Gun laws (split from Souter)

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  • #1
Gokul43201
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In my layman opinion, the arguments last year (or the year before - context: DC gun law) that the second clause in the 2nd Amendment is not predicated upon the first, is at least grammatical overreach.
 

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  • #2
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In my layman opinion, the arguments last year (or the year before - context: DC gun law) that the second clause in the 2nd Amendment is not predicated upon the first, is at least grammatical overreach.

If it was, that would create the odd case where gun ownership was only protected provided the owner was a member of a militia. If such was the interpretation, the unintended consequence would be the encouragement of gun owners to form militias.
 
  • #3
Gokul43201
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If it was, that would create the odd case where gun ownership was only protected provided the owner was a member of a militia.
Not true. All that is required is the ability to form a militia (should the need arise).

If such was the interpretation, the unintended consequence would be the encouragement of gun owners to form militias.
For a literalist, unintended consequences ought not to enter into the deliberation. Moreover, a couple centuries ago, this may well have been the intention.
 
  • #4
mheslep
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In my layman opinion, the arguments last year (or the year before - context: DC gun law) that the second clause in the 2nd Amendment is not predicated upon the first, is at least grammatical overreach.
Depends on whether it is a dependent clause or not, yuk, yuk.

Majority opinion Heller:
Held:
1. The Second Amendment protects an individual right to possess 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.
(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause.
The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2–22.)
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf
 
  • #5
Gokul43201
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IMO, the prefatory clause does limit the scope of the operative clause, since it provides the rationale for it. If a jurist is to apply the intent of the framers to a given situation, the rationale used by the framers is paramount. Take away the rationale, and you can no longer determine intent.

From a grammatical point of view, the two clauses are clearly not both independent clauses. The first is a dependent clause. However, the operative clause being an independent clause does not mean it can be interpreted independently of the first.

Example: While in a crowded theater, it is illegal to yell "fire" when there is no such danger.

The first clause is dependent, the second is independent. But interpreting the second independently of the first is clearly nonsensical.

PS: Since this is going a bit far from the thread topic, I'll drop the argument at this point. You may add closing remarks on the side issue, and I'll leave it at that.
 
  • #6


Not true. All that is required is the ability to form a militia (should the need arise).

For a literalist, unintended consequences ought not to enter into the deliberation. Moreover, a couple centuries ago, this may well have been the intention.

Much of the constitution was originally intended to protect individuals and the states from federal interference. The transformation from the "Confederate States" to the "United States" was rather a grudging one. To this effect the Bill of Rights was for the purpose of easing the minds of the anti-federalists and were only intended to limit the powers of the federal government. The vast majority of debate regarding the 2nd amendment regards the ability of the state to pass laws limiting gun ownership and the Supreme Court has never made any ruling limiting the ability of the state to regulate gun ownership. It is one of two of the first ten amendments, which could be applicable to the states, that has never been incorporated in to national citizens' rights (and I do not see how it could be, at least not in the same way as the others, since it has nothing to do with due process). One could argue that any regulation by the federal government on individual gun ownership would interfere with the state's vested interest in these matters and so individual gun ownership must be protected from federal interference as well in order to protect the state interest. The interest in the DC law, and the decision there, is that DC is solely under the federal auspice and so there are no state rights to be infringed upon. The decision is not terribly odd though since I believe it has been a general practice to preserve similar rights to territories as are provided the states excepting political representation.
 
  • #7
mheslep
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IMO, the prefatory clause does limit the scope of the operative clause, since it provides the rationale for it. If a jurist is to apply the intent of the framers to a given situation, the rationale used by the framers is paramount. Take away the rationale, and you can no longer determine intent.

From a grammatical point of view, the two clauses are clearly not both independent clauses. The first is a dependent clause. However, the operative clause being an independent clause does not mean it can be interpreted independently of the first.

Example: While in a crowded theater, it is illegal to yell "fire" when there is no such danger.
I was about to include some independent, explanatory clause examples in my last post but thought better of it as I know you are capable of imagining such:

As it may cause panics, it is illegal to yell "fire" in a crowded theater when there is no such danger.

As a free society depends on the ability of the people to criticise the government they construct, Congress shall make no law abridging the freedom of speech, or of the press.

Given the Church of England has aided in suppressing (or insert your own favourite Jeffersonian complaint here) the rights of free peoples, Congress shall make no law respecting an establishment of religion.

Drop the prefatory clause and in all cases the operative clause still holds. In that last one the prefatory clause is now an anachronism, as are 'militias', but was none the less on the mind of the founders at the time.
 
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  • #8
BobG
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For a literalist, unintended consequences ought not to enter into the deliberation. Moreover, a couple centuries ago, this may well have been the intention.

State militias were the main defense of the United States, with the federal government organizing them into a single fighting force with about the same authority a NATO commander has over the troops that member nations supply to support the NATO mission.

At least until the War of 1812, when the British burned down the capitol. After that experience, the US started to think giving the federal government a little more power had some positive benefits to go along with the negative ones.

In fact, the state militias that supported the Union army and the Confederate army still retained quite a bit of indepence at the start of the Civil War - part of the reason the Confederacy thought it would just be a matter of outlasting the Union. Instead, the Union's early defeats resulted in a quick reorganization with the federal army firmly in charge of all of the state militias under them - part of the reason that the Union army being able to turn the tide of the war (of course, having more factories was a big advantage for the Union army, as well.)
 
  • #9
turbo
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State militias were the main defense of the United States, with the federal government organizing them into a single fighting force with about the same authority a NATO commander has over the troops that member nations supply to support the NATO mission.
Going back a bit farther, we need to examine the motivations of the founding fathers. When the colonists decided to revolt against England, all the adult males (with some small exceptions) were required to train, drill, and bear arms for England. England was unable to field a large standing army here due to lack of manpower, supplies, and funding, so they forced the colonists to serve as a proxy "standing army". Some of the early battles in the Rev War were fought by English regulars against colonial militia-men as the militias attempted to recover stocks of lead balls, powder, patch, and weapons from public armories.

The colonists prevailed, eventually, but with the help of others. It is not uncommon in the northeast to find French Charleville muskets stamped with state and unit militia markings, because the militias were sometimes unable to come up with enough arms to equip and field their militia units, and had to buy them from foreign powers. It is dangerous and historically inaccurate to frame the founders' intentions in modern terms. They lived through "exciting" times and they knew how they pulled through. Even the possibility that common people could organize to fight tyranny was enough to ensure the rights of citizens to bear arms.
 
  • #10
Gokul43201
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Drop the prefatory clause and in all cases the operative clause still holds.
I disagree, and request (the Mentors) that perhaps this side discussion be split off into a separate thread. If that happens, I'll respond in the new thread.
 
  • #11
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Going back a bit farther, we need to examine the motivations of the founding fathers. When the colonists decided to revolt against England, all the adult males (with some small exceptions) were required to train, drill, and bear arms for England. England was unable to field a large standing army here due to lack of manpower, supplies, and funding, so they forced the colonists to serve as a proxy "standing army". Some of the early battles in the Rev War were fought by English regulars against colonial militia-men as the militias attempted to recover stocks of lead balls, powder, patch, and weapons from public armories.

The colonists prevailed, eventually, but with the help of others. It is not uncommon in the northeast to find French Charleville muskets stamped with state and unit militia markings, because the militias were sometimes unable to come up with enough arms to equip and field their militia units, and had to buy them from foreign powers. It is dangerous and historically inaccurate to frame the founders' intentions in modern terms. They lived through "exciting" times and they knew how they pulled through. Even the possibility that common people could organize to fight tyranny was enough to ensure the rights of citizens to bear arms.


I have commonly heard the argument (which I am not saying your making) that the second amendment was only made to apply to state militia. Since the constitution does not reserve the right for the federal government to restrict state militias, if this was the intention, it would already be covered by the tenth amendment.
 
  • #12
turbo
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I have commonly heard the argument (which I am not saying your making) that the second amendment was only made to apply to state militia. Since the constitution does not reserve the right for the federal government to restrict state militias, if this was the intention, it would already be covered by the tenth amendment.
The point I was getting at (poorly) is that it was self-evident to the founding fathers that the rights of citizens to bear arms could secure freedom from tyranny, even in the face of a large professional army. The citizen-soldiers didn't have to be fed or clothed when they were inactive. They were farmers, sailors, shopkeepers, etc, and they supported themselves.

At the time, the founding fathers probably did not foresee a future without militias, in part because travel was arduous and because it would have been prohibitively expensive to field large standing armies and station them all over the colonies for further defense against the English. We should not parse the "militia" phrase too closely in terms of just who has the right to bear arms, because the founders had the expectation that the citizenry would participate in the defense of the country. During English rule of the colonies, adult males were forced to serve in militias, train, drill, and conduct expeditions on behalf of the crown. The founders had every reason to expect that the citizens would come to the defense of the country again, if necessary, to protect their hard-earned freedom from England.
 
  • #13
IMP
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Drop the prefatory clause and in all cases the operative clause still holds.

I agree completely.
 
  • #14
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I'm not sure what the problem is, apart from anti-gun law folks trying to stretch their imaginations here. The common citizen has had the power to own a firearm since the time the country was started. If they think they are going to reverse the 2nd amendment using the argument of grammar, they are mistaken - as shown by the supreme court decision. Stare decisis.
 
  • #15
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IMO, the prefatory clause does limit the scope of the operative clause, since it provides the rationale for it. If a jurist is to apply the intent of the framers to a given situation, the rationale used by the framers is paramount. Take away the rationale, and you can no longer determine intent.

if a militia is the intent, then shouldn't ownership of "assault" rifles be the unrestricted norm?
 
  • #16
drankin


if a militia is the intent, then shouldn't ownership of "assault" rifles be the unrestricted norm?

Yes, definitely. If this argument went to the SC it would be hard to argue against considering precedent and intent of the Second Amendment.
 
  • #17
turbo
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if a militia is the intent, then shouldn't ownership of "assault" rifles be the unrestricted norm?
There is a weakness in that, though. Most "assault" rifles are cosmetic semi-auto versions of the military's .223 caliber machine guns. As the military is finding out in Afghanistan, the limited range and accuracy of such guns is a detriment when facing foes at long distances. Frankly, if I had to face soldiers armed with those weapons, I would prefer to be armed with my father's 40+ year old Remington 742 Woodsmaster. .30-06 caliber, semi-auto, with easily-obtainable ammunition. Just stay out of effective .223 range and pick them off.

The flak over "assault weapons" is ridiculous, because the bans applied to guns with folding stocks, bayonet lugs, flash-suppressors, pistol-grip stocks; none of which make the guns more dangerous to law-enforcement or citizens. Normal semi-auto hunting rifles in larger calibers (.30 cal and up) are far more potent weapons, and they face no restrictions because they don't look like they were made by Mattel.
 
  • #18
BobG
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There is a weakness in that, though. Most "assault" rifles are cosmetic semi-auto versions of the military's .223 caliber machine guns. As the military is finding out in Afghanistan, the limited range and accuracy of such guns is a detriment when facing foes at long distances. Frankly, if I had to face soldiers armed with those weapons, I would prefer to be armed with my father's 40+ year old Remington 742 Woodsmaster. .30-06 caliber, semi-auto, with easily-obtainable ammunition. Just stay out of effective .223 range and pick them off.

The flak over "assault weapons" is ridiculous, because the bans applied to guns with folding stocks, bayonet lugs, flash-suppressors, pistol-grip stocks; none of which make the guns more dangerous to law-enforcement or citizens. Normal semi-auto hunting rifles in larger calibers (.30 cal and up) are far more potent weapons, and they face no restrictions because they don't look like they were made by Mattel.

Depends on the style of warfare that's being fought. In most "traditional" wars, the battle is usually won by who shoots the most, the fastest, since it's not very safe to expose yourself long enough to be aiming at anyone in particular.

It is true that many of the "battles" in both Afghanistan and Iraq are really sniper battles instead of one army against another.

When it comes to mass casualties of civilians, I think automatic weapons in a closed area (school, office building, etc) would be the bigger threat.
 
  • #19
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Depends on the style of warfare that's being fought. In most "traditional" wars, the battle is usually won by who shoots the most, the fastest, since it's not very safe to expose yourself long enough to be aiming at anyone in particular.

I'm not sure I buy this, in Vietnam they had to make the M16 from full auto to 3 round burst because soldiers were wasting so much ammo and hitting nothing.

When it comes to mass casualties of civilians, I think automatic weapons in a closed area (school, office building, etc) would be the bigger threat.

Perhaps that's true, but it has no bearing on what the 2nd amendment says or means - it's not about protecting civilians in schools or office buildings. They can conceal carry if they are worried about an attack. Oh wait, no they cant - thanks to the same anti gun law people. :rolleyes:
 
  • #20
turbo
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Depends on the style of warfare that's being fought. In most "traditional" wars, the battle is usually won by who shoots the most, the fastest, since it's not very safe to expose yourself long enough to be aiming at anyone in particular.

It is true that many of the "battles" in both Afghanistan and Iraq are really sniper battles instead of one army against another.

When it comes to mass casualties of civilians, I think automatic weapons in a closed area (school, office building, etc) would be the bigger threat.
It is becoming quite evident that the cheaply-made Kalashnikovs with stamped metal receivers are proving superior at long ranges to the .223s that our troops carry. The US troops could bypass that cartridge, (known as an equivalent to the .308 here) and jump back a bunch of years to the M-1 rifle chambered for .30-06 and be much farther ahead in Afghanistan. Heavy, but reliable semi-automatic rifle with deadly accuracy at long ranges. There is a reason why M-1s are popular match rifles, and there is a reason why SWAT teams usually standardize on .30-06 bolt action rifles as sniper rifles. Range, predictable bullet drop, and impressive accuracy. Spraying little bullets around at ranges unsuitable for the calibers and loads might look good to military strategists, but actually placing shots at range with cartridges capable of doing real harm? That may sound like a step back, but in some terrains and with some foes, it can be a giant step forward. When someone develops a hand-held lightweight automatic rifle that can handle that 104+ year old load and not injure the shooter, we will see a giant advance in military effectiveness.

BTW, the gold standard for accuracy in the US match competitions is Springfield .30-06 bolt action rifles with star-gauged barrels. Why should our troops use less-effective weapons in terrain that demands the best?
 
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  • #21


if a militia is the intent, then shouldn't ownership of "assault" rifles be the unrestricted norm?

I believe that the federal government only restricts the sale, transport, and manufacture of such weapons taking its authority from the commerce clause. They can not regulate "ownership" though you could possibly argue that restricting access necessarily restricts ownership.

Since the 2nd amendment only applies to the fed states are free to legislate bans on guns.
 
  • #22
Al68


I believe that the federal government only restricts the sale, transport, and manufacture of such weapons taking its authority from the commerce clause. They can not regulate "ownership" though you could possibly argue that restricting access necessarily restricts ownership.
Federal law does regulate ownership in many ways, although the "assault weapons ban" itself has expired. For example, mere possession of an unregistered automatic weapon is a federal crime, and only grandfathered weapons may be registered and transferred at $200 each (last I heard), background check, and a couple months wait. And federal laws are enforced even if the weapon in question was never involved in interstate commerce, such as home-built or manufactured and sold in-state.

As far as the types of weapons covered by the 2nd amendment, it seems obvious that weapons suitable for battle are the type covered. Anti-gun folks commonly cite the Supreme Court decision in U.S. v Miller, falsely claiming it said the 2nd amendment only applied to militias. Anyone (like me) who has ever read that decision knows that to be false. What it actually said was that the sawed off shotgun in question was not protected because it was not shown to the court to be a militarily useful weapon, not because its possessor wasn't a member of a militia. The fact that the person convicted wasn't a militia member wasn't even an issue in the case.
 
  • #23
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I believe that the federal government only restricts the sale, transport, and manufacture of such weapons taking its authority from the commerce clause. They can not regulate "ownership" though you could possibly argue that restricting access necessarily restricts ownership.

Since the 2nd amendment only applies to the fed states are free to legislate bans on guns.

of course it does. to think otherwise would be as silly as suggesting restricting the sale, transport, and manufacture of computers, televisions, and printing presses doesn't restrict speech.
 
  • #24
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Federal law does regulate ownership in many ways, although the "assault weapons ban" itself has expired.

What a nonsense ban, designed to confuse and instill fear in the ignorant public on semi-automatic weapons :rolleyes:.

It never ceases to amaze me as to how ignorant these people are.

BRQqieimwLQ&feature=related[/youtub...chicago.com/dpp/news/chicago-gun-ban-20100520

But the mayor got testy when a reporter questioned the ban's effectiveness in light of what happened. Holding a rifle in his hands the mayor defended the ban.

"Oh, it's been very effective, if I put this up your butt you'll find out how effective it is. If you put a round up your, you'll know," he said.

Congratulations Mayor Daley, you sir are a donkey.

DHSMMcJEQqU&feature=related[/youtube]
 
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  • #25
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Since the 2nd amendment only applies to the fed states are free to legislate bans on guns.

A question about the 2nd amendment (which I've just looked up). Can someone please explain why flag waving redneck types (if you'll allow this one stereotype:tongue:) rant and rave about the "right to bear arms", conveniently forgetting about the "regulated militia" bit.

Last time I checked, the US now has a professional standing army. It's as if these people still want to go around on horseback, carrying dualing pistols, randomly screaming "yeeeee haaa" whilst doing those bizarre rope tricks and, erm, shooting people.

In the UK, we recently had our very own gun-related massacre. The thing is, gun laws here are much, much stricter than in the US. I can't understand how any responsible government can allow lax (and in the case of the US, virtually non existent) gun control regulations. Governments are by definition meant to protect people, no?
 

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