The Unlimited Right to Bear Arms

[Glenn E. Meyer]

General political theory is off topic.

Rope it back in to the RKBA or we are done.

No last words on general politics.

 

[zukiphile]

There is an element of common sense that we are supposed to have and if one thinks that the mentally unbalanced should have the same rights as the normal person, then that one who thinks that does not think logically.

It is not an absence of logic that would allow anyone to be armed. That is a substantive issue, not one of logical form.

Moreover what you or Ellis or I might imagine is common sense isn't a constitutional doctrine. The common sense has no place whatsoever in constitutional jurisprudence except as it may tangentially be presented in voting (the sense of the community being reflected in election results).

I would not want the public to have the right to buy a Stinger missile. I am satisfied with the laws re fully auto guns.

That also isn't a constitutional or legal framework.

None of those comments above are gratuitous; they pertain to the point.

Although we could discuss the various nuances regarding the issue, the point is that there is no unlimited right to bear arms.

I do not believe that correctly identifies the point.

Ellis argues against something of a strawman. He decries an opinion that is exceedingly rare and attributes this very rare view to some popular legislative acts.

Take 44AMP's position about the COTUS and restrictions on firearms. It only takes a couple of questions to see that his is a view of a very braod constitutional right within the framework of centuries old traditions and common law. He isn't advocating anarchy, but a robust right and a fair reading of the amendment describing the right.

In a conversation about modern gun restrictions, one might proclaim that he recognizes the legitimacy of none of them (such as a restriction of the shoulder thing that goes up), and that would be true as to the restrictions of the last half-century or so. This leaves in place restrictions against felons, incompetents and minors that are all part of the legitimate warp and weave of our legal and clinical history.

That is a long way from anarchy.

Moreover, Ellis engages in a jump from his libertarian anarchist strawman to the other extreme of a right subject to his version of common sense. Yet, a right that can be vetoed by the sense of the community is not a real right.

[Scalia in Heller writes]"Like most rights, the right secured by the Second Amendment is not unlimited…. Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

These caveats create a crack through which significant gun control legislation might flow. Indeed, expanded background checks and limits on automatic weapons, the key provisions in the post-Sandy Hook gun legislation debated (and defeated) by Congress earlier this year, fit comfortably within this space.

Emphasis added. Anyone who follows this issue will understand that automatic weapons are already very much limited. Moreover, Ellis' contention that a prohibition of a common type of firearm fits comfortably within Scalia's observation of restrictions applying to "felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" are qualitatively different.

The point is that Ellis misidentifies a real and vigourous civil right with an ahistorical lack of reason, and he does it for the convenience of his argument.

 

[Aguila Blanca]

I continue to hold the opinion that the SCOTUS (and Justice Scalia) were wrong in Heller. I understand that probably even none of the five justices who formed the majority in Heller were (or are) prepared to deal with the results of an honest interpretation of the 2A, that doesn't allow for any restrictions on the RKBA for people whose civil rights in general are not under restriction (such as felons in prison or on parole -- which is different from "ex" felons), so we've got what we've got and I acknowledge that we have to live with/under this interpretation.

That doesn't alter the fact that the language of the 2A itself doesn't leave any wiggle room to support "reasonable" regulations of the RKBA. A regulation is an infringement. The 2A says the RKBA shall not be infringed. It does NOT say "shall not be unreasonably infringed."

It's simple: while Heller helped us by recognizing that the RKBA is an individual right unrelated to military (or militia) service, it was wrong in saying that the RKBA is subject to reasonable regulation. The fact that other constitutional rights have historically been subject to restrictions is meaningless, a red herring. What other amendment in the Bill of Rights explicitly states a blanket prohibition against regulation?

Answer: "None."

 

[zukiphile]

That doesn't alter the fact that the language of the 2A itself doesn't leave any wiggle room to support "reasonable" regulations of the RKBA. A regulation is an infringement. The 2A says the RKBA shall not be infringed. It does NOT say "shall not be unreasonably infringed."

I just toss this out for discussion: the Second Amendment also does not say that it is incorporated into state constitutions. Incorporation is a judicial innovation.

A disqualification from exercising certain rights because one is a minor, a felon, a violent acts felon, or an incompetent are typically matters that fall first within state jurisdiction.

One could rationally hold that the Second Amendment is an absolute bar to federal infringement, while still allowing considerable state infringement. That would be a position consistent with federalist principle. While setting forth a position, I acknowledge that it is not consistent with the history of incorporation generally, or the current effort to enforce the announced incorporation of the Second Amendment.

We all have to work with the case law as it is announced, and it is entirely within the rules of fair play for even an ardent Federalist to argue the protection of a federal civil right against the state government where that civil right has been incorporated by the Supreme Court.

 

[OldMarksman]

The use, by individual citizens, of current language to interpret laws enacted more than two centuries ago may be entertaining, but it is of little if any value. It is of even less value when legal precedence is ignored.

Though the discussion was neither very specific nor exhaustive, the Court did state that some regulations have in fact been upheld under the Second Amendment and under state analogs.

Those who would argue the point might first look into such rulings.

 

[zukiphile]

Let's acknowledge that one can argue against the drift of precedent without ignoring it. In fact, it would be very difficult to argue against without reading it.

I will admit to very much enjoying a dissent written by Clarence Thomas on the issue of the scope of the interstate commerce clause in which he notes that a matter that takes place entirely within a state and is never bought or sold cannot be the subject of "interstate commerce".

Justice Thomas is certainly aware of precedent on that issue, but that does not preclude him from engaging in an analysis of the brief text at issue with an argument that goes to the heart of the decision in Wickard.

 

[44 AMP]

The issue of the right to arms is complex, and contains different salient points, or areas of focus, or as I mentioned before "levels".

There is the right to arms for personal protection. This is a natural right, and a individual right, the one that the Supreme Court focused on, in the Heller decision.

There is also the collective right to arms, for the protection of our nation. This is our right to arms for militia use.

For a long time the anti gun forces have pushed the idea that the collective right is the only one that exists, and also that it is neither particularly relevant nor needed today. And they held that our individual right was a fantasy in our own minds, and no amount of regulation (up to and including complete prohibition) of personal arms was any violation of our rights.

Heller changed that, affirming that we do possess the individual right. And, basically didn't do anything else. They agreed also that banning an entire class of arms actually was a violation of our right, and therefore unconstitutional.

Remember the function of the Supreme Court is not what most people popularly think it is. Supreme Court rulings are not to protect us from bad law. They are to protect us from unconstitutional law. There is a difference, and a significant one.

It has become blurred in the minds of many, probably due to the constant referral of any law struck down by the court as a "bad law".

There are many clear examples of bad law being found constitutional, in the case which was brought before the court. I think the ruling on the 1934 NFA act was a clear example. (of course, your opinion may differ)

Many assume that, when one speaks of an "unlimited" right to arms that it means every breathing soul armed to the greatest extent possible, which of course, is not what we mean.

I think what we ought to be discussing under title of "unlimited" (and we really need to find a better word..a little help here, guys?) is our right to those arms "not in common use" as Heller put it.

Military arms. Our right to militia arms, if you will. The anti's said we only had a right to militia arms, and wanted (and still want) to take our personal guns away. But in order to do that, they had to admit that we have a right to militia arms.

Heller says it is not unconstitutional to regulate arms "not in common use", but a complete ban is not allowed.

So here we are, somewhere between heaven and hell...

As I understand it, under existing Federal Law, providing you meet the legal requirements, you can own a main battle tank, or a jet fighter aircraft. Getting machine guns for that tank for fighter plane is a more complicated matter, as the supply of legal guns has been "fixed" at only those guns registered before May 19 1986.

You can own the bombs, missiles, and cannon shells, too. Each one registered individually, as a destructive device, under the applicable Federal laws and regulations. (as far as I know, the supply of these items is not "fixed" in law or regulation)

There are also rules and regulations, licenses and fees, etc. about owning and storing explosives. But not a complete prohibition.

Unless you are a prohibited person. A class that did not exist, on the Federal level until 1968. (the definition of which, and the application of same would be a discussion topic for different thread)

It appears to me, at this time, we still have the right to militia arms, in principle, but our exercise of that right is heavily infringed.

The issue of whether we need such a right is a different topic. The fact that only a few people in the nation have both the interest and the wherewithal to be able to exercise that right under our current system is also irrelevant.

thoughts?

 

[zukiphile]

As I understand it, under existing Federal Law, providing you meet the legal requirements, you can own a main battle tank, or a jet fighter aircraft.

***

thoughts?

My firm has a client with a warehouse in the country stuffed with artillery pieces and a couple of tanks. Another fellow down the street from my office has a MiG-17.

When I feel guilt over meandering focus that may have occurred in my own collection, I like to remember how much I have not spent that these men have.

 

[johnwilliamson062]

There is an element of common sense that we are supposed to have and if one thinks that the mentally unbalanced should have the same rights as the normal person, then that one who thinks that does not think logically.

The fallacy here is going along with the idea that depriving an unstable person of a firearm is going to make them a safe person. There is nothing stopping them from renting an Expedition and plowing through a group of kids at a bus change. My local school district changes buses at the same place same time every day. This results in over 100 kids being more or less lined up along a single stretch of sidewalk.

Sure, a 50 BMG would probably be a devastating weapon in such a scenario, but anyone with any common sense sees an Expedition at 80 MPH is more dangerous than even an M2.

If a person is not mentally stable enough to own a firearm or has committed past crimes that preclude them from being trusted with one, they should be otherwise limited such that owning a firearm is not an issue. As in a hospital or a prison.

They can still burn down a house with an innocent family or any other number of heinous crimes. The mass shootings and related gun crimes are simply the crimes glorified by media resulting in a fantasy of being famous following such acts.

 

[Skans]

Look at the definition of "infringe". It means "to act so as to limit or undermine (something); encroach on:

I believe that the drafters did intend, by using the word "infringe" to absolutely restrict the FEDERAL GOVERNMENT (which it was creating) from making any law that deals with firearms ownership. Clearly, the States and local governments could continue to regulate firearms as they saw fit.

So, the Federal Government has been unlawfully encroaching on the rights granted under the 2nd Amendment ever since the National Firearms Act of 1934.

On the other hand, I don't believe that the 2nd Amendment protects people from State laws that limit or restrict gun ownership. The 2nd Amendment did not seek to usurp the right to make gun laws away from the individual states.

 

[Frank Ettin]

...I believe that the drafters did intend, by using the word "infringe" to absolutely restrict the FEDERAL GOVERNMENT (which it was creating) from making any law that deals with firearms ownership. ...

So, the Federal Government has been unlawfully encroaching on the rights granted under the 2nd Amendment ever since the National Firearms Act of 1934.

On the other hand, I don't believe that the 2nd Amendment protects people from State laws that limit or restrict gun ownership....

However, your beliefs are in conflict with what the law actually is, and your beliefs do not change what the law actually is.

 

[Skans]

However, your beliefs are in conflict with what the law actually is, and your beliefs do not change what the law actually is.

My belief is in conflict with federal law, but not in conflict with the Constitution as written. The Federal gun laws are in conflict with the Constitution, but they either went unchallenged or the Supreme Court has "blessed" it in one manner or another.

 

[OldMarksman]

Posted by Skans: My belief is in conflict with federal law, but not in conflict with the Constitution as written. The Federal gun laws are in conflict with the Constitution, but they either went unchallenged or the Supreme Court has "blessed" it in one manner or another.

Your belief is unsupported.

Until District of Columbia v Heller, the applicable precedent was Miller v United States, which (1) upheld the National firearms Act and (2) justified that ruling on the basis of the opinion that the prefatory clause of the Amendment as written did in fact limit the scope of the operative clause of the Second Amendment.

On the other hand, I don't believe that the 2nd Amendment protects people from State laws that limit or restrict gun ownership. The 2nd Amendment did not seek to usurp the right to make gun laws away from the individual states.

Whatever the Second Amendment did or did not "seek to do" at the time of the ratification of the Constitution of the United States, your "belief" ignores the Fourteenth Amendment and the ruling in McDonald v Chicago.

An attempt by a layman to interpret, in isolation, either a single law or a single part of a law, using common dictionary definitions without consideration of legal precedence and without a knowledge of legal principles, is a useless exercise.

 

[Frank Ettin]

...My belief is in conflict with federal law, but not in conflict with the Constitution as written. The Federal gun laws are in conflict with the Constitution, but they either went unchallenged or the Supreme Court has "blessed" it in one manner or another.

Nope, that's not how it works. In the Constitution the Founding Fathers assigned the judicial power of the United States to the federal courts, including the authority to exercise that judicial power to decide, among other things, cases arising under the Constitution (Article III, Sections 1 and 2).

So at the end of the day, what matters is the opinions of the federal courts, not your beliefs. You might think a law conflicts with the Constitution, but if the Supreme Court doesn't, its opinion is what counts.

 

[Brian Pfleuger]

True thing, Frank, but that doesn't mean we have to agree or stopping fight for the opposite.

We recognize what is but we fight for what "should be".

Even when we can't agree on what "should be", is.

 

[44 AMP]

Miller v United States, which (1) upheld the National firearms Act and (2) justified that ruling on the basis of the opinion that the prefatory clause of the Amendment as written did in fact limit the scope of the operative clause of the Second Amendment.

What does #2 mean in common dictionary English?

 

[zukiphile]

That a court has valid constitutional authority to render binding and enforceable decisions cannot mean that analyses that depart from the Court's decisions are inherently defective, unsupported, or ignorant.

 

[OldMarksman]

Posed by 44 AMP: What does #2 mean in common dictionary English?

It means that according to Miller v United States, the right to keep and bear arms was limited to or by considerations having to do with the need to have a well regulated militia.

That was the common interpretation for ages, and it was the definitive one at the Federal level until District of Columbia v Heller.

 

[OldMarksman]

Posted by zukiphile: That a court has valid constitutional authority to render binding and enforceable decisions cannot mean that analyses that depart from the Court's decisions are inherently defective, unsupported, or ignorant.

The arguments presented by Gura and Levy demonstrate that very effectively.

 

[Frank Ettin]

True thing, Frank, but that doesn't mean we have to agree or stopping fight for the opposite....

True enough. But we must still understand the process and remain grounded in the legal reality.

The process is illustrated by following the path from Cruikshank to Miller to Emerson to Heller to McDonald. And the legal reality was that each step along that path was supported by solid and principled legal and historical argument -- not simple belief.