment?

Jeff

 

[Bob1911]

Ok, here is .02 worth.

My feeling is that a persons rights ONLY extend to the point that they negatively inflict themselves upon the rights of others and no farther.

An individual should be held responsible for their own actions and NOT be prohibited from owning what may be misused by someone else that acts irresponsibly in the future.

Individuals should be prevented if possible or prosecuted fully for whatever misdeed they have committed instead of for what object was used to do it.

With the above in mind, WMD would fall into this category and be prohibited. (infringing on others rights)

Convicted felons should be able to RKBA when their time has been served and they have had their rights restored.

Tanks, mortars, arty, fighters, explosives or any crew served weapons? No problem if you can afford to properly store, use or secure them, you are responsible for their use.

CCW or open carry? No permit needed (other than the 2A)

Age limits? Nope, the parents are responsible for training and discipline and determining the appropriate age for the kid individually.

Registration? Nope, nobodys d!@n bussines but mine!

Nics check? Only to verify eligibility. (no pending litigation or mental issues)

 

[Dead]

I have to vote "no restrictions"...

For WMD you have "lethal chemicals"... Certain combinations of ordinary household cleaners could be listed in that group... The other WMD items I would agree no one should own, not even governments.

As for the mental defective? Who would say who is mentally defective? I know for certain I would not want a politician making the rules on this as many of "them" are what I would consider mentally defective, and should be commited.

I would however have free training available to anyone that wants to learn how to safely use any arms the might have, as well as making "government" ranges open for public usage. As for the training it is available but not required, though I am sure that most everyone would take a few courses if it is free!