Heller, 2nd Amendment, Automatic Weapons etc.

[Hugh Damright]

the reason this right was set forth in the BoR was ... for the average person to be able to possess the weapons needed to defend themselves from ALL types of enemies

I don't see how that's right ... for the average person to be able to defend himself against any enemy would require a private military force. The requests for the Second Amendment ended with the assertion "that in all cases the military should be under strict subordination to and governed by the Civil power". I don't see how we can construe that to mean that the intent was for every individual to have his own military power.

[Garand Illusion]

The anti's take on this:

Anti Gun Hysteria

A sign of the mayhem ahead if the U.S. Supreme Court issues a ruling that sweeps away the right of states to enact gun control can be found in Kansas
...

But without the right of states to prohibit such sales, we would be – hypothetically – returning to the days of Al Capone style shootouts with automatic weapons. This would not just be devastating to citizens; it would severely increase the risks to our police officers

...

The potential availability of machine guns to just about any American is not a Constitutionally guaranteed right; it’s a recipe for carnage on a scale that we have yet to see.

Just look at what’s happening in Kansas and hope that the Supreme Court applies some common sense when it comes to our Constitutional right to be protected from gun madness.

[blhseawa]

Frankly, as I read this debate, I find myself wanting to repeat the following words; "keep and bear arms" and "shall not be infringed."

Any ban is an infringement. I don't think I need to say more.

Now, if the conversation is about regulation, that is a different kettle of fish. But, regulation can not under the SA include a ban.

If you want to ban any class of arms, the solution is simple, propose a constitutional amendment, get the senate, house and enough state legislatures to agree and you can ban anything you want.

Until then, the words like "need", "purpose of use", and even "military" and "militia" have no place in the conversation, and are not rational given the SA as it is written today!

That I believe is at the heart of this debate, people are not comfortable with the meaning of the SA and seek to limit it by trying to reinterpreting the SA.

IMHO, that is just silliness.

I really believe this issue is that simple.

[publius42]

TN Gent,

You answered one of my two questions. The other was: do you think it was unreasonable for the Founders of our country to want to own serious military hardware like cannons outside of the control or wishes of the government?

Your answer kind of implies that you do, since you believe it was reasonable for the British to want to disarm the colonists, but I did not want to make that assumption without asking for clarification. So, will you answer the second question?

[publius42]

But without the right of states to prohibit such sales, we would be – hypothetically – returning to the days of Al Capone style shootouts with automatic weapons. This would not just be devastating to citizens; it would severely increase the risks to our police officers

What is it with people who think machine guns are so dangerous, or machine gun owners will be so reckless? The 160,000 machine guns in civilian circulation have caused no such problems, and it has been pointed out that you can generally kill more people with an AR-15 than an M-16 on burst mode because the M-16 is harder to control and will run out of ammo faster.

[gc70]

Tennessee Gentleman
The types of "arms" we are talking about did not exist in the 18th century.

Correct; neither missiles, cartridge-firing revolvers and semi-automatic pistols, or breech-loading rifles existed (except experimentally) in the 18th century. If you do not advocate freezing the Second Amendment to the weaponry available at its writing, how do you propose to reasonably (legally) differentiate subsequent technological developments when the Second Amendment provides no guidance on that topic?

[gc70]

Tennessee Gentleman
How about Articles 1 section 2 and 4 section 2. Still think African Americans are considered three fifths of a person?

Slavery no longer exists, not as a result of a "living document" approach to Constitutional interpretation, but the Article 5 process of adopting the 13th, 14th, and 15th Amendments to the Constitution.

[docwatson]

The argument should be based on the following:

1) Under a 'militia basis' the manufacture, possession, transfer, and ownership of machine guns are protected because they are arms in 'common use' by the military. Dellinger conceded that point in his opening remarks and Justice Ginsberg brought it up as well. If we are using the contemporaneous examples as well as the descendant argument for militia weapons, then machine guns and - more radical peers of mine - artillery are the *prime* examples of what modern people should have in their homes and communities since early colonial settlers such as Pennsylvania banded together to purchase cannon and drilled with the Pennsylvania Rifle (itself the bleeding edge of technology for it’s time), so from a purely ‘militia’ view, an MG is just fine.

2) Under the 'individual rights' basis, the manufacture, possession, transfer, and ownership of machine guns are protected since the right to keep and bear arms is an individual right. The ability of the individual to be familiar and proficient with military arms is dependent on his or her individual ability to keep and bear them for use.

3) The purpose of the RKBA and the militia at their core is to ensure Liberty; the Second Amendment is the 'last resort' for a populace who no longer has a means for redress either in the Courts or in the Congress. It is the means of the populace overthrow a Tyrant or a Tyrannical government and restore the Constitution to the original framer's intent.

As it stands now, there are no challenges on the books on a 2A basis that I have been able to find after 2 years of looking and I haven't seen a single appeal to SCOTUS on that basis. This may change after June

[Tennessee Gentleman]

do you think it was unreasonable for the Founders of our country to want to own serious military hardware like cannons outside of the control or wishes of the government?

As you know when interpreting constitutional law the founder's intent has to be reconciled with the reality of modern times. You can't just say, what would the founders think becuase they had no idea of the advances of science or technology. I believe and particularly after listening to the oral arguments today on podcast that the founders wanted to insure that all of us had the right to keep and bear arms and the modern understanding is arms in common use for civilian self defense purposes. I don't think you will ever get a ruling to overturn the NFA or the FOPA. You might get FOPA repealed by legislation but not through 2nd Amendment avenues. So, no the founding fathers would not want civilian packing military weapons (other than those we commonly use now).

[Tennessee Gentleman]

how do you propose to reasonably (legally) differentiate subsequent technological developments when the Second Amendment provides no guidance on that topic?

I wrote:

arms in common use for civilian self defense purposes.

[Tennessee Gentleman]

What is it with people who think machine guns are so dangerous, or machine gun owners will be so reckless? The 160,000 machine guns in civilian circulation have caused no such problems, and it has been pointed out that you can generally kill more people with an AR-15 than an M-16 on burst mode because the M-16 is harder to control and will run out of ammo faster.

You make my point for me. Automatic weapons are unsuitable for civilian personal defense for reasons you and I have listed earlier. They are dangerous to use and are really for hobbyists I believe. Not worth our time.

[Tennessee Gentleman]

Any ban is an infringement. I don't think I need to say more.

I think you are wrong. There is a total ban on polygamy for instance (not regulation) and the courts have ruled it does not infringe on the freedom of religion. Things like certain types of firearms may be banned but the question before the court is what type of scrutiny should be applied. I hope it is strict and cause future gun control measure to be harder to pass. But there will be more. BTW does your ban infringement idea include stingers, land mines or just the weapons YOU like? Seems inconsistent.

[DonR101395]

I wrote:
Quote:
arms in common use for civilian self defense purposes.

Which may mean something if the second ammendment had to do only with self defense.

You make my point for me. Automatic weapons are unsuitable for civilian personal defense for reasons you and I have listed earlier. They are dangerous to use and are really for hobbyists I believe. Not worth our time.

Once again, it has nothing to do with self defense. All guns are dangerous. Luckily you're not a spokesman for us.


What are your thoughts on suppressors, SBR's, SBS's, DD's and AOW's? Do they fall within your self defense beliefs?

[docwatson]

We can already LEGALLY own Tanks, Artillery, Military Jets, Grenade Launchers, and Rocket Launchers - subject to licensing and taxation - so the current ban on MG ownership is contrary to what has historically been the case for 75 years.

922(o) was a bad law based upon some significant chicanery on the part of Hughes and Charlie Rangel (D-NY). It should never have been allowed into the bill and I blame the NRA for not catching it and calling it out to begin with.

As far as you not wanting someone to own a weapon based upon a perception of their socio-economic class or attitude is *EXACTLY* what started gun control in the first place in this country and is elitist at it's basest level. Your objection based upon current social ills is a sad parallel to the onerous historical excuses used to prohibit firearms for Jews, Blacks, Catholics, and my own ancestors, the Scottish Highlanders.

[gc70]

arms in common use for civilian self defense purposes.

'Arms in common civilian use' is a rhetorical device used in Heller to keep the court focused on the immediate issue of handguns in the home rather than roaming around wondering about machine guns and such.

The concept constitutes circular logic. A 'common use' standard allows the exclusion of technological advances; just ban the new technology and it can never become common. Such a ban would seem particularly susceptible to strict scrutiny.

There has already been substantial discussion of challenges to the closing of the machine gun registry following Heller. I guess we will all get to see how long 'arms in common civilian use' survives.

[Tennessee Gentleman]

922(o) was a bad law based upon some significant chicanery on the part of Hughes and Charlie Rangel (D-NY). It should never have been allowed into the bill and I blame the NRA for not catching it and calling it out to begin with.

They did catch it but and Reagan would have vetoed it but the NRA felt it more important to do the greatest good as those who do full auto aren't very plentiful.

Once again, it has nothing to do with self defense. All guns are dangerous. Luckily you're not a spokesman for us. What are your thoughts on suppressors, SBR's, SBS's, DD's and AOW's? Do they fall within your self defense beliefs?

Well, I wouldn't to be a spokeman for whoever "us" is, I just hope you're not a spokesman for me. A suppressor is not a firearm so I have no opinon of it. Don't know what all those acronyms are. Sorry, I thought I was a real gun nut too!

[Tennessee Gentleman]

As far as you not wanting someone to own a weapon based upon a perception of their socio-economic class or attitude is *EXACTLY* what started gun control in the first place in this country and is elitist at it's basest level. Your objection based upon current social ills is a sad parallel to the onerous historical excuses used to prohibit firearms for Jews, Blacks, Catholics, and my own ancestors, the Scottish Highlanders.

Not sure what you are getting at but I never made those comments.

[DonR101395]

A suppressor is not a firearm so I have no opinon of it. Don't know what all those acronyms are. Sorry, I thought I was a real gun nut too!

A suppressor is regulated under NFA just as a firearm i.e. serial numbered, taxed on the same forms and restricted the same as if it were an M16.
SBR=Short Barrel Rifle (barrel less than 16")
SBS= Short Barrel Shotgun (barrel less than 18")
DD=Destructive Device(anything from an M203 to a Street Sweeper shotgun)
AOW=All Other Weapons(anything from a pengun to a pistol grip shotgun with barrel less than 18")

[Tennessee Gentleman]

A suppressor is regulated under NFA just as a firearm i.e. serial numbered, taxed on the same forms and restricted the same as if it were an M16.
SBR=Short Barrel Rifle (barrel less than 16")
SBS= Short Barrel Shotgun (barrel less than 18")
DD=Destructive Device(anything from an M203 to a Street Sweeper shotgun)
AOW=All Other Weapons(anything from a pengun to a pistol grip shotgun with barrel less than 18")

Are they banned? If not I have no problem with them as hobby sort of stuff. I actually thought about getting a suppressor for my walther so I wouldn't need ear protection. But I have no problem with them being regulated like the other things. I don't have a problem BTW with people having those things (even tanks and flamethrowers) I just don't think they fall under the protection of the second amendment.

[Herbert]

I beleive that any outright ban would be unconsituational, but the weapon can be subject to regulation based on destructive potential. Obviously preventing individual ownership of weapons of mass destruction can be justified a necessary to the security of a free state. While I think the 1934 NFA may be able to be justified as a necessary, I think that the 1986 FOPA Ban on new machineguns cannot be justified as necessary, especially on a federal level. I would prefer strict scrutiny that would force the government to prove it necessary to place regulation on individual gun owner rights, and that the regulation was the least restrictive way to accomplish its objectives.

TG, What would be you disagreements with this standard?

[DonR101395]

Are they banned? If not I have no problem with them as hobby sort of stuff. I actually thought about getting a suppressor for my walther so I wouldn't need ear protection. But I have no problem with them being regulated like the other things. I don't have a problem BTW with people having those things (even tanks and flamethrowers) I just don't think they fall under the protection of the second amendment.

I was just curious given your post about machine guns. I have a lot of problemwith them being regulated, I guess maybe we even each other out. Accept for the fact that you're opinion would be applauded by the brady bunch and my opinion would be put in the crazy file by the same people. Why is it again that you don't believe they fall under the protection of the second ammendment?

[Tennessee Gentleman]

TG, What would be you disagreements with this standard?

None, I hope they adopt the strict scrutiny standard but I doubt they will.

Accept for the fact that you're opinion would be applauded by the brady bunch and my opinion would be put in the crazy file by the same people. Why is it again that you don't believe they fall under the protection of the second ammendment?

I don't give a rip what the brady bunch thinks or says. They are out of step with most. I don't see suppressors as 2a since they are not firearms. Honestly, I am not that sure about short barreled rifles or sawed off shotguns. I just see that sort of thing as collector/hobby stuff.

[DonR101395]

I don't give a rip what the brady bunch thinks or says. They are out of step with most.

Most except those legislators who keep championing their cause. The point being that they are thinking of plenty of legislation on their own; IMO we don't need gun owners encouraging/embracing anymore "reasonable restrictions". They have reasonably restricted me into paying tax on tools(NFA). They have reasonably restricted me into being forced to make a choice of paying exhorbinant prices for magazines and rifles or settling for buying their feel good measure guns that did nothing to reduce crime for 10 years(AWBl). They have reasonbly restricted me to the point that I am no longer reasonable. I will not be reasonable until all restrictions are removed. I will follow the law, but I will not be reasonable with those asking me to support any further legislation or embrace the current legislation unless it is legislation repealing any and all restrictions.

I don't see suppressors as 2a since they are not firearms. Honestly, I am not that sure about short barreled rifles or sawed off shotguns. I just see that sort of thing as collector/hobby stuff.

So you don't think there should be NFA regulation/restriction of suppressors because they aren't classified as firearms, but don't think there is a reason to own machine guns because they are dangerous?
Using that logic you also would be in favor of no restrictions for an M203 as well since they aren't classified as a firearm.

[Yellowfin]

Deregulation of suppressors would certainly be something I'd like to see. I'd love to be able to go to the range and not have the guy next to me throwing off my shots have the time because of a .357 banging away while I'm halfway through my trigger pull or adjusting my scopes and having the melody of a 7mm Mag next to me making me jump and twist 8 clicks when I want 2.

[Tennessee Gentleman]

Most except those legislators who keep championing their cause. The point being that they are thinking of plenty of legislation on their own; IMO we don't need gun owners encouraging/embracing anymore "reasonable restrictions". They have reasonably restricted me into paying tax on tools(NFA). They have reasonably restricted me into being forced to make a choice of paying exhorbinant prices for magazines and rifles or settling for buying their feel good measure guns that did nothing to reduce crime for 10 years(Brady Bill). They have reasonbly restricted me to the point that I am no longer reasonable. I will not be reasonable until all restrictions are removed. I will follow the law, but I will not be reasonable with those asking me to support any further legislation or embrace the current legislation unless it is legislation repealing any and all restrictions.

I feel your pain and understand what you are saying. However, I see that there is a violence problem now and even though I support CCW as one of the solutions I think we have got to put every obstacle we can to the loonies that are reading the d*mn newspapers, getting impressed and then going into a mall and shooting people. I really have a beef with the mental health looby who doesn't want mentally ill on the databases. We as gun owners can't just stand here and rage about machine guns when we have nuts buying guns legally and killing folks.

So you don't think there should be NFA regulation/restriction of suppressors because they aren't classified as firearms, but don't think there is a reason to own machine guns because they are dangerous?
Using that logic you also would be in favor of no restrictions for an M203 as well since they aren't classified as a firearm.

No I don't care about suppressors. No 2a protection of them though either. An M203 is definately a firearm.