Bang / Guns
See other Bang / Guns Articles
Title: Unanimous pro-Second-Amendment stun gun decision from the Supreme Court
Source:
[None]
URL Source: [None]
Published: Mar 22, 2016
Author: By Eugene Volokh
Post Date: 2016-03-22 20:12:32 by tpaine
Keywords: None
Views: 12544
Comments: 77
Unanimous pro-Second-Amendment stun gun decision from the Supreme Court By Eugene Volokh March 22 at 8:16 AM In Commonwealth v. Caetano, The Massachusetts high court upheld Massachusetts’ total ban on stun gun possession. Yesterday’s Caetano v. Massachusetts decision from the Supreme Court reversed that Massachusetts decision and sent the case back to the Massachusetts court for further review (presumably to consider, for instance, whether the ban may still be justified by some sufficiently important government interest): The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that this “Second Amendment right is fully applicable to the States.” In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with D.C. v. Heller‘s clear statement that the Second Amendment “extends … to … arms … that were not in existence at the time of the founding.” The court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.” For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. A few thoughts (note that I co-filed an friend-of-the-court brief supporting review in this case): 1. This is a unanimous decision, unlike the court’s earlier Second Amendment cases — D.C. v. Heller and McDonald v. City of Chicago — which were 5-4. I doubt that Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, who were in the dissent in McDonald, are reconciled to those cases; I suspect they would be willing to overrule them if they had five votes to do so. But in this case, they were willing to accept them as given. 2. It was also a decision handed down without oral argument and without full briefing on the merits. (The parties filed a petition for certiorari, a brief in opposition, and a reply brief, but those formally dealt just with the question whether the court should hear the case.) The court thus seemed to view this as a very easy case. 3. The summary reversal also helps explain why the justices reversed only the Massachusetts high court’s conclusion that stun guns were definitionally excluded from Second Amendment protection: Whether the stun gun ban may still be justified is a more complicated question, which many justices may hesitate to resolve without oral argument and full briefing; and those justices might have thought that there’s no need to devote such resources to the case now, since the matter might go away if the Massachusetts high court on remand holds in Caetano’s favor. 4. Caetano’s petition and our amicus brief argued that there was a split between the reasoning of this decision and the Connecticut Supreme Court’s decision in State v. DeCiccio (which held that the Second Amendment protects dirks and police batons), as well as between this decision and the Michigan Court of Appeals’ decision in State v. Yanna, which struck down the Michigan stun gun ban. But the majority mentioned neither case, and Justice Samuel Alito’s concurrence in the judgment mentioned only Yanna, and that just in passing. The justices thus didn’t seem interested in the presence of this sort of disagreement among lower courts, though the presence of such a disagreement is often seen as a very important factor in the Supreme Court’s deciding whether to grant review. The justices just seemed to think the reasoning of the decision was plainly wrong, and that was reason enough to reverse — something the justices very rarely do (at least setting aside cases where a state government lost below). 5. Justices Alito and Clarence Thomas would have gone further and would have held outright that the Massachusetts ban was unconstitutional; their opinion was fairly long, but here’s an excerpt from the end: The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. But the right to bear other weapons is “no answer” to a ban on the possession of protected arms. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding. Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons — or simply out of fear of killing the wrong person. “Self-defense,” however, “is a basic right.” I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation. * * * A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self- defense. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe. I assume that Alito and Thomas are trying to (1) persuade lower courts, both the Massachusetts courts and other courts, that such bans are indeed unconstitutional and (2) to inform them that at least two justices are firmly against such stun gun bans — and the views of the six other justices are unknown, but might also ultimately align with Alito and Thomas, if the matter returns to the Court for full merits review. 6. Alito’s introductory paragraphs also struck me as quite rhetorically powerful — a fine example of the lawyer’s art: After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and “in fear for [her] life.” She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against [her] former boy friend,” Caetano accepted the weapon. It is a good thing she did. One night after leaving work, Caetano found her ex- boyfriend “waiting for [her] outside.” He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore…. I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left [her] alone.” It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. That right vindicates the “basic right” of “individual self-defense.” Caetano’s encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children. Under Massachusetts law, however, Caetano’s mere possession of the stun gun that may have saved her life made her a criminal. When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s] enactment.” This reasoning defies our decision in Heller, which rejected as “bordering on the frivolous” the argument “that only those arms in existence in the 18th century are protected by the Second Amendment.” The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not. 7. There’s a stun gun case being litigated now in D.C., and there are similar stun gun bans in New York, New Jersey, Hawaii and Rhode Island, as well as (as of 2009, when I wrote my “Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life,” article) the Virgin Islands, the Annapolis/Baltimore area counties, New Orleans, Philadelphia, Tacoma and several other cities. I expect there will be challenges to some of those laws as well. Connecticut, Illinois, Fargo, and Oklahoma City also ban carrying stun guns, though not possessing them at home; those laws might likewise be challenged. (Caetano herself was carrying a stun gun in public, but neither the Massachusetts ban nor the Massachusetts high court decision distinguished home possession of a stun gun from possession in public, so the Caetano Supreme Court opinion doesn’t decide whether the Second Amendment applies to possessing stun guns — or any other weapons — in public places Poster Comment: The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that this “Second Amendment right is fully applicable to the States."
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
Comments (1-18) not displayed.
.
.
.
#19. To: tpaine (#0)
The protected guns are bows, arrows and muzzle-loading smooth bore muskets.
So, you really are standing pat on your right, under the 2nd Amendment, to keep nuclear weapons in your basement. My view of the 2nd Amendment is changing based on these conversations.
Poor vicomte, reduced to hyping a debate he's not smart enough to win. A personal nuclear weapon in the basement has never been at issue, -- as obviously, reasonable constitutionally based regulations can be written to solve that problem. The real problem with bearing arms has always been the insane opponents of the 2nd, like vicomte. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property. In a way, they're as fanatical as Muslims. It's a leading question, as any lawyer would know, which I've answered on point ad nauseam. Then I went on to question your character and intelligence for trying to use it in the debate.. As is well deserved. Your own words posted above in many ways, prove the opposite. The 2nd doesn't guarantee anyone having a nuke in the basement, as I've said before, and as you're unable to understand, -- being the fanatic you are.
The SCOTUS action of yesterday was a grant of cert and grant of a motion to proceed in forma pauperis. http://www.scotusblog.com/case-files/cases/caetano-v-massachusetts/ Motion to proceed in forma pauperis and petition for a writ of certiorari GRANTED. Judgment VACATED and case REMANDED. Opinion per curiam. (Detached Opinion). Justice Alito, concurring in the judgment. (Detached opinion). - - - - - - - - - - The quote is from District of Columbia v. Heller, 554 U.S. 570, 582 (2008), not from Caetano. The quote is from McDonald v. Chicago, 561 U.S. 742, 750 (2010), not from Caetano. http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf SUPREME COURT OF THE UNITED STATES JAIME CAETANO v. MASSACHUSETTS ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS No. 14–10078. Decided March 21, 2016 PER CURIAM. The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015). The court offered three explanations to support itsholding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582. The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “importantlimitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and [2] unusual weapons’”). In so doing, the court concluded thatstun guns are “unusual” because they are “a thoroughlymodern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it isinconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found“nothing in the record to suggest that [stun guns] arereadily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625. For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
The Volokh article went on to note:
Nolu, it's that prima facie thing. From my (very quick. glancing, not-all-that-interested) skim of the facts, it looks as though the state court said, in essence, 'a stun gun isn't a flintlock, so there's no 2nd Amendment issue' and just moved on, and all 8 Supremes looked at that and said 'Whoa! Not so fast! You cannot just disregard the 2nd Amendment with a handwave. You have to seriously consider it.'
Ok. Now we're getting somewhere. You've acknowledged that there is a line drawing exercise to be done, that the "right to keep and bear arms, shall not be infringed" does not mean unlimited right to anything that is called an arm. Nuclear weapons are arms, and you've acknowledged that the 2nd Amendment doesn't guarantee anybody's right to own one. So, we're back in the land of sanity. As with any right, it's a line-drawing exercise. The freedom of speech, which "shall not be infringed", can, in fact, be infringed - and always has been - when it comes to telling secrets to the enemy, sedition, fraud and slander. And the Second Amendment's protections do not apply to private ownership of nukes, chemical weapons and bioweps. Those things are not included in "the right to keep and bear arms". Flintlocks and swords clearly are. The line-drawing exercise comes in the matter of semi- automatic and automatic guns, and in the question of registration of guns. And there, when the line is drawn to say no machine guns, and no semi-auto weapons with more than magazines of a certain size, I am inclined to say that once the limit of what is within the right - that there should be no registration, no sales permitting, no license to carry, and no restrictions on carrying, except in certain obvious places like airplanes. Nor do I think that the simple fact of a crime conviction should cause a man to lose his right to vote or to bear arms. That's what "shall not be infringed" means to me. I don't believe that the states have the right to erect different laws that effectively trammel the right to bear arms. It's a national right, and the states should not be able to vitiate the right by local rules. I am not a state's rights guy when it comes to individual rights = I think the Constitutional right crushes state law to the contrary. But I'm not the President and not a Senator or Congressman, or Supreme, so my view accounts for the same as yours or anybody else's.
A Personal nuclear weapon in the basement has never been at issue, -- as obviously, reasonable constitutionally based regulations can be written to solve that problem. The real problem with bearing arms has always been the insane opponents of the 2nd. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property. In a way, they're as fanatical as Muslims. No, I've acknowledged that reasonable constitutionally based regulations can be written to solve the problem of possessing nuclear materials and/or other such weapons. It's nice to see you backing off from your more fanatical opinions. Keep up the good work.
You're sliding down the slippery slope of arms bans. Pretty soon you'll have nothing but a set of Magic Mormon underwear for protection. Good luck, you're going to need it. Link?
For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
See my #23.
Now you're just being a killjoy.
Well having a nuke in your home is not practical nor safe. I know a little about storage of nuclear weapons as I'm sure you do. The proper shielding material is expensive and bulky. If you don't have the proper materials you just may be doing your own family planning a la Simpson's. For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
I know. The issue here is an important philosophic one: the Second Amendment is written in absolute terms, and comes from a time when those absolute terms could be taken absolutely. But weaponry has developed to the point that we cannot continue to respect the original intent of the Constitution. We cannot continue to leave the right to keep and bear arms uninfringed, because "arms" today includes nukes, mustard gas, nerve gas and other weapons of mass destruction. A hundred people a year cook off in murder suicides. A handful of murder-suicides brought down the Twin Towers and the Pentagon. With nukes, the same number of murder suicides that day would have taken out 19 American cities. Adam Lanza walked into a school and shot a bunch of kids. If people had nukes, it would have been the end of a city.. The problem with the Second Amendment today, the REASON that it is under pressure and being abridged, is not because of street crime - that's actually an argument FOR it. The problem is the instability of human beings and their propensity to cook off and kill a lot of people. The gun rights advocates waves their hands and intone platitudes such as "Those who would sell their liberty for security deserve neither." That's a nice saying, but the reality is why Trump will be elected. Before Brussels, there were a whole bunch of people screaming about Trump. But with Brussels, everybody was reminded about terrorism in a brutal way, and there is only one candidate who actually MENTIONED Brtussels, specifically, and who speaks of stopping Muslim immigration and aggressively fighting the threat, including using torture. It's very easy to live philosophically - until the bombs start going off again. Philosophy triumphs easily over evils past and evils future, but evils present conquer philosophy. Muslim terrorism will have made Trump the next President, because in the end people will not just sit idly by and die. And that is the problem with the Second Amendment: as written, it means that no weapon can be regulated. That was fine for 1789. It won't work today. The right must be abridged, but since gun nuts like Hondo - who thinks we have a personal right to nukes - won't let the Constitution be amended we are faced with the practical reality that our Constitution says something we cannot do if we don't want mass casualties every few days. People are too unstable to be permitted to have WMD, or mass effect weapons. We came to this realization in the era of the machine gun, and we placed restrictions on firearms then. Nobody ever considered that people had the right to nukes or bioweps - that's insane. Of course, once we infringed people's right to keep and bear automatic weapons, we were in fact breaking the Constitution. We were infringing people's right to keep and bear arms. We have to. As with slavery in the 1860s, the Constitution as written with regards to weapons is not workable. It becomes a suicide pact. We HAVE TO violate its words, because if we don't, we will have mass casualties all the time. We already hAVE mass casualties all the time, many every year, with just SEMI-automatic weapons. Reality is that we have to regulate arms possession and we do. Human beings are unstable and they commit murder-suicides, often. That will not change. So you have to limit the damage such people can do. One way you do that is by halting Muslim immigration. A second way is by restricting the power of weapons individuals can have. A third way is by refusing to let people who are already known to be unstable possess weapons. And those second two ways are both in direct violation of the clear language of the 2nd Amendment. So, then you end up with the very problem I've been addressing: Constitutional purism versus common sense necessity. I use the personal nuke example because denying people the right to possess those ALSO violates the 2nd Amendment. The 2nd Amendment DOES pretty plainly protect the right to keep and bear nukes. And the Supreme Court was correct in the Dred Scott decision: slaves were indeed property, under the Constitution, and the states could not interfere with the property rights of men. The problem is that the Constitution as written could not be respected regarding slavery, and it could not be amended. So it had to be violated. And the same is true when it comes to guns. Individuals cannot possess WMD. Period. The existential threat of that overrides the law. The Constitution says they can, and the gun nuts, like the slave lobby back then, is far to strong to ever amend the Constitution through the legal process. So we are faced with the ugly truth that our Constitution, respected as written, cannot work. It becomes a suicide pact. We MUST violate it to survive. And we have. In 1860, the secessionists were right, constitutionally speaking. The Constitution does not say that states can't secede, and the Southern states were threatened by Lincoln and the North's politics regarding slavery. They seceded to protect it. The Constitution vaguely empowers the President to fight rebellion, but it certainly didn't empower him to suspend habeas corpus, or to emancipate slaves. And yet he had to do those things or the country would have come apart permanently, and the slaves would never have been freed. So Lincoln violated the Constitution in order to save the country. And likewise today, in the age of WMD. We have to violate the Constitution to enforce unconstitutional laws that prevent individuals from acquiring WMDs. There can be no question that those laws DO violate the direct language of the 2nd Amendment, because they do. But we cannot allow people to have their full 2nd Amendment rights anymore, because weapons are too powerful and we'll lose cities to suicides. We know that instinctively, so we've been violating the Constitution for a long time. We have no choice in this. My suggestion is simple. People who want to continue to exercise the right to have guns have to take the lead on amending the Constitution to allow for the reasonable regulation of weapons. Lines should be drawn legally, or else the whole Constitution falls into ruin, as it is. We have to break the 2nd Amendment, and if we can break the 2md routinely, why not the 1st, or the 4th, or the rules of how the branches operate? There is no life-or-death reason to violate the OTHER provisions of the Constution, but we HAVE TO violate the 2nd, as written. So we need to rewrite the 2nd. Amend it to make it clear that people can have guns, and set the parameters under which they can. Gun advocates need to take the lead, because if they don't, then people who think that nobody should have any guns will certainly press forward and legislate that. And since we're already violating the 2nd - because we have to in regards to WMD and machine guns - what's one more violation. It's the gun advocates who need to be proactive and reasonable, and craft a reasonable constitutional provision for the 21st Century. But guys like Hondo refuse to get that. They insist on the full unlimited right guaranteed by the 2nd Amendment: he claims his right to have a nuke. He stands pat on the language as written. By standing there, he may very well lose his right to have a gun at all. The 2nd Amendment is unworkable. We cannot respect it as written, because we cannot permit people to have WMD and modern mass-area-effect weapons. The line has to be drawn and it is drawn. Flip back to the Civil War example. The Southerners had to come up with a way to phase out slavery. They had to come up with it fast, and they had to lead the process and implement it. Instead, they stood fast on their constitutional rights, seceded to protect their slave culture, wrote slavery into their founding documents, fought to the death over it, were utterly destroyed and died, and preserved nothing. And were under federal occupation for a decade. That's how things play out when people try to stand on rights that are unreasonable. They never keep the rights. They lose everything instead.
Chemical weapons would be a treaty issue. The US unilaterally decommissioned all its chemical weapons stocks under Reagan-Bush 1 timeframe. So by US treaty adherence not even the military can have such weapons now. Only exception is the USANCA program which allows weaponized agents for research on how to protect our troops. Nuclear Weapons? I know kind of silly, but if a private citizen or group of citizens wanted nukes, they would be in violation of several Non-Proliferation Nuclear treaties the US signed with allies and adversaries. Now to finish your comments...:) For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
Nuclear Weapons? I know kind of silly, but if a private citizen or group of citizens wanted nukes, they would be in violation of several Non-Proliferation Nuclear treaties the US signed with allies and adversaries. Do treaties trump constitutional amendments?
The real problem with bearing arms has always been the insane opponents of the 2nd. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property. In a way, they're as fanatical as Muslims. No, I've acknowledged that reasonable constitutionally based regulations can be written to solve the problem of possessing nuclear materials and/or other such weapons. It's nice to see you backing off from your more fanatical opinions. Keep up the good work. Our constitution doesn't need amending, -- it needs govt officials to honor their oaths, to protect/defend, - and to write/enforce ONLY reasonable, constitutionally based regulations. We must vote out the political fanatics who insist that they have the power to prohibit damn near anything, or any behavior..
No it isn't. The real problem with bearing arms is that crazy people commit mass murders with semi-automatic weapons on a semi-regular basis. They do not do this because of angst about gun rights. They do it because they are crazy, and they can easily access multiple-shot, easy-to-use guns.
It's nice to see you backing off from your more fanatical opinions. Keep up the good work. Our constitution doesn't need amending, -- it needs govt officials to honor their oaths, to protect/defend, - and to write/enforce ONLY reasonable, constitutionally based regulations. We must vote out the political fanatics who insist that they have the power to prohibit damn near anything, or any behavior.. I knew your temporary sanity couldn't last., and sure enough, you're back to being a fanatic.. The historical fact is that crazy people have been committing mass murder with ALL sorts of weapons since time began. -- Easy to use guns have become a major factor in preventing such attacks in Israel, -- for instance. -- Admit it..
Good question. They are international agreements ratified by our Senate. They are not meant for our civil law and our citizens. If our citizens obtain WMD then do they become an entity under a treaty? Good question I don't have an answer other than it is silly to even consider this. For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
They are not meant for our civil law and our citizens. If our citizens obtain WMD then do they become an entity under a treaty? Good question I don't have an answer other than it is silly to even consider this. It's silly - and that's why it served a purpose. The 2nd Amendment says "the right of the people to keep and bear arms, shall not be infringed." That's what it says. Nuclear weapons are arms, and the Constitution says in black and white that the right of the people to keep them and bear them shall not be infringed. It's obviously ridiculous, the thought that individuals can have nukes. And so we have, and have always had, without a moment's thought, laws that prohibit the people from keeping and bearing them. It's a no-brainer. It's also unconstitutional. The Constitution, as written, in black and white - read the way that Christians read the Bible - prohibits the government from passing and enforcing any law or regulation that infringes upon your right to keep and bear a nuclear weapon. Now, here the political world bifurcates into "Catholics" and "Sola Scripturalists". Catholics, without a moment's thought, see the dangers in everything nuclear and slap all sorts of laws on and around it. They don't theorize much about it. OBVIOUSLY these things are a gigantic risk. So OBVIOUSLY we have to regulate it and prohibit it, or people will get killed, and that's bad. Because losing cities to nuts is about as bad a thing as can be imagined, we don't let anybody have nukes. The same thing is true of machine guns, based on bitter experience during Prohibition. The "Catholics" would blink in astonishment at the question of where they would get their authority to prohibit people from owning nukes or machine guns. From the fact that people were elected, from the lawmaking power of officials, from common sense. When presented with the text of the Second Amendment, the "Catholics" would say that that was then, but the world has evolved and law has to evolve to reality. The Founders never considered anything like a machine gun, let alone a nuclear weapon. The Sola Scripturalists come from a very different place. Government only has the power granted to it by the Constitution, they say. If the power was not granted to government, then government has no such power. The Founders were great men, they say, American apostles of liberty. They gave us the Constitution, and the Constitution means what they meant when they wrote it. They gave us the ability to amend the Constitution, and that is what we are limited to if we want to change things in it, they say. Congressmen, the President and judges at all levels all take an oath to support and defend the Constitution. Therefore, "necessity" is not an argument for breaking the terms of the Constitution, for the Constitution must be protected inviolate by those who have sworn a sacred oath to uphold it. Now, the Second Amendment says in black and white: "the right of the people to keep and bear arms, shall not be infringed." It isn't vague. There is no qualifying language. "Shall not be infringed" is right there, and it means what it says. If you say I cannot have a nuke, or a machine gun you are infringing on my right to have that arm, and the Constitution says that government has no power whatever to do that. Now, we've always had laws against private nukes, and we've had laws against machine guns for a long time. But with all of the mass killings, there are now laws against semiautomatic weapons also, and laws against handguns, laws that press registration and limitation. And people who want to protect gun rights reply that all of these laws are violations of the 2nd Amendment. And maybe they all are - the Sola Scripturalist constitutionalists like Hondo definitely think so. I start with nukes because it's not silly at all. They're arms. We HAVE TO limit them, but the Constitution says we can't. So, how do we treat our violation of the Second Amendment? The majority does not exist to amend the document. We have to violate it. Do we just violate it, acknowledge we're violating it, and say that some arms are just so powerful that the Founder's rule cannot apply today? This is the "Living Constitution" or "Catholic" approach. Of course, then the question of whether people should have guns at all is on the table, because maybe things have evolved to the point that private firearms ownership needs to change. A "Living Constitution" can be bent any which way. Hard cases make bad law. But we can't take the purist position, because then Hondo can have his nuke. I've given my own suggestion as to where, and how, to draw the line. And I've gotten a lot of guff about it. We've seen Hondo's view: the line is no limits. The nuke question and the answer that it's silly, of course we have to limit nukes, means that you're not a "Sola Scripturalist" constitutionalist. The question is: where should the line be drawn, and one what principle. And as you draw up your position, remember: you have to account for the nuclear question, because it is part of the question of arms. So really not silly at all, when you get right down to it.
I knew your temporary sanity couldn't last., and sure enough, you're back to being a fanatic.. The historical fact is that crazy people have been committing mass murder with ALL sorts of weapons since time began. -- Easy to use guns have become a major factor in preventing such attacks in Israel, -- for instance. -- Admit it.. Bullshit. Sure, machine guns were used by criminals (mostly against other criminals) during our national insanity called prohibition, - but the 'NFA' was passed by a socialistic congress at the urging of a socialistic president primarily because they were afraid of the depression era masses, imo... In other words they ignored our Constitution and made up the power.. Again, bullshit. The founders were well aware of volley guns and grapeshot cannon. The truth is, that vicomte will write most any damn thing to advance his anti- constitutional agenda
Maybe wooden literalism is the term you are looking for. A Sola Scriptura approach to this would apply reason as well. But I understood what you meant. There is a constitutional solution to this. If someone uses a nuke against door knocking ATF in the middle of the night, they will also violate the liberties of their neighbors. For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
All such distinctions are arbitrary. In fact, single soldiers -- admittedly not the average infantryman, but specially-tasked SEALS and the like -- are widely believed to have already carried nuclear devices in their backpacks, on special covert missions overseas. So the whole rationale of what can be "handled by a single man" will shortly collapse. The main point is this: The federal government has no powers, except those delegated to it by the people. I cannot delegate a power which is not already mine. So how can I delegate to the government the power to build, possess, deploy, yes and even use, nuclear weapons, if I, as an INDIVIDUAL American, do not possess that right, PRIOR to its delegation to government? (Nor do I fully give up a power, when I delegate it. We each retain the right to make a citizen's arrest of a fleeing felon, even though we generally delegate this job to the police.) Around the turn of the century Vin Suprynowicz wrote a series of articles on Nuclear Weapons and the Well Regulated Militia. If you keep following the links both backwards and forwards, you'll eventually get the whole series. No there isn't. Because it would still mean that the guy who uses the nuke against the ATF HAS the nuke to use. And the point is that he MUST NOT HAVE THE ARM AT ALL. The Constitution says that his right to keep and bear arms "shall not be infringed". But it MUST be infringed. The decision whether or not to use the weapon must never, ever be in the hands of some individual. Never. The Constitution says he has the right to bear arms, and draws no lines, because there were no arms anything like that in 1789, but he cannot be permitted to have such weapons. Ever. We must break the 2nd Amendment and absolutely prevent the "test" from happening. We cannot trust that people will responsibly handle nuclear weapons, and "accept" that there will be some casualties - mass casualties - whole city casualties - because somebody does not respect the rights of his neighbors. The Constitution says he has the right, and it says that the right cannot be infringed. The Constitution is unworkable as written. The right MUST be infringed. That requires a constitutional amendment. But we have no such amendment. We must, then, simply violate the Constitution, infringe the right, prevent the weapons from being held, making the attempt to procure such a weapon itself illegal. We cannot uphold the Constitution fully, because the language of the Constitution means that we can't infringe a right that we MUST infringe to survive. And we cannot obey the law and wait until we have amended the Constitution to prevent the acquisition of private nukes. Whether the Constitution is amended or not, no matter what the Constitution says, we must never, ever let individuals have access to the weapons. They have the written right, but they must be prevented, by force, from attempting to exercise that right, because individuals in possession of nuclear weapons is sheer madness that will get us killed. The law fails and the Constitution fails on this matter. We've been systematically and routinely breaking the Constitution on the subject for 71 years, and we must always continue to do so, obviously. Now, it would be NICE if we could get ourselves out of that irregular state by amending the document to make it clear that the right to keep and bear arms can be infringed, and indeed must be infringed, limited, regulated and bound by law. Because it HAS to be. As written you can have a nuke. We cannot respect or follow the Constitution as written on this. The problem with "interpretations" that try to wiggle out of the clear right to possess a nuclear weapon, or any other armament, is that if you can wiggle out of "the right to keep and bear arms shall not be infringed" and turn that absolute language into a "well, except for nuclear weapons, obviously" rule, then you can do that with every other line in the Constitution. And we do that, too. The Constitution has been reduced to a set of guidelines, much to the detriment of the country. But we CAN'T just follow it as written, because it says we can have nukes, and we can't. It's out of the question. So, what is needed is realism: we're breaking the Constitution because we have to. The world has evolved and we cannot have the uninfringed right to keep and bear arms. We can't have nukes and chemical weapons and biological weapons. We can't have machine guns. We can't carry guns anywhere we please. We need an amendment that actually reflects what we have to do. And that means an amendment of the amendment. If we don't do this, then what we will have is nothing, because we're not going to follow the Second Amendment as written: it doesn't work anymore. We're going to just legislate away all of the gun rights, unless we can find a principled basis for line drawing. All rational people already agree that we have to draw the line at WMD, and most people think that we have to draw it at machine guns. But that's been true for a long time. I suppose the law as it stands is workable, but because of the 2nd Amendment, the open exceptions to it, which have been created out of whole cloth, provide the example for ignoring any other constitutional provision when it is expedient.
And there you have it: the 2nd Amendment guarantees the right of Hondo to keep and bear as many nuclear weapons as he chooses. No compromise. No reason. Just an absolute assertion of a right that he cannot, in fact, be allowed to have. This is why gun control proceeds apace. The refusal to be reasonable means that 2nd Amendment advocates are not invited to the table when the decisions have to be made, because they are already known to be utterly unreasonable.
Yes, we did. Because we HAD to. The Constitution says that individuals have the uninfringable right to keep and bear nuclear weapons. And that cannot be permitted. So we have to break the constitutional law and ignore the full reach of the Second Amendment, because we cannot allow the right it protects to be taken that far. It's suicidal. So, how should the 2nd Amendment be amended so as to make it reasonably workable in modern times?
Allowed? The constitution is quite clear, We The People have not allowed the government to infringe upon our God given rights. Sorry Charlie, you lack the authority. You seem to be terrified of freedom, and yearn for a return to those bygone days, when LBJ protected you from Barry Goldwater and those scary libertarian conservatives, by signing the Gun Control Act of '68? It's a huge mistake to trust such important matters completely to government goons. They're not one bit better than the rest of us. The second amendment is an essential counterbalance, and arms parity or better is a vital component. Congress has the ability to limit funding for gov arms, so it's possible that We The People might be better armed than the paid military. So we can have nukes, but the military might not. In other words you fanatics ignored our Constitution and made up the power... Sorry , but our Constitution protects our rights from fanatical minority/majority schemes - like those you advocate. Read much? I've told you previously: --- Our constitution doesn't need amending, -- it needs govt officials to honor their oaths, to protect/defend, - and to write/enforce ONLY reasonable, constitutionally based regulations. We must vote out the political fanatics like you, --- who insist that they have the power to prohibit damn near anything, or any behavior..
It's obviously ridiculous, the thought that individuals can have nukes. And so we have, and have always had, without a moment's thought, laws that prohibit the people from keeping and bearing them. It's a no-brainer. It's also unconstitutional. https://supreme.justia.com/cases/federal/us/554/570/opinion.html http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf District of Columbia v Heller, 554 US 570 (2008) From Heller at 581: Heller at 582: Heller at 584: Heller at 620: Heller at 624-25: We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Heller at 627-28:
Heller will not be good law if Hillary is elected.
Discussing nukes as personal weapons is bizarre. Sorry if I have no interest in participating in such nonsense.
For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
It's a line-drawing exercise. They're arms. The language of the 2nd Amendment covers them. The 2nd Amendment doesn't say personal weapons. It says arms. I'm not really interested either. frankly. There's no reasonableness on the matter, and there's no reasonableness on a great number of other matter. The right has become ossified in certain positions. Hard, unyielding, irrational, and indefensible. Trump is the last hope the Right has of changing course into something more reasonable. I think they're going to band together to rob him of the nomination. Which means that Hillary wins, and stacks the Supreme Court, and theoretical discussions of the Second Amendment are done. A liberal court will interpret the 2nd Amendment to nothing. And that will be that.
Utter nonsense retard talk. Sorry but it is.
Damn. We used the same word. We must be right.
It also says "bear". What does that mean?
I see the same outcome
For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
It also says "bear". What does that mean? Your nuclear missile equipped drone is cleared for take off! You get to decide which arms you wish to bear, not some tyrant. Well I'll just pay a visit to the Fort Sill museum and procure atomic Annie.
For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
https://supreme.justia.com/cases/federal/us/554/570/opinion.html http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf District of Columbia v Heller, 554 US 570 (2008) From Heller at 581: Heller at 584: Black's Law Dictionary, 6 Ed. It you can't take it in your hands as a weapon, it is not arms. If it is unlawful to possess, it is not protected by the Second Amendment, e.g. a sawed-off shotgun.
Until 2017, when Hillary Clinton's nominee sits on the Supreme Court. Then a series of 5-4 decisions will shape a new meaning of the 2nd Amendment, and it won't look anything like the old rules. We're going to have a whole series of "West Coast Hotels".
Comments (60 - 77) not displayed.
Top • Page Up • Full Thread • Page Down • Bottom/Latestthe court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment
#20. To: hondo68 (#18)
#21. To: Vicomte13 (#17)
Tpaine and Hondo, two 2nd Amendment standard bearers who really believe that the 2nd Amendment protects their right to have a personal nuclear weapon in their basement.
Instead of just answering that "No, there's no right of individuals to keep and bear nuclear weapons" - the only possible right answer to the question -
- you resort to attacking my character and my intelligence.
I'm not an opponent of the 2nd Amendment. I'm pretty neutral about it, or if anything inclined to support it.
But I can't ally myself with nuts who call me a Muslim because they think that individuals have the right, guaranteed by the 2nd Amendment, to keep a nuke in their basement.
#22. To: tpaine, Vicomte13 (#0)
Mar 21 2016
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,”
and that this “Second Amendment right is fully applicable to the States."
1 Cite as: 577 U. S. ____ (2016) Per Curiam
#23. To: tpaine, Vicomte13 (#22)
It was also a decision handed down without oral argument and without full briefing on the merits. (The parties filed a petition for certiorari, a brief in opposition, and a reply brief, but those formally dealt just with the question whether the court should hear the case.) The court thus seemed to view this as a very easy case.
#24. To: nolu chan (#23)
#25. To: tpaine (#21)
The 2nd doesn't guarantee anyone having a nuke in the basement, as I've said before, and as you're unable to understand,
#26. To: Vicomte13 (#25)
Ok. Now we're getting somewhere. You've acknowledged that there is a line drawing exercise to be done, that the "right to keep and bear arms, shall not be infringed" does not mean unlimited right to anything that is called an arm. -- Nuclear weapons are arms, and you've acknowledged that the 2nd Amendment doesn't guarantee anybody's right to own one.
#27. To: tpaine, down the slippery slope (#26)
No, I've acknowledged that reasonable constitutionally based regulations can be written to solve the problem of possessing nuclear materials and/or other such weapons.
I'm sticking with my God given and constitutionally protecetd rights, thank you.
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#28. To: tpaine (#0)
#29. To: redleghunter (#28)
Link?
#30. To: Vicomte13 (#15)
Tpaine and Hondo, two 2nd Amendment standard bearers who really believe that the 2nd Amendment protects their right to have a personal nuclear weapon in their basement.
#31. To: Vicomte13 (#15)
Tpaine and Hondo, two 2nd Amendment standard bearers who really believe that the 2nd Amendment protects their right to have a personal nuclear weapon in their basement.
#32. To: redleghunter (#31)
#33. To: Vicomte13 (#32)
But weaponry has developed to the point that we cannot continue to respect the original intent of the Constitution. We cannot continue to leave the right to keep and bear arms uninfringed, because "arms" today includes nukes, mustard gas, nerve gas and other weapons of mass destruction.
#34. To: redleghunter (#33)
Chemical weapons would be a treaty issue. The US unilaterally decommissioned all its chemical weapons stocks under Reagan-Bush 1 timeframe. So by US treaty adherence not even the military can have such weapons now. Only exception is the USANCA program which allows weaponized agents for research on how to protect our troops.
#35. To: Vicomte13 (#32)
(Edited)
Ok. Now we're getting somewhere. You've acknowledged that there is a line drawing exercise to be done, that the "right to keep and bear arms, shall not be infringed" does not mean unlimited right to anything that is called an arm. -- Nuclear weapons are arms, and you've acknowledged that the 2nd Amendment doesn't guarantee anybody's right to own one.
My suggestion is simple. People who want to continue to exercise the right to have guns have to take the lead on amending the Constitution to allow for the reasonable regulation of weapons.
#36. To: tpaine (#35)
The real problem with bearing arms has always been the insane opponents of the 2nd. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property.
#37. To: Vicomte13 (#36)
My suggestion is simple. People who want to continue to exercise the right to have guns have to take the lead on amending the Constitution to allow for the reasonable regulation of weapons.
The real problem with bearing arms is that crazy people commit mass murders with semi-automatic weapons on a semi-regular basis. They do not do this because of angst about gun rights. They do it because they are crazy, and they can easily access multiple-shot, easy-to-use guns.
#38. To: Vicomte13 (#34)
#39. To: redleghunter (#38)
Good question. They are international agreements ratified by our Senate.
#40. To: Vicomte13 (#39)
The real problem with bearing arms is that crazy people commit mass murders with semi-automatic weapons on a semi-regular basis. They do not do this because of angst about gun rights. They do it because they are crazy, and they can easily access multiple-shot, easy-to-use guns.
Because losing cities to nuts is about as bad a thing as can be imagined, we don't let anybody have nukes. The same thing is true of machine guns, based on bitter experience during Prohibition.
(The 'socialists') would blink in astonishment at the question of where they would get their authority to prohibit people from owning nukes or machine guns. From the fact that people were elected, from the lawmaking power of officials, from common sense.
When presented with the text of the Second Amendment, the ("socialists") would say that that was then, but the world has evolved and law has to evolve to reality. The Founders never considered anything like a machine gun, --
#41. To: Vicomte13 (#39)
The nuke question and the answer that it's silly, of course we have to limit nukes, means that you're not a "Sola Scripturalist" constitutionalist.
#42. To: Vicomte13, regleghunter, tpaine (#39)
But Which Arms Do We Have The Right To 'Keep And Bear'?
More On nuclear weapons and The 'well-regulated militia'
This is the sort of thing that made NRA gun grabber heads explode at Free Republic, back in the day.
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#43. To: redleghunter (#41)
There is a constitutional solution to this. If someone uses a nuke against door knocking ATF in the middle of the night, they will also violate the liberties of their neighbors.
#44. To: hondo68 (#42)
#45. To: tpaine (#40)
In other words they ignored our Constitution and made up the power...
#46. To: Vicomte13, LBJs great society, GCA 68 (#44)
Just an absolute assertion of a right that he cannot, in fact, be allowed to have.
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#47. To: Vicomte13 (#45)
Yes, we did. Because we HAD to. The Constitution says that individuals have the uninfringable right to keep and bear nuclear weapons. -- And that cannot be permitted. So we have to break the constitutional law and ignore the full reach of the Second Amendment, because we cannot allow the right it protects to be taken that far. It's suicidal.
So, how should the 2nd Amendment be amended so as to make it reasonably workable in modern times?
#48. To: Vicomte13, redleghunter (#39)
The 2nd Amendment says "the right of the people to keep and bear arms, shall not be infringed." That's what it says. Nuclear weapons are arms, and the Constitution says in black and white that the right of the people to keep them and bear them shall not be infringed.
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”
“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
#49. To: nolu chan (#48)
#50. To: Vicomte13 (#43)
#51. To: redleghunter (#50)
#52. To: Vicomte13 (#43)
We must break the 2nd Amendment and absolutely prevent the "test" from happening. We cannot trust that people will responsibly handle nuclear weapons, and "accept" that there will be some casualties - mass casualties - whole city casualties - because somebody does not respect the rights of his neighbors.
#53. To: redleghunter (#50)
nonsense.
#54. To: Vicomte13 (#51)
The 2nd Amendment doesn't say personal weapons. It says arms.
#55. To: Vicomte13 (#51)
#56. To: A K A Stone (#54)
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#57. To: hondo68 (#56)
#58. To: A K A Stone (#54)
It also says "bear". What does that mean?
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.
#59. To: nolu chan (#58)
(Edited)
It you can't take it in your hands as a weapon, it is not arms. If it is unlawful to possess, it is not protected by the Second Amendment, e.g. a sawed-off shotgun.
.
.
.
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]