The right to bear arms

Your first comment is right. The 14th (see Stephan Halbrook's new book) was viewed as establishing federal citizenship which implied all (previously-held) state citizenship rights, including gun ownership. This was needed, it was thought, to ensure the freedmen had their guns.

So I don't know if I'm not being clear or you are trying to be deliberately antagonistic. The basic "neo-Confederate" position is that the Constitution was "legal" only in the "compact" understanding in which the SOVEREIGN STATES agreed in a "mens' club" to join together for certain activities. When the federal government became onerous, they withdrew from the compact. States are sovereign (thus, the Bill of Rights, in this view, can ONLY be "confirming" of existing STATE rights, not the source of them).

Therefore, the citizenship extended to Americans was only valid if FIRST extended by a state. Slaves could not be citizens unless South Carolina first permitted it.

But what SOME pro-gun people on the board have done is to embrace the universality of the 14th Amendment while still trying to retain the "sovereign states" view of the neo-Confederates. I'm just saying that you can't have both.

My view is that the Constitution was NOT a "compact," but a unifying, wholistic document similar to Christian marriage, where each became in a sense part of the other. States retained powers, as enumerated, but after the Constitution, no one state could leave without destroying the whole, sort of like "un-mixing a cake." Thus, I maintain that the 2nd Amendment protects gun rights as a federal right, not a state right. However, I am realistic enough to know that courts do not interpret it that way, and have widely accepted the (ironically) neo-Confederates' arguments that states and municipalities DO have the right to supercede the Constitution. This is what I find ironic.

Ok, let's back up. The issue is whether states or municipalities have the right to regulate firearms in ANY way. I maintain that within certain narrowly-defined parameters, they do. For example, there were in almost all the colonies regulations against DISCHARGING a gun within the town. That isn't ownership, but it was certainly the authorities telling you what you could do.

Other colonies REQUIRED you to have gun and powder, even in church. But watch out: legally, what a state or city can REQUIRE, it can by reverse reasoning (under the law) also deny. So there were many precedents that laid the groundwork for the view that municipalities could regulate firearms without (150 years later) infringing on what was viewed as the "right to bear arms."

This all goes to the INTENT of the 2d Amendment, which was twofold: every man should be armed for defense of the colonies against Indians, French, and British; and every man should be allowed to possess weapons for self defense, most notably a musket or, later, pistol. This apparently did NOT include cannons, which were usually retained by the MUNICIPALITY, which raises the argument that larger-scale weapons "above and beyond" what was needed for self-defense COULD be regulated, and that the "right to bear arms" did not include a cannon (necessarily) nor (by logic, in our day, a .50-cal automatic machine gun).

I'm not arguing the "rightness" of these views, but would appreciate it if you pay at least some attention to the reality of the laws, especially those setting the context for the 2nd Amend, which is what your Washington D.C. case involves.

See, there you go again bringing up the colonies. The colonies were run by dicators who told you what to do and when to do it.

Discharging a firearm within city limits could be simply disturbing the peace and there would never be a "gun law" to cover that. Owning a working muzzle loading cannon is no big deal and I know at least three people who own them without any sorts of paperwork. I also fired two of those cannons with blanks within city limits with no permission from the police or authorities. We weren't disturbing the peace so what we did was perfectly legal. If we had a decent backstop, firing live wouldn't have disturbed the peace.

Owning a M2 .50 is legal in Texas and should be legal in all states. The only misuse of a legal machine gun occurred years ago and it was by a police officer. The ban on machine guns is a violation of the Second Amendment.

The reality is that every single gun law in the United States is a violation of the Second Amendment.

The only misuse of a legal machine gun occurred years ago and it was by a police officer.

Yep. I believe he shot an informant.

The ban on machine guns is a violation of the Second Amendment. The reality is that every single gun law in the United States is a violation of the Second Amendment.

Well, I'd say that 99% are. It should take probably fewer than a dozen laws to outline the illegal use of a firearm.

Well, I'd say that 99% are. It should take probably fewer than a dozen laws to outline the illegal use of a firearm.

I can't think of too many that are necessary. If something is mechanically dangerous, that's for the market to decide. If a person suddenly causes a disturbance and threatens someone with a chair, we don't enact chair laws. When the law makers finally understand that a gun is no more a weapon than a broken bottle, we may finally stop this nonsense.

When the law makers finally understand that a gun is no more a weapon than a broken bottle, we may finally stop this nonsense.

I can't say I disagree, but there are still a few laws needed. One obvious law is some age limit for who a gun can be sold to. I don't know if it should be 16 or what. Now, that would not preclude a parent from buying a gun for their child, but I would say that children at least up to 13 or 14 need parental supervision.

I also think that "reckless discharge" is a different concept by itself, and would not simply fall under "public disturbance" or "public nuisance".

But, I have to say you have a point in that "reckless endangerment" is what it is, regardless if it involves a gun, or a car, or a boat or whatever. You make a very valid point that the gun should be ignored and the actual violation of rights is what should be punished.

Have the current laws stopped any teenager from getting a gun if they wanted one? That's my point. "Gun" laws haven't done anything.

No, they do not "stop" the criminal, but they proscribe punishments. The only laws needed are ones that say "X" will happen to you if you do "Y". I think laws detailing the punishment for reckless discharge and selling to a person under the required age are two laws that are needed.

`Are you saying that CA has the constitutional power to 'regulate' the possession of semi-auto weapons?

39 posted by tpaine

I am saying that there is case law in England and colonial America to suggest that the "right to bear arms" did not include heavy weapons or arms considered outside the norm for self defense.

Just as I am sure there are many more examples of the opposite position.

I think there can be a good Constitutional argument made, based on the INTENTION of the Founders, that every community itself maintain sufficient "heavy weapons"---in addition to individually owned small arms---to offset whatever military force the government might have.

OK, you are making a case for a well regulated milita. Fine.

For ex, I think it reasonable that, say, the City of Dayton have a couple of M-1 tanks maintained by the city, and that if every city in the nation had such firepower, there would never be a chance of tyranny by the Feds. BUT it would be narrow-minded and rather blind to ignore the case law and English tradition, as well as some colonial law, of DISTINGUISHING between personal weapons and heavy combat weapons that were thought to be for reasons other than self defense.
Otherwise, you cannot explain the enthusiasm of governments for, on the one hand, arming men with small arms, yet on the other hand restricting the availability of first crossbows, then, later, cannon.

I ignored your first comment on 'cannon restriction', -- but it is simply not true historically, -- or even in most states today. -- And regardless, it is hardly a basis for the prohibitive 'regulations' now, in CA, on semi-auto weapons.

I asked you a simple question above. -- You've danced about quite a bit, -- but I fear that your simple answer is 'yes'. ---- Incredibily, - to me anyway, -- you are not alone here at FR, -I've argued this point with at least a dozen conservatives who think roughly the same as you. - Thanks.

No, I don't think you do understand. I personally support a broad interpretation of the 2d Amendment that would give me the right to own a tank. But that also has to be balanced with the "local government" issues of the Constitution. If the two are in conflict, I would choose to let states and localities be the final arbiter. Under that rule, I am confident that there would ALWAYS be a place where I could go to own whatever weapons I wanted, and at the same time, such an interpretation would reinforce the truly federal elements of the Constitution.

I think that by the loosest reading of the Constitution on some of its parts, you in turn sacrifice the ability of states and localities to govern themselves. So would I sacrifice the right to own an automatic weapons if it retains (or enhances) the integrity and independence of LOCAL authorities? Yes. I think that is a pretty good trade, espectially under the circumstances I've outlined earlier. Competition in the law is always desirable for the cause of freedom, especially so if CA institutes whatever laws it wants and, say, AZ enacts just the opposite laws. One would quickly find the safest and most crime-free states, and, in the end, the matter would take care of itself. In the meantime, in a WIDE variety of other areas, such as education, abortion, etc., the vitality of state and localities would be vastly better off.

You are trying to have it both ways. If you say that the 2d Amendment must be interpreted as an INDIVIDUAL RIGHT (which I agree) the ONLY way you can get to that point is to establish "original intent" and to discover what was the case law of the colonies prior to the Constitution. By the way, most of the colonists would have thought you a fool to say that their elected leaders were dictators.

Anyway, if the 2d Amendment is NOT an individual right, you are screwed. But if it IS, then you must (certainly any good judge would) determine what the context and intent was for the original "right."

"By the way, most of the colonists would have thought you a fool to say that their elected leaders were dictators."

Not most. Less than a third. Another third remained neutral and the rest fought a war to get rid of the petty dictators that were appointed by the King.

"Anyway, if the 2d Amendment is NOT an individual right, you are screwed."

I can read. It's an individual Right. The same as every one of the amendments that mention "the People".

By the way, I still don't know why you continue to reference the British Colonies. You might as well reference Mongolia.

Oh yes indeed, -- I understand your position all too well. - I've fought against compromises on consitutional liberty & gun rights since the Goldwater days, and lost.

I never quite realised how badly we have lost, - till I started encountering such rationalizations here at FR nearly four years ago.
- Thanks for your candor. -- There aren't many here that will admit to such a stance as openly, or try to explain their reasoning. -- Although I find your reasoning to be historically flawed, -- and very naive about 'local control' in our mass media driven - big brother style political structure.

It's clear you are not even close to understanding what I'm saying. Good to know you see the 2nd Amendment as an individual right. And every one of the Amendments has conditions on their use/expression. It's amazing that even though I have explained the colonies' significance to you three times you are so dense as to still not get it. If not for the colonies' PRECEDENCE, gun ownership would not BE an individual right, because the fuzziness of the language depends entirely on INTERPRETATION based on the legal precedents of the day (that would be the 1700s in case you don't know when the Constitution was written). Public education must be worse than I thought.

Mr. Ashcroft's interpretation of the Second Amendment amounts to a significant reversal of policy for the federal government, which, since 1939, has taken the position that the guarantee applies only to "militias," not ordinary citizens.

Wrong. What US v Miller stated was that the weapon itself had to have a military use. It was quite clear that they considered everyone between the ages of 17 and 45 de facto members of the militia.

Miller in fact affirmed that posession of arms was an individual right. Anyone who claims otherwise is not reading the case. Miller was convicted of bearing a sawed off shotgun and carrying it across a state line. The Supreme court overturned his conviction and remanded the case back to the court in order that the lower court could determine whether or not a sawed off shotgun had a military use. Since he died before he could get a new trial, that question was never answered.

Any cursory analysis would indeed show that "trench guns" were commonly used in the military. Thus, Miller's conviction would have to have been set aside after such a determination.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.