News What are the legal limits and interpretations of the 2nd Amendment?

[Ivan Seeking]

While Char. Limit decided that his question was not valid and asked that the thread be locked, I think it is worthy of discussion.
https://www.physicsforums.com/showthread.php?t=463896

I would like to see a proper legal argument showing that the right to bear arms is equivalent to the right to use arms; as well as the limits to the right of use and how those limits are defined. As mentioned in the linked thread, I think the argument might be derived from the intent that an armed public constitutes a militia, or it may be that "bear" is legally interpreted to mean "use", but it wasn't clear to me this is the case. Is there legal precedence for this?

To the best of my knowledge, the only uses of a firearm that are absolutely protected are in the cases of law enforcement [which really doesn't apply here except as self defense], self defense, and in defense of the nation. Otherwise, it isn't clear to me that we have a "right" to any other uses. While a city cannot deny your right to own a gun, they can deny you the right to use it except in the cases mentioned.

It is legal to hunt, but only as is allowed by the local Fish and Game Department. All hunting could be banned if deemed necessary, so the use of guns for hunting does not seem to be a protected right.

 

[Char. Limit]

Subscribed. I want to watch this thread closely.

 

[Evo]

I'm going to be watching this closely, this is not to talk about your guns, this is not for talking about shooting guns.

It is ONLY to get a clarification of what the law says. So any post will require a link to the law you think applies.

 

[talk2glenn]

Plenty of reading here...

http://en.wikipedia.org/wiki/2nd_amendment#Supreme_Court_cases

A brief substantive quote:

(1) The Second Amendment protects an individual right to possesses a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.[167][168

The key language is quite clear in the text of the amendment itself:

the right of the people to keep and bear Arms, shall not be infringed

The court explicitly holds that the right to bear arms includes for purposes of hunting and self-defense - these are the "traditionally lawful" purposes referenced above. The right to keep arms protects their possession. From the text of the Supreme Court opinion in Heller, as written by Scalia:

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service... “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.

At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation...

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/dcvheller.html

 

[russ_watters]

While Char. Limit decided that his question was not valid and asked that the thread be locked, I think it is worthy of discussion.
https://www.physicsforums.com/showthread.php?t=463896

I would like to see a proper legal argument showing that the right to bear arms is equivalent to the right to use arms...

I'm not sure you'll get much out of it as I don't think anyone made that claim. The OP's question - and my point - was simply that it would have to be exceedingly poorly written (not that I think it is well written) for the word "bear" to just mean "have" as then it would guarantee the right to have and have guns...

...as well as the limits to the right of use and how those limits are defined.

Nor was that at issue either.

 

[CAC1001]

How could the term "bear arms" not refer to using them? Why else would anyone have them? For decoration? Unless I am misunderstanding the question...

Kind of reminds me of when the ultra-libertarians say there is nothing in the Constitution saying that we can establish military bases overseas. Well the Constitution has the term "provide for the common defense," in which overseas bases I think would be implied.

 

[WhoWee]

This is worth a quick read - on point.
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/beararms.htm

 

[xxChrisxx]

http://2.bp.blogspot.com/_BpzDEJyxl...AAQM/2pb1W0HRCiQ/s1600/Right_To_Bear_Arms.jpg

That's clearly what was originally intended.

To be honest, as an outsider to this, you are all basing a lot of rage induced arguments on a document that is over 200 years old. Why argue what that says, why not argue what is relevant today? Is it still relevant as written? Are people just arguing for it as a legacy type thing?

The original reason for that clause being in there was that the US relied on a militia for security, both for fighting off the redcoats and the locals.

I have no personal opinion on this, just posting some thoughts that come to mind.

 

[JaredJames]

http://2.bp.blogspot.com/_BpzDEJyxl...AAQM/2pb1W0HRCiQ/s1600/Right_To_Bear_Arms.jpg

That made me think of this straight away:

http://www.tooshocking.com/videos/2048/Family_Guy__Right_to_Bear_Arms"

On a more serious note, I actually agree with everything you said there though.

 

[Al68]

To the best of my knowledge, the only uses of a firearm that are absolutely protected are in the cases of law enforcement [which really doesn't apply here except as self defense], self defense, and in defense of the nation. Otherwise, it isn't clear to me that we have a "right" to any other uses. While a city cannot deny your right to own a gun, they can deny you the right to use it except in the cases mentioned.

I think that's dead on. The second amendment contains no protection of a right to actually fire a gun whenever and wherever one wants, since firing a gun doesn't fall under the definitions of "keep" or "bear". It can be regulated by the states the same way as hunting.

Obligatory link: http://www.usconstitution.net/const.html#Am2".

 

[Ivan Seeking]

http://2.bp.blogspot.com/_BpzDEJyxl...AAQM/2pb1W0HRCiQ/s1600/Right_To_Bear_Arms.jpg

That's clearly what was originally intended.

To be honest, as an outsider to this, you are all basing a lot of rage induced arguments on a document that is over 200 years old. Why argue what that says, why not argue what is relevant today? Is it still relevant as written? Are people just arguing for it as a legacy type thing?

The original reason for that clause being in there was that the US relied on a militia for security, both for fighting off the redcoats and the locals.

I have no personal opinion on this, just posting some thoughts that come to mind.

There is nothing new under the sun. Every generation lives under the illusion that the world [human nature] is different than it was in the past, so the wisdom of the ages does not apply.

We take our rights very seriously here as there are always people trying to take them away. In my view, this right is just as precious as the right to free speech; and it is just as relevant today as it was 230 years ago. Perhaps this is why it is number two on the list, right after the right to free speech! Many have tried to argue that this right does not apply to personal gun ownership, but the Supreme Court has recently ruled otherwise [the first time in 230 years!]. This means that in order to take our guns away, a Constitutional Amendment is needed and not just a simple court decision stating that we never had the right in the first place. That is a very tall order.

That is why we argue over a 200 year old document.

 

[Al68]

To be honest, as an outsider to this, you are all basing a lot of rage induced arguments on a document that is over 200 years old. Why argue what that says, why not argue what is relevant today? Is it still relevant as written? Are people just arguing for it as a legacy type thing?

No, no, and no. We're talking about the current U.S. Constitution, not the original version.

The right to bear arms is in the currently active constitution, the federal government's current charter.

 

[CAC1001]

To be honest, as an outsider to this, you are all basing a lot of rage induced arguments on a document that is over 200 years old. Why argue what that says, why not argue what is relevant today? Is it still relevant as written? Are people just arguing for it as a legacy type thing?

The Constitution is a timeless document, one meant to check the powers of the government. If you find that some part of it is outdated and "no longer relevant," then you can amend it, which we have done periodically throughout history. Otherwise, the Constitution is to be adhered to, you can't just decide some part is "no longer relevant." As Al68 pointed out, the current Constitution with the amendments is different than the original Constitution. The very first Constitution even the Founding Fathers didn't like, that is why they incorporated the first ten amendments.

 

[D H]

The answer is in post #4. The Supreme Court in District of Columbia v. Heller (http://www.law.cornell.edu/supct/html/07-290.ZS.html) found that (emphasis mine) "The Second Amendment protects an individual right to possesses a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

That said, the Court acknowledged that "like most rights, the Second Amendment right is not unlimited." The question answered by the Court was to what extent can a government limit those rights? Per the ruling, it is OK to restrict access to firearms to former felons and the mentally ill. It is OK restrict carrying of firearms into sensitive places such as schools and other public facilities. It is OK to restrict access to dangerous and unusual weapons. What is not OK is to restrict typical firearms in a way that precludes using them for self-defense.

 

[Ivan Seeking]

Plenty of reading here...

http://en.wikipedia.org/wiki/2nd_amendment#Supreme_Court_cases

A brief substantive quote:



The key language is quite clear in the text of the amendment itself:



The court explicitly holds that the right to bear arms includes for purposes of hunting and self-defense - these are the "traditionally lawful" purposes referenced above. The right to keep arms protects their possession. From the text of the Supreme Court opinion in Heller, as written by Scalia:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/dcvheller.html

Thank you. Interestingly, "traditionally lawful purposes" is a moving target without clear definition. And it appears that this was only addressed by the court two years ago.

Hunting is a traditionally lawful purpose, but it can be regulated according to non-critical issues [Constitutionally], such as the local deer population. The only specific application of this right that I see in your links not subject to the whims of a local judge, politician, or bureaucrat, is the case of confrontation.

Late edit: DH, I had this hanging a long time before I responded and hadn't see your response yet.

 

[nismaratwork]

I'll watch, but frankly I'm exhausted with trying to reason with people who want to WIN, not talk, and that's for all sides.

 

[Ivan Seeking]

I'll watch, but frankly I'm exhausted with trying to reason with people who want to WIN, not talk, and that's for all sides.

? I thought this thread was pretty benign. My position on gun ownership is clear, but I have no personal interest in this issue of scope, beyond the legal arguments. It seemed an interesting technical question.

 

[nismaratwork]

? I thought this thread was pretty benign. My position on gun ownership is clear, but I have no personal interest in this issue of scope, beyond the legal arguments. It seemed an interesting technical question.

Not you Ivan... It's been other threads.

I get owning guns... I own them! I get loving the toys we own. I understand the "right" to self defense, and support it.

I do NOT understand a fetish-culture that pretends to be a group of "responsible" gun owners. Really?... can you be a responsible PERSON if you have some kind of fantasy that you and your pea-shooter will stand in some kind of opposition to the US military? I know I know, the military would never... I'm sure the hippies thought the same thing before the national guard started banging them around too.

When you have people who want guns and **** any semblance of what the 2nd amendment is, centuries of jurisprudence on one side...
...and on the other you have people who want no guns. OK, but that's not going to happen, legally OR practically.

Trying to be reasonable when those groups clash is like pissing into the wind.

 

[WhoWee]

? I thought this thread was pretty benign. My position on gun ownership is clear, but I have no personal interest in this issue of scope, beyond the legal arguments. It seemed an interesting technical question.

Thus far, I'm in agreement with Ivan. I don't see much difference between citizens being allowed to own guns for personal and property protection - but be restricted on use - and the Government maintaining a nuclear stockpile, a fleet of warships, an airforce, and countless other weapons - but restricting use of the weapons.

A gun serves as a deterrent to an attack by an equally equipped enemy.

 

[nismaratwork]

Thus far, I'm in agreement with Ivan. I don't see much difference between citizens being allowed to own guns for personal and property protection - but be restricted on use - and the Government maintaining a nuclear stockpile, a fleet of warships, an airforce, and countless other weapons - but restricting use of the weapons.

A gun serves as a deterrent to an attack by an equally equipped enemy.

Guns are deterrents? Huh, I'd never noticed that effect, unless you include nuclear weapons and biological agents under the rubric of "guns".

People seem to shoot each other a lot, even when the situation is highly asymmetric.

 

[JaredJames]

A gun serves as a deterrent to an attack by an equally equipped enemy.

Let's not go down that route. There's nothing to back that up.

Keep the debate to the 2nd Amendment. No need for another gun thread.

 

[WhoWee]

Let's not go down that route. There's nothing to back that up.

Of course there is - you have the right to defend youself against an intruder with a gun in your home. If they don't have a gun - that is another story.

 

[Evo]

Back to the 2nd ammendment everyone, another off topic post and I'll be forced to do cleanup.

BTW, hasn't the OP been answered?

 

[pallidin]

The right to bear arms, in my interpretation, was meant to say that the citizens have the right to armament equal to that of the government.
In theory, this helps prevent a government overthrow of the people.

But, they didn't have nukes back then, and I would be against a private citizen having nukes, or a stealth fighter, etc...

 

[nismaratwork]

The right to bear arms, in my interpretation, was meant to say that the citizens have the right to armament equal to that of the government.
In theory, this helps prevent a government overthrow of the people.

But, they didn't have nukes back then, and I would be against a private citizen having nukes, or a stealth fighter, etc...

I think the new official response to all references back to "original intent" however that's phrased should be:

And yes, the founding fathers wanted you to have the right to bear arms, but the guys who wrote that would pee through all eight layers of their pants if they saw what guns are now. In 1787 shooting a bullet was only slightly faster than throwing one. If you wanted to be bullet proof in 1787 you put on a heavy coat. So with that in mind, I’m all about Americans having guns, as long as they’re the muskets from 1787 that take forever to load.

re: the portion I bolded: Seriously... the founding fathers would take one look at our society and guns would be the last of their concerns. In fact, which do you honestly believe would offend them more: a continuing debate about their ideas, or Utah.

 

[WhoWee]

BTW, hasn't the OP been answered?

I posted the link for the Heller case because it's on point. Here's more.
http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

However, I see two problems with the case. First, the case is focused on the D.C. gun ban. Second, Heller was a police officer - a fact that may have influenced the decision?

 

[Hepth]

As for the OP, are there any online references listing the usage of the "bear arms" outside of the 2nd that was in use at the time, that the SC used in their decisions?

 

[Ivan Seeking]

Back to the 2nd ammendment everyone, another off topic post and I'll be forced to do cleanup.

BTW, hasn't the OP been answered?

By arguing that the second amendment does not apply to the threat of invasion, one is making a 2nd amendment argument and rejecting the premise of the op. This speaks directly to scope of our rights.

I'm not sure if the recent court decisions addressed the issue of invasion, or the right to overthrow a corrupt government. I am familiar with some but not all of the language in the decision.

 

[JaredJames]

By arguing that the second amendment does not apply to the threat of invasion, one is making a 2nd amendment argument and rejecting the premise of the op. This speaks directly to scope of our rights.

Are you speaking of country invasion or home invasion?

So far as the latter goes, despite requests in various places I am yet to be presented with evidence that proves gun ownership acts as a deterrent to such crime. I would welcome a PM with such evidence if anyone has it.

Country invasion, well as far as I'm concerned, if the military fail to defend the place, "I ain't holding out much chance for the public".

 

[russ_watters]

To be honest, as an outsider to this, you are all basing a lot of rage induced arguments on a document that is over 200 years old. Why argue what that says, why not argue what is relevant today? Is it still relevant as written? Are people just arguing for it as a legacy type thing?

The original reason for that clause being in there was that the US relied on a militia for security, both for fighting off the redcoats and the locals.

A written law can't simply be ignored because it is old - that's too arbitrary of a criteria to be useful. The US constitution has an in-built ability to be modified if it is found to be flawed for whatever reason, so if a piece is out of date and needs to be changed (and IMO, this one is/does), it should actually be changed, not just ignored.

Now while I think logic demands this - and more to the point, our leaders swear an oath to it, there are people who would prefer simply ignoring the parts of the Constitution they don't like. That's the reason behind the Republicans opening the new session of Congress by reading it - to remind Democrats that they are required by their oath to follow it.