SCOTUS takes up DC gun ban

[shecky]

Recent news (http://www.scotusblog.com/wp/uncategorized/court-agrees-to-rule-on-gun-case/), this seems to be a rare instance where the 2nd Amendment will face interpretation by the Supreme Court. The core issue seems to be whether gun ownership is an individual right rather than a collective right.

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”


Any lawyer types willing to offer insight on the implications of this case, however decided?

[Zep]

What, ANOTHER "gun rights" thread??? :rolleyes:

[shecky]

Yeah, for some reason it just isn't going away.

[Zep]

The same could be said about the guns... ;)

[Beerina]

It would seem it's an individual right, even if the rationale listed in the second ammendment is collective. And the real reason, which isn't hunting or even self-defense, is so the people can provide resistence to an overbearing government. Hence outlawing guns, which can only be done by the government, would seem to be forbidden as the entity that's doing the outlawing is the very entity The People reserve their right to keep guns for use against against.

[Zep]

The amendment talks about it being necessary only to form militias for the defense of the state/union, not to rise against an oppressive government. I read that as being able to defend collectively against enemies without, not enemies within.

Besides, it seems also to be couched in the technologies and thought-processes of the late 1700's!

[WildCat]

The amendment talks about it being necessary only to form militias for the defense of the state/union, not to rise against an oppressive government. I read that as being able to defend collectively against enemies without, not enemies within.
2 clauses in the 2nd Amendment, 1st one for the state militias, the second for "the people".

At any rate, there is an ongoing thread about this case here (http://forums.randi.org/showthread.php?t=76683) that I started last March.

[shecky]

I'm not that interested in the militia/people argument, so much as the impact the ruling would have in either case. IOW, how will the the ruling affect me?

My pessimistic view, as a completely ignorant non lawyer, is nothing will significantly change for the average gun user/buyer. Except, perhaps, for those living in DC.

[Zep]

2 clauses in the 2nd Amendment, 1st one for the state militias, the second for "the people".

At any rate, there is an ongoing thread about this case here (http://forums.randi.org/showthread.php?t=76683) that I started last March.Well there you go.

And having launched this ship...erm, thread, FSM bless all who sail in her!

[littlehulkster]

I'm not that interested in the militia/people argument, so much as the impact the ruling would have in either case. IOW, how will the the ruling affect me?

My pessimistic view, as a completely ignorant non lawyer, is nothing will significantly change for the average gun user/buyer. Except, perhaps, for those living in DC.


If the Supreme Court decides that gun ownership is an individual right, you can expect to see NRA lawyers besieging Chicago, Sacramento and NYC, just to name a few.

It might not effect you, but it's going to make things better for gun owners in more restrictive states.

[shecky]

The chances of a sea change in the SC seem small to me. I can see places like Chicago and NYC facing some change in favor of gun rights should the SC rule to abolish the ban. But those places are very much the exception to the rest of the country, being very restrictive along the lines of DC. And I think the impact on a State like CA will be much weaker, as the bans in that State are much more specific.

However, this case seems to have many gun rights advocates licking their chops, even if the rewards don't seem particularly impressive, at least in the short run. But perhaps I'm missing something. The folks on volokh.com are long on legalese, but short on specifics. What are the implications of Parker v. DC being upheld or overturned? Does all that stuff involved in getting, say, a short barreled shotgun go out the window at the federal level? Do CA residents get to buy a pistol not on the approval list? Does Parker v. DC have any effect on such things at all?

Interestingly, the NRA seems to have been unenthusiastic about this case (http://www.examiner.com/a-653443%7ERobert_A__Levy__Should_Congress_or_the_co urts_decide_D_C__gun_ban_s_fate_.html), according to Robert A. Levy, one of the lawyers involved.

[BPSCG]

I've always been a little puzzled by the rhetorical throat-clearing in the 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Why the italicized words? You don't see anything like that in the other "Bill of Rights" amendments:

Open expression of opinion being necessary to the security of a free State, the right of the people to keep and maintain a free press, shall not be infringed.

The other amendments simply say you can't be forced to be a witness against yourself, your house can't be searched without a warrant, the government may not impose cruel and unusual punishments, and so forth. None of these other amendments attempt to give any rationale - that's a distinction you only see in the second. Anyone know why?

[WildCat]

I've always been a little puzzled by the rhetorical throat-clearing in the 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Why the italicized words? You don't see anything like that in the other "Bill of Rights" amendments:

Open expression of opinion being necessary to the security of a free State, the right of the people to keep and maintain a free press, shall not be infringed.

The other amendments simply say you can't be forced to be a witness against yourself, your house can't be searched without a warrant, the government may not impose cruel and unusual punishments, and so forth. None of these other amendments attempt to give any rationale - that's a distinction you only see in the second. Anyone know why?
The Appellate Court decision (http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf) goes over this in detail.

[CFLarsen]

It is very interesting - revealing, in fact, that you need legal decisions at much later dates to find out what the Founding Fathers really meant. Instead of the turning to historians, turn it into a courthouse drama.

But then, if you turn to the historians, there is that pesky "Creator" who endowed (active) you your rights. Which, contrary to the gun right, is only meant to be taken metaphorically.

Fascinating how flexible people can be, when it comes to justifying themselves.

[hgc]

It is very interesting - revealing, in fact, that you need legal decisions at much later dates to find out what the Founding Fathers really meant. Instead of the turning to historians, turn it into a courthouse drama.

But then, if you turn to the historians, there is that pesky "Creator" who endowed (active) you your rights. Which, contrary to the gun right, is only meant to be taken metaphorically.

Fascinating how flexible people can be, when it comes to justifying themselves.


What? Historians are going to decide on legal precedent? Are you nuts?

In any case, any historian woulid tell you that the founders' intent on gun possession is that it's OK for the purpose of shooting marauding alligators.

[King of the Americas]

Interesting that the Appellate Court did not address the term "...to keep..."

I mean how does someone/the People, "keep" arms they intend to bare, to secure a free state?

Does that mean we have to do as the Minute Men of old, did? And keep our muskets at the ready atop our fireplaces? (*Which is a strange place to put a 'firearm', containing explosive powder, right next to an open flame!?)

Am I a constructionist if I believe you should read each Amendment as a whole thing, and take the broadest possible interpretation, erring on the side of liberty and freedom? RATHER than picking it a part and choosing which part or term(s) to give greater relivance to?

[ponderingturtle]

It would seem it's an individual right, even if the rationale listed in the second ammendment is collective. And the real reason, which isn't hunting or even self-defense, is so the people can provide resistence to an overbearing government. Hence outlawing guns, which can only be done by the government, would seem to be forbidden as the entity that's doing the outlawing is the very entity The People reserve their right to keep guns for use against against.

And this is why we need to legalize SAM's and IED's. If you are going to fight the goverment you want effective weapons, not these BS handguns.

[King of the Americas]

I disagree, ponderingturtle.

I think handguns, small and very easy to hide, would be MUCH more effective against our government...

"Government" are the people in office buildings, fighting our "Army" would be another matter altogether.

We'd LOSE a fight with our Army, but with a few well placed assinations one could force the Government to reconsider its course of action. Mobs, simple militias, and even armed insurgents are somewhat easy to put down. Armed individuals with almost indetectible weapons...that's a bit tougher to defend against.

[ponderingturtle]

I disagree, ponderingturtle.

I think handguns, small and very easy to hide, would be MUCH more effective against our government...

"Government" are the people in office buildings, fighting our "Army" would be another matter altogether.

See Oklahoma city.

We'd LOSE a fight with our Army, but with a few well placed assinations one could force the Government to reconsider its course of action. Mobs, simple militias, and even armed insurgents are somewhat easy to put down. Armed individuals with almost indetectible weapons...that's a bit tougher to defend against.

Hence the IED's and how effective those are against our military.

Bombing a motorcade is a very effective assassination strategy for those technically sophisticated enough. Use the right sensors and an explosively forged projectile and you can pick one part of one car out of a motorcade.

And note that it says Arms, not guns, so if it is an individual right why is it so limited in what people can buy?

[BPSCG]

The Appellate Court decision (http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf) goes over this in detail.Good link, but I couldn't find an answer to my question in there. They do discuss what they call the "prefatory phrase" ("a well regulated militia..."), and discuss what it means and its historical context, but I still didn't see anything that explains why that phrase has to be in there. Why was it necessary? What would have been wrong with the second amendment if it had simply read, "The right of the people to keep and bear arms shall not be infringed," without the prefatory phrase?

[TonyL]

I've always been a little puzzled by the rhetorical throat-clearing in the 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Why the italicized words? You don't see anything like that in the other "Bill of Rights" amendments:

Open expression of opinion being necessary to the security of a free State, the right of the people to keep and maintain a free press, shall not be infringed.

The other amendments simply say you can't be forced to be a witness against yourself, your house can't be searched without a warrant, the government may not impose cruel and unusual punishments, and so forth. None of these other amendments attempt to give any rationale - that's a distinction you only see in the second. Anyone know why?

Amendment writing by committee. The first ten amendments, the 27th amendment, and several others that never passed, were proposed multiple times by multiple people and groups before finally being submitted to congress and then revised by committee before eventually passing in their current form. Some of that history can be found here (http://www.constitution.org/dhbr.htm ). Some of the proposed versions of the second amendment include:

1787 proposal: "That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."

1789 proposal: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. "

My non-expert interpretation is that the preamble is the watered down version of saying that a free standing army should be avoided during a time of peace combined with a general explanation for why the right is important. But, as I said, that is a decidedly non-expert opinion based on a limited amount of research.

[Beerina]

The amendment talks about it being necessary only to form militias for the defense of the state/union, not to rise against an oppressive government. I read that as being able to defend collectively against enemies without, not enemies within.


Close, but no cigar.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Security encompasses not just external threats, but internal as well.

[Suddenly]

Argument from huge bold type is a fallacy. Everyone can read the words, interpretation can vary.

The history of second amendment jurisprudence has been clear that bearing arms must be in relation to a militia to be covered by the second amendment. There are now two circuits that have discarded this history in favor of an alternate history.

That is it. The Court will decide where it wants to go, rest assured their analysis will rest on something deeper than large bold fonts and failure to appreciate the ambiguousness of language.*



* In the event of an opinion written by Justice Thomas, disregard this sentence.

[CFLarsen]

What? Historians are going to decide on legal precedent? Are you nuts?

No, that's precisely what I am not saying. Try to read it again.

In any case, any historian woulid tell you that the founders' intent on gun possession is that it's OK for the purpose of shooting marauding alligators.

Hardly.

Security encompasses not just external threats, but internal as well.

What is a "free" state?

[gumboot]

It must suck to live in a country where you have so little trust for your government...

-Gumboot

[Suddenly]

It is very interesting - revealing, in fact, that you need legal decisions at much later dates to find out what the Founding Fathers really meant. Instead of the turning to historians, turn it into a courthouse drama.


Err... there is no "courthouse drama." The process of going through the Supreme Court is about as non-dramatic as it gets. It is almost entirely a written process. I'm doing it right now. Feel the tension?

Anyway...The Court is going to turn to historians as to whether the current jurisprudence is based on proper interpretation. The lawyers will cite historical sources as well as legal ones. In effect, we are turning to historians. It is almost certain that historical organizations and historians will file third party briefs with the court as to the historical aspects of this case.

But then, if you turn to the historians, there is that pesky "Creator" who endowed (active) you your rights. Which, contrary to the gun right, is only meant to be taken metaphorically.

This is relevant how exactly. Does the Danish blaphemy law enter into this as well?


Fascinating how flexible people can be, when it comes to justifying themselves.

Yeah. I read this post once where someone used a picture of a woman with a cane as part of an argument that she was not disabled.

[Rob Lister]

It must suck to live in a country where you have so little trust for your government...

-Gumboot

nay, nay, mooseface...That's practically the only fun we have.

[hgc]

No, that's precisely what I am not saying. Try to read it again.


Then I'm sure you've thought this through. How does it work, exactly? Is there some kind of Historian Authority to pass judgement? How are historians chosen to serve on this body? Elected or appointed? Over what matters do they have authority? How is that authority invoked? To what branch of government do they belong?

[Thunder]

The 2nd Amendment is clearly meant to be within the context of a well regulated militia. Anyone who doesn't understand that is willfully stupid.

[Cain]

What happened to all of the conservatives championing "states' rights"? If we go to intent, then the purpose of the "Bill of Rights" was largely to limit a powerful central government. Pre-civil war especially, citizens' state/regional/local identities were relatively significant; the United States was a "they" whereas now it's an "it." Today we say "the United States is" rather than "the United States are..." The issue basically comes down to federalism. On that front, I think Thomas believes states should be allowed to establish official churches, so I am guessing he should logically be bound to the crazy belief that the states (and local authorities) have the power to regulate and control deadly weapons.

[WildCat]

The 2nd Amendment is clearly meant to be within the context of a well regulated militia. Anyone who doesn't understand that is willfully stupid.
The problem is the words "the people". Where else in the Constitution does "the people" refer to state-sanctioned groups only?

[Thunder]

If it wasn't supposed to be within the context of a militia...then why even mention the militia?

[Suddenly]

What happened to all of the conservatives championing "states' rights"? If we go to intent, then the purpose of the "Bill of Rights" was largely to limit a powerful central government. Pre-civil war especially, citizens' state/regional/local identities were relatively significant; the United States was a "they" whereas now it's an "it." Today we say "the United States is" rather than "the United States are..." The issue basically comes down to federalism. On that front, I think Thomas believes states should be allowed to establish official churches, so I am guessing he should logically be bound to the crazy belief that the states (and local authorities) have the power to regulate and control deadly weapons.

These cases all involve federal gun laws, not state. Applying the second amendment to a state law would require the reversal of another large body of caselaw, at this point it is settled that the second does not apply to state action.

As it stands this would leave the regulation of firearms up to the states...

[hgc]

If it wasn't supposed to be within the context of a militia...then why even mention the militia?


Why are you even debating this point? Don't you know that Larsen's accredited superhero historians will tell us all what it means?

[WildCat]

If it wasn't supposed to be within the context of a militia...then why even mention the militia?
Because they wanted a militia and an armed populace? Thus, the 2 clauses of the 2nd Amendment.

Why would you think "the people" in the 2nd Amendment are different than "the people" in the 4th or 1st Amendments?

[CFLarsen]

It must suck to live in a country where you have so little trust for your government...

...the government they elect, and claim such control over. And yet, they fear it so much.

Err... there is no "courthouse drama." The process of going through the Supreme Court is about as non-dramatic as it gets. It is almost entirely a written process. I'm doing it right now. Feel the tension?

SCOTUS decisions are always something that cause a lot of often heated debate in American society.

Anyway...The Court is going to turn to historians as to whether the current jurisprudence is based on proper interpretation. The lawyers will cite historical sources as well as legal ones. In effect, we are turning to historians. It is almost certain that historical organizations and historians will file third party briefs with the court as to the historical aspects of this case.

Of course. But we are not just talking about how historians interpret the sources to understand why Claudius invaded Britain. We are also talking about legal consequences that will have a major impact on a whole society.

It's like having Bible literalists rewriting biology books.

This is relevant how exactly.

They had to get their rights from somewhere - so they, rather cleverly, chose what was above the British king's authority.

Then I'm sure you've thought this through. How does it work, exactly? Is there some kind of Historian Authority to pass judgement? How are historians chosen to serve on this body? Elected or appointed? Over what matters do they have authority? How is that authority invoked? To what branch of government do they belong?

Try to learn a bit about what historians do. They aren't elected or appointed, nor do they have government authority.

The 2nd Amendment is clearly meant to be within the context of a well regulated militia. Anyone who doesn't understand that is willfully stupid.

The key is "well regulated", of course. A posse thrown together ad hoc in the local villages cannot possibly be argued to be a "well regulated" militia. That kind of regulation comes from governing bodies.

The problem is the words "the people". Where else in the Constitution does "the people" refer to state-sanctioned groups only?

Here we have this odd political dichotomy we don't really see elsewhere to this degree: The notion that there are two entirely separate and opposite worlds, "the people" and "the government". It's as if the government can exist without people.

Because they wanted a militia and an armed populace? Thus, the 2 clauses of the 2nd Amendment.

Why would you think "the people" in the 2nd Amendment are different than "the people" in the 4th or 1st Amendments?

Where does it say they wanted an armed populace?

[WildCat]

Here we have this odd political dichotomy we don't really see elsewhere to this degree: The notion that there are two entirely separate and opposite worlds, "the people" and "the government". It's as if the government can exist without people.
So the 1st Amendment gives the right of the government to peacefully assemble and to petition the government? The 4th Amendment gives the government the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures? The 9th Amendment gives the government rights not enumerated in the Constitution?

Sorry Claus, your dalliance into the role of US Constitution expert is as laughable as Libertarian loon Michael Badnarik. The Constitution makes clear when it is referring to the people vs. the government. By using the highly confusing terms "the people" when referring to, uh, people and "the government", "the United States" or "the States" when referring to government in general, the Federal government, or state governments respectively. Very confusing I know... :rolleyes:

Where does it say they wanted an armed populace?
"the right of the people to keep and bear arms". Or are you claiming they waited until the Bill of Rights to allow the government to be armed despite the establishment of the military in the Articles?

Bizarre even for you Claus.

[shuize]

It must suck to live in a country where you have so little trust for your government...

-Gumboot


The Second Amendment was written at a time when the population in general and the framers in particular, having just thrown off the British yoke through armed rebellion, certainly did not trust large, central government. In fact, the entire structure of U.S. Constitution is shaped out of a distrust for government.

I read the appellate decision in Heller (originally Parker, I believe, but Heller was the only plaintiff found to have standing, thus the name change). I found the majority opinion persuasive. I'd be interested in discussing it with anyone else who has read it.

Interesting that the Appellate Court did not address the term "...to keep..."


I think you are confusing the appellate court's comments about the lower court decision with the appellate decision itself which goes into considerable detail about the terminology as well as the historical context.

[Suddenly]

The problem is the words "the people". Where else in the Constitution does "the people" refer to state-sanctioned groups only?



That it may be unique is hardly proof, or even evidence, of it somehow being a throwaway phrase. In fact, as it is the only place the framers did this can be seen as further evidence that the right is conditioned thus. The framers were rather precise with language.

Yes, it is different. Maybe that means it is, you know, different.

[Ziggurat]

The 2nd Amendment is clearly meant to be within the context of a well regulated militia. Anyone who doesn't understand that is willfully stupid.

Doesn't matter. Freedom of the press was clearly meant to be within the context of publishing being done by a literal press, as in pressing print onto paper. Are we to conclude that there is no freedom of the press regarding the internet because there are no actual presses involved? I think not. Whatever context the right was made in, whatever the original justification, the right itself remains an individual right, and exists even in non-militia contexts. That's why it doesn't say that congress can't disarm militias, it says congress can't disarm people.

[chulbert]

The 9th Amendment gives the government rights not enumerated in the Constitution?

The 9th amendment gives the people rights not enumerated in the government.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[CFLarsen]

So the 1st Amendment gives the right of the government to peacefully assemble and to petition the government? The 4th Amendment gives the government the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures? The 9th Amendment gives the government rights not enumerated in the Constitution?

Sorry Claus, your dalliance into the role of US Constitution expert is as laughable as Libertarian loon Michael Badnarik. The Constitution makes clear when it is referring to the people vs. the government.

Your choice of words reveal that I am not wrong at all. To you, it has to be the people vs. the government.

"the right of the people to keep and bear arms".

That's not the same as wanting to have an armed populace. It only says that they have the right to keep and bear arms. It doesn't say they have a duty to keep and bear arms.

Or are you claiming they waited until the Bill of Rights to allow the government to be armed despite the establishment of the military in the Articles?

Bizarre even for you Claus.

A clever, but dishonest debating tactic: You ask if I think something crazy, jump to the conclusion that I have answered in the affirmative, and then call it "bizarre" even for me.

Or are you eating your own feces with a curry dressing, while dancing naked at full moon, chanting Britney Spear songs? Bizarre even for you.

See how it works?

[BPSCG]

That it may be unique is hardly proof, or even evidence, of it somehow being a throwaway phrase. In fact, as it is the only place the framers did this can be seen as further evidence that the right is conditioned thus. The framers were rather precise with language. Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
I guess that means that the framers had no objection to punishments that were cruel, as long as they weren't also unusual. Or punishments that were unusual, as long as they weren't also cruel.

Else, being "rather precise with language," they would have written, "nor cruel nor unusual punishments inflicted," or "neither cruel punishments nor unusual punishments inflicted," or some other wording that would have removed any ambiguity.

And in fact, we read occasionally about some unusual punishment being inflicted on someone, usually involving public humiliation or something (http://forums.randi.org/archive/index.php/t-88417.html).

[Suddenly]

I guess that means that the framers had no objection to punishments that were cruel, as long as they weren't also unusual. Or punishments that were unusual, as long as they weren't also cruel.

Else, being "rather precise with language," they would have written, "nor cruel nor unusual punishments inflicted," or "neither cruel punishments nor unusual punishments inflicted," or some other wording that would have removed any ambiguity.
They meant "cruel and unusual," your incredulity notwithstanding: "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." Harmelin v. Michigan (http://www.law.cornell.edu/supct/html/89-7272.ZO.html), 501 U.S. 957, 994-5 (1991). Scalia was noting that while a life sentence with no possibility of parole might be cruel for the offense of drug dealing, it wasn't unusual. He goes through an exhaustive analysis of the clause in that opinion.

The whole thing was cribbed word for word from the 1689 English Bill of Rights, several states already had this language when the constitution was ratified. It was already a term of art. We must not forget that those writing in the eighteenth century had different conventions of usage. The addition of the phrase can be mulled over by historians and judges, my only real wish is that the Court knife through the "collective v. individual right" false dichotomy. I'd also like a pony.

[BPSCG]

They meant "cruel and unusual," your incredulity notwithstanding: "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." Harmelin v. Michigan (http://www.law.cornell.edu/supct/html/89-7272.ZO.html), 501 U.S. 957, 994-5 (1991). Scalia was noting that while a life sentence with no possibility of parole might be cruel for the offense of drug dealing, it wasn't unusual. He goes through an exhaustive analysis of the clause in that opinion.

The whole thing was cribbed word for word from the 1689 English Bill of Rights, several states already had this language when the constitution was ratified. It was already a term of art. We must not forget that those writing in the eighteenth century had different conventions of usage. The addition of the phrase can be mulled over by historians and judges, my only real wish is that the Court knife through the "collective v. individual right" false dichotomy. I'd also like a pony.Are you saying that punishments that are only cruel, or only unusual, are not prohibited?

[Suddenly]

SCOTUS decisions are always something that cause a lot of often heated debate in American society.

Any important governmental action will cause this sort of thing. So what is your beef with this?


Of course. But we are not just talking about how historians interpret the sources to understand why Claudius invaded Britain. We are also talking about legal consequences that will have a major impact on a whole society.
So? Legislative intent is part of our legal system. Part of understanding intent is understanding context. Understanding context requires historical knowlege.

Understanding what was meant includes understanding the reasons it was written.


It's like having Bible literalists rewriting biology books.

Nah. More like having Italian footballers rewriting English translations of Tolstoy.



They had to get their rights from somewhere - so they, rather cleverly, chose what was above the British king's authority.


Uh huh. I've been through the "Legal Positivism v. Natural Rights Theory" debate more than once. Some people reject the idea that rights are limited to what the government protects, in other words that there are innate rights that, if a government tries to abridge such rights, that government is not worthy of respect.

You don't have to get these rights from anywhere. If you believe in God, or nature's god, or flying pasta I guess you can go there. Not necessary. These rights can just "be."

Both legal positivism and natural law theory are flawed in that the pure form of either is a recipe for disaster. Each needs a shot of the other to create a workable government.

[Suddenly]

Are you saying that punishments that are only cruel, or only unusual, are not prohibited?

Not me. Justice Scalia seems to be saying it. He gets into an "and v. or" discussion in that opinion. Click on the link if you are curious about the detail.

[CFLarsen]

Any important governmental action will cause this sort of thing. So what is your beef with this?

So? Legislative intent is part of our legal system. Part of understanding intent is understanding context. Understanding context requires historical knowlege.

Understanding what was meant includes understanding the reasons it was written.

The "beef" I have is that if there really is such confusion as to what the Founding Fathers really meant, maybe it is time to re-evaluate the constitution. You know, bring it up to date. Perhaps even scrap it and start all over again.

If nothing else, then to make it reflect the society it is to govern today, and not rely on some old document from over 200 years ago which nobody can agree on what means anyway.

Case in point: A well-regulated militia is supposed to protect you against invading armies or the US military - by far the strongest military force ever built?

Get real. You don't live in the world of muskets anymore.

Nah. More like having Italian footballers rewriting English translations of Tolstoy.

If you like. But what does that say about how effective the SCOTUS is?

Hmmm?

Uh huh. I've been through the "Legal Positivism v. Natural Rights Theory" debate more than once. Some people reject the idea that rights are limited to what the government protects, in other words that there are innate rights that, if a government tries to abridge such rights, that government is not worthy of respect.

You don't have to get these rights from anywhere. If you believe in God, or nature's god, or flying pasta I guess you can go there. Not necessary. These rights can just "be."

Both legal positivism and natural law theory are flawed in that the pure form of either is a recipe for disaster. Each needs a shot of the other to create a workable government.

Name the rights, then. All of them.

[Ziggurat]

If Claus sees a Supreme Court justice with a gun, he's going to kill them.

[Suddenly]

The "beef" I have is that if there really is such confusion as to what the Founding Fathers really meant, maybe it is time to re-evaluate the constitution. You know, bring it up to date. Perhaps even scrap it and start all over again.

If nothing else, then to make it reflect the society it is to govern today, and not rely on some old document from over 200 years ago which nobody can agree on what means anyway.

Case in point: A well-regulated militia is supposed to protect you against invading armies or the US military - by far the strongest military force ever built?

Get real. You don't live in the world of muskets anymore.

They do make it reflect today's society. Constitutional jurisprudence is much more complex than it is made out to be by some people. Framer's intent is not the end of the story, just one piece in a larger puzzle.

Anyway, history is lousy with tales of the effectivness of an armed resistance. These days it is proving to be the only practical defense against an overwhelming military force. Yes we do not live in the world of muskets. We have far better weapons that make this sort of insurgency all the more practical.






If you like. But what does that say about how effective the SCOTUS is?

Hmmm?

Probably effective as a Sweedish skier trying to explain the merits of a double suited AA35 in a seven way capped kill pot.

Your initial claim made no sense, was my point.



Name the rights, then. All of them.

Again, using common legal positivist based arguments against the basic concepts of natural law theory is a silly parlor game.

The problem with a natural rights approach is that it is vague and people can disagree. This is why there needs to be a shot of legal positivism to have a coherent system of government.

The problem with legal positivism is that there is no such thing as an illegal government. If a duly elected government passes laws preventing a basic right like the freedom to complain about the government, the proponent has no real basis for complaint as rights are defined by that government.

One is vague, the other subject to great abuse.

[CFLarsen]

They do make it reflect today's society. Constitutional jurisprudence is much more complex than it is made out to be by some people. Framer's intent is not the end of the story, just one piece in a larger puzzle.

Anyway, history is lousy with tales of the effectivness of an armed resistance. These days it is proving to be the only practical defense against an overwhelming military force. Yes we do not live in the world of muskets. We have far better weapons that make this sort of insurgency all the more practical.

But you are not, as a citizen, allowed weapons that are effective against your own military. E.g., you can't own nukes.

Why is your government allowed to have weapons that will obliterate you, while not allowing you to defend yourself against them?

Or, since the people is in such control of its own government, why allow the government to be in such an overpowering position? That completely negates any notions of "rights" and a "well-regulated militia".

Probably effective as a Sweedish skier trying to explain the merits of a double suited AA35 in a seven way capped kill pot.

Your initial claim made no sense, was my point.

Again, using common legal positivist based arguments against the basic concepts of natural law theory is a silly parlor game.

Finding out what rights you have is a silly parlor game?

O....K.

The problem with a natural rights approach is that it is vague and people can disagree. This is why there needs to be a shot of legal positivism to have a coherent system of government.

The problem with legal positivism is that there is no such thing as an illegal government. If a duly elected government passes laws preventing a basic right like the freedom to complain about the government, the proponent has no real basis for complaint as rights are defined by that government.

One is vague, the other subject to great abuse.

If you can't name all of the rights, how will you ever know if a new law is against any of these rights?

[Ziggurat]

But you are not, as a citizen, allowed weapons that are effective against your own military. E.g., you can't own nukes.

Guns are effective against militaries. What in the world ever made you think they weren't?

Why is your government allowed to have weapons that will obliterate you, while not allowing you to defend yourself against them?

I'll let you in on a little secret, Claus. Nuclear weapons aren't what governments use to oppress their own citizens. The reasons should be obvious, even to you.

But I'm not sure why you even care. You don't need nuclear weapons, you've got your own bare hands, the second most deadly weapons on earth (the first being Chuck Norris, of course).

[Suddenly]

But you are not, as a citizen, allowed weapons that are effective against your own military. E.g., you can't own nukes.

Guns work. A nuke would be worthless in such a situation.

Why is your government allowed to have weapons that will obliterate you, while not allowing you to defend yourself against them? Because that is how things work. Call me a optimist, but I'm pretty sure my government isn't going to nuke me...

Or, since the people is in such control of its own government, why allow the government to be in such an overpowering position? That completely negates any notions of "rights" and a "well-regulated militia".
Why not?


Finding out what rights you have is a silly parlor game?

O....K.



Well... aren't you clever in your little willfully ignorant way.

If you can't name all of the rights, how will you ever know if a new law is against any of these rights?

In other words, natural rights theory suffers from vagueness and needs an aspect of legal positivism to be of practical use. This is nothing new.

There are tons of literature by natural rights theorists as to the particular rights involved, generally the right to life, liberty, property, the pursuit of happiness, and so on. Part of the strength of this approach is that there is no set list.

[CFLarsen]

Guns work. A nuke would be worthless in such a situation.

Worthless for whom?

Because that is how things work. Call me a optimist, but I'm pretty sure my government isn't going to nuke me...

Are you worried that they will go to war against you?

Why not?

I think you mean "why?". Because you allow your own government to wage war against you.

Well... aren't you clever in your little willfully ignorant way.

I think you mean "Touché".

In other words, natural rights theory suffers from vagueness and needs an aspect of legal positivism to be of practical use. This is nothing new.

They do? A right isn't a right until it has been settled by law?

[BPSCG]

Are you saying that punishments that are only cruel, or only unusual, are not prohibited?
Not me. Justice Scalia seems to be saying it. He gets into an "and v. or" discussion in that opinion. Click on the link if you are curious about the detail.I'm not trying to go Clausian on you here; I'm trying to find out: Is it a largely settled question as to whether cruel punishment is permissible under the Constitution, as long as it is not unusual? Or is it still a matter for debate?

Similarly, is it a largely settled question as to whether unusual punishment is permissible under the Constitution, as long as it is not cruel? Or is it still a matter for debate?

Reason I ask is, I've heard of any number of unusual-only punishments that apparently were never challenged on constitutional grounds, but I don't recall hearing of any such cruel-only punishments.

[Suddenly]

I'm not trying to go Clausian on you here; I'm trying to find out: Is it a largely settled question as to whether cruel punishment is permissible under the Constitution, as long as it is not unusual? Or is it still a matter for debate?

Similarly, is it a largely settled question as to whether unusual punishment is permissible under the Constitution, as long as it is not cruel? Or is it still a matter for debate?

Reason I ask is, I've heard of any number of unusual-only punishments that apparently were never challenged on constitutional grounds, but I don't recall hearing of any such cruel-only punishments.


It is a very long and detailed opinion that goes through the history of the thing and it is a recent case that is good law. The only thing I can add is that some states apply "proportionality" more broadly than the feds. It is a very informative opinion.

It is hard to explain because the jurisprudence is more about "cruel and unusual" as a term of art and the ways it was applied in England, Virginia, and other legal jurisdictions with identical or similar language. The "and v. or" debate is in the context of Scalia examining these various meanings and whether they apply to the language in the US Constitution.

We could say the "and" is settled law, but in the context this is in and of itself meaningless.

[Suddenly]

Worthless for whom?


...

Are you worried that they will go to war against you?
I am not worried that my government will nuke me. I am not worried that my government will declare a state of war on me. The only issue is whether the government becomes oppressive to the point where I decide to become hostile towards it. I don't see this happening. If it did I'd want a gun. This is not complex.


I think you mean "why?". Because you allow your own government to wage war against you.
I missed the "US / Suddenly" war. When did this happen?


They do? A right isn't a right until it has been settled by law?

A legal positivist would agree that a right is not a right until it is settled by law.

A natural rights proponent would not agree, he would say his rights exist outside law, either as a simple fact of existence or drawn from a higher authority.

In general (perhaps too general) European government has descended from a state where the Sovereign was the King, and the people only had what the King would give. This evolved into a more democratic mix, but the core assumption that the rights were given by government stayed. Legal positivism.

American government comes from a rejection of the sovereign, that the individual is sovereign and gives the state limited power to govern. The government has no power to go beyond its role. This is why a list is impossible. Government power is finite and identifiable. One can examine the laws and say what power the government holds. One cannot do the same with the rights of the people. Some are spelled out, some are not. A person holds a right to do anything the government has no power to affect.

[ChaoticLimbs]

Look, redefining the second amendment because you don't agree with the law is retarded. The originators of the Bill of Rights wrote numerous documents explaining their intent with this piece of legislation. If you don't like the law, lead a charge to repeal it as unnecessary.

But for me, since the homo sapiens is the most dangerous land animal out there, and I am surrounded by them, I'm gonna keep a firearm. I like to be armed. Here in New Mexico, I go four wheeling sometimes to very remote places. You might think those places are where firearms would be more appropriate, but you'd be wrong. I've never met anything in the wilderness that could not be dealt with without firearms, but I've known at least 3 people in my life who could not be dealt with in any other way.
Since the police do not hang out in my home or park in my driveway, and since the existence of a-holes cannot be magically reversed, physical violence is still a real and completely reasonable way to deal with those whose immediate intent is to cause you harm.

[ChaoticLimbs]

The 9th amendment gives the people rights not enumerated in the government.
The ninth amendment actually just makes sure that nobody can use the fact that civil liberties have been enumerated in the past to argue that the list is complete and no additional human rights exist.
It's there as a clause to insist that the list may not be complete and that other human rights and dignities not systematically listed by the Bill of Rights are nevertheless recognized as real by the law.

[CFLarsen]

I am not worried that my government will nuke me. I am not worried that my government will declare a state of war on me. The only issue is whether the government becomes oppressive to the point where I decide to become hostile towards it. I don't see this happening. If it did I'd want a gun. This is not complex.

Do you need the 2nd amendment to be able to fight invading armies, then?

I missed the "US / Suddenly" war. When did this happen?

I didn't say the two of you were waging war against each other. I was talking about you, as a citizen, allowing your own government to wage war against you.

A legal positivist would agree that a right is not a right until it is settled by law.

A natural rights proponent would not agree, he would say his rights exist outside law, either as a simple fact of existence or drawn from a higher authority.

What is your position?

In general (perhaps too general) European government has descended from a state where the Sovereign was the King, and the people only had what the King would give. This evolved into a more democratic mix, but the core assumption that the rights were given by government stayed. Legal positivism.

The government elected by the people.

Don't forget that last thing. Kinda important.

American government comes from a rejection of the sovereign, that the individual is sovereign and gives the state limited power to govern. The government has no power to go beyond its role. This is why a list is impossible. Government power is finite and identifiable. One can examine the laws and say what power the government holds. One cannot do the same with the rights of the people. Some are spelled out, some are not. A person holds a right to do anything the government has no power to affect.

But if that is your reason why a complete list of rights is impossible, then you are not talking about innate rights regardless of government.

[ponderingturtle]

against invading armies or the US military - by far the strongest military force ever built?


You should know that standing armies are the greatest threat to any free state.

[ponderingturtle]

Guns are effective against militaries. What in the world ever made you think they weren't?

Iraq. If the ability to run a successful insergency in this country is the basis for arms laws, then we need IED's and RPG's to be legalized.

[ponderingturtle]

Guns work. A nuke would be worthless in such a situation. Because that is how things work. Call me a optimist, but I'm pretty sure my government isn't going to nuke me... Why not?


So the hadgun is the number one threat in Iraq?

[Suddenly]

Do you need the 2nd amendment to be able to fight invading armies, then?

You need guns and other things that blow stuff up and kill people. The parameters of the second amendment are a whole different issue.

I didn't say the two of you were waging war against each other. I was talking about you, as a citizen, allowing your own government to wage war against you.

I am not allowing this.


What is your position? Not relevant to this discussion.

The government elected by the people.

Don't forget that last thing. Kinda important.
Not to the core point. A legal positivist would have to be fine with a government that did not recognize a democratic right, as he would not have a basis for saying a government violates what it alone can give.

Once you claim a person has an intrinsic right to a say in government you embrace natural law theory to some extent.

But if that is your reason why a complete list of rights is impossible, then you are not talking about innate rights regardless of government.

Yes I am. Your conclusion does not follow your premeses.

[Suddenly]

So the hadgun is the number one threat in Iraq?

I don't get how this follows. I'm pretty sure the US government is not going to nuke me if I were to take up arms against the government, given the effects such an act would have and the lack of precision. They would be more likely to shoot me, or try to kill me via use of other small scale conventional weaponry.

I would want like weapons to fight a guerrilla campaign.

[Lonewulf]

You're no longer talking about pistols, though. You're talking about rifles; hunting rifles are usable, but are you really suggesting that assault rifles and battle rifles should be distributed?

I'd also add that it's not just a choice between handguns and nukes. There are extremely precise weapons; from precise missiles that can be launched miles away and barely brush the curtains of your room's window, to helicopter gunships that could suppress an entire squad of infantry.

Then, add in semi-autonomous vehicles that are more than capable of moving in urban terrain and also standing up to 7.62mm rifle rounds. Take the Gladiator semi-autonomous vehicle: http://www.cmu.edu/PR/releases05/images/050210_marines_1.jpg

That thing can be compacted and be just as useful in an urban environment. If it can stand up to 7.62mm rifle rounds, then you would want something heavier; maybe a .50 BMG, or even anti-armor rounds such as RPGs.

Another image of the Gladiator, just because it's so cool: http://www.redstone.army.mil/ugvsjpo/images/Gladiator%20240G.jpg

[ponderingturtle]

I don't get how this follows. I'm pretty sure the US government is not going to nuke me if I were to take up arms against the government, given the effects such an act would have and the lack of precision. They would be more likely to shoot me, or try to kill me via use of other small scale conventional weaponry.

I would want like weapons to fight a guerrilla campaign.

And those are not the weapons this is about. This is not about legalizing IEDs and the like, this is about handguns.

Iraq is a good model of how to run a guerrilla campaign against the US. So the weapons that work well there are what needs to be legalized.

[Lonewulf]

AK-47s are always good. So are Rocket Propelled Grenades (to try to counter helicopters).

[ponderingturtle]

AK-47s are always good. So are Rocket Propelled Grenades (to try to counter helicopters).

RPG's are good, but IED's do seem to work the best.

[Suddenly]

And those are not the weapons this is about. This is not about legalizing IEDs and the like, this is about handguns.

Says who? The DC case is mainly about handguns, but the second amendment is about bearing arms, not just guns.

Iraq is a good model of how to run a guerrilla campaign against the US. So the weapons that work well there are what needs to be legalized.

If that is how one interprets the second amendment, then that would logically follow.

[ponderingturtle]

Says who? The DC case is mainly about handguns, but the second amendment is about bearing arms, not just guns.

If that is how one interprets the second amendment, then that would logically follow.

The thing is that few people who present that argument extend it to anything beyond firearms. If you believe that one of the primary reasons for a right to bear arms is to have an insurrection, explosives and such would be the obvious place to put your emphasis on.

That is why I really disagree with this argument so strongly, because the people presenting it clearly do not buy their argument because they are not interested in putting the most effective weapons in the hands of the people.

[CFLarsen]

You need guns and other things that blow stuff up and kill people. The parameters of the second amendment are a whole different issue.

Not in this discussion: Isn't the 2nd Amendment precisely there to prevent a tyrannical government?

I am not allowing this.

Wait a minute: Are you saying that there is no way the US Government can legally wage war against its own citizens?

Not relevant to this discussion.

I'd like to hear your take on it. You have taken all these classes, so it would be interesting to know what you got out of it.

Not to the core point. A legal positivist would have to be fine with a government that did not recognize a democratic right, as he would not have a basis for saying a government violates what it alone can give.

Once you claim a person has an intrinsic right to a say in government you embrace natural law theory to some extent.

It is exactly the core point: You don't have this The People vs. The Government anymore. The rights come from the people.

Yes I am. Your conclusion does not follow your premeses.

How can you be? Rights exist outside the human scope?

[Suddenly]

Not in this discussion: Isn't the 2nd Amendment precisely there to prevent a tyrannical government?
Sure.



Wait a minute: Are you saying that there is no way the US Government can legally wage war against its own citizens? If the U.S. Government acts in a state of war towards its own people those people have the intrinsic right to no longer respect the powers of that government. Whatever "legal/not legal" labels you want to apply feel free to do so.



I'd like to hear your take on it. You have taken all these classes, so it would be interesting to know what you got out of it. Been discussed over and over in other threads. I am not interested in explaining and defending my personal beliefs here



It is exactly the core point: You don't have this The People vs. The Government anymore. The rights come from the people.

Not if you are a legal positivist. Then that only follows in a system that allows the people a say in the government.

How can you be? Rights exist outside the human scope?

Rights are an intrinsic part of being human.

[volatile]

The thing is that few people who present that argument extend it to anything beyond firearms. If you believe that one of the primary reasons for a right to bear arms is to have an insurrection, explosives and such would be the obvious place to put your emphasis on.

That is why I really disagree with this argument so strongly, because the people presenting it clearly do not buy their argument because they are not interested in putting the most effective weapons in the hands of the people.

An excellent point. What's the NRA's stance on private possession of explosives?

More to the point, what's the NRA's stance on things like the Patriot Act, or the wiretapping? Has there been any organised / organisational statement from the gun lobby against the encroaching powers of the federal government? It seems that if your organisation's entire existence is predicated by a desire for empowered citizenry vs. tyrannical government, yours would be one of the most vocal opponents of some of the more draconian measures resulting from the WOT.

[Suddenly]

The thing is that few people who present that argument extend it to anything beyond firearms. If you believe that one of the primary reasons for a right to bear arms is to have an insurrection, explosives and such would be the obvious place to put your emphasis on.

That is why I really disagree with this argument so strongly, because the people presenting it clearly do not buy their argument because they are not interested in putting the most effective weapons in the hands of the people.

We have wandered off of the context of my original remarks. Claus was implying that small arms would be useless in an insurrection because the US government has nuclear weapons. This is absurd.

I could start an insurrection with a decent bow and some deer arrows, or for that matter a cue ball in a sock. Heck, I could probably cause all sorts of problems with a sack of flour.

Just because weapons aren't the "most effective" does not make them useless, and even if the Court interprets the second amendment along these lines there is still a legitimate state interest in regulating same based on safety. The present case is unusual as DC is a federal jurisdiction. The second has been to this point exclusively applied to federal law.

[WildCat]

Ruling expected today.

[bynmdsue]

Ruling expected today.

Ruling: Load Up On Guns,Bring Your Friends!

[MRegan]

To CFLarsen: It's fun to lose, and to pretend...

[Thunder]

i think SCOTUS made a fair and just decision. they recognized the clear right to own guns, as spelled out in the 2nd, but also recognized the neccessity and sanity of gun control laws.

[Quad4_72]

An article on the ruling...YAY FOR GUN RIGHTS
http://www.npr.org/templates/story/story.php?storyId=91911807

[Thunder]

bare in mind, if the 2nd ammendment did not allow for ANY regulation of firearm ownership, we would have to write a new ammendment to allow for gun laws. you cannot have a civil society AND no gun regulations.

[dudalb]

The decision did not say that cities and states could not regulate gun use, just that they could not out and out ban hand gun ownership, or pass laws that amount to that though not stated.
The problem is that the DC laws were obviously an attempt to ban all private ownership of hand guns by making ownership practically impossible.
Good for the SCOTUS. I am sad it broke down on party lines, though.
I don't know how much impact it will have politically though. The fact is the Democratic party as a whole, except for a few hardliners like Feinstein, abandoned strict Gun Control as a platform for the logical reason that it was a loser for them.

[Ziggurat]

you cannot have a civil society AND no gun regulations.

On what basis would you conclude that? Now, it's a different question as to whether or not we should, and whether or not it would be a bad thing, but cannot? The fact that nobodoes does doesn't mean nobody can.

[Thunder]

how can u have a safe and civil society if people are walking around with AK-47s and bazookas?

please...be realistic.

[Cicero]

how can u have a safe and civil society if people are walking around with AK-47s and bazookas?

please...be realistic.

But people can own fully automatic weapons, including bazookas, in 38 of the 50 states as long as they pay the $200 ATF tax, get a CLEO sign off, and have the federal background check. Flame throwers are not even regulated so anyone can own them.

Your idea of realistic, and what is actual reality, do not appear to be on speaking terms.

[Bob Blaylock]

how can u have a safe and civil society if people are walking around with AK-47s and bazookas?


What kind of society are we going to have a generation from now, with so many people who are so stupid that they cannot even spell a simple word, such as “you”?



http://forums.randi.org/attachment.php?attachmentid=10877&d=1210622095

[CFLarsen]

Sure.

There you go.

If the U.S. Government acts in a state of war towards its own people those people have the intrinsic right to no longer respect the powers of that government. Whatever "legal/not legal" labels you want to apply feel free to do so.

That doesn't answer the question: Is there no way the US Government can legally wage war against its own citizens?

Been discussed over and over in other threads. I am not interested in explaining and defending my personal beliefs here

Then, you are not debating, but arguing against a point, without offering anything yourself.

Not if you are a legal positivist. Then that only follows in a system that allows the people a say in the government.

Since when do only legal positivists determine where rights come from?

Rights are an intrinsic part of being human.

That doesn't answer the question: Do rights exist outside the human scope?

But people can own fully automatic weapons, including bazookas, in 38 of the 50 states as long as they pay the $200 ATF tax, get a CLEO sign off, and have the federal background check. Flame throwers are not even regulated so anyone can own them.

Your idea of realistic, and what is actual reality, do not appear to be on speaking terms.

Let's talk realism, then.

Why bazookas and not nukes? Where do you draw the line, and why?

[cloudshipsrule]

Nukes should be fine as long as people use common sense. (ALARA, PPE, ETC..) :)

Assuming people aren't dumb enough to 'light them off' on Sundays when a lot of people are trying to rest.

[Beerina]

bare in mind, if the 2nd ammendment did not allow for ANY regulation of firearm ownership, we would have to write a new ammendment to allow for gun laws. you cannot have a civil society AND no gun regulations.

Evidence?


Seriously.

[Beerina]

how can u have a safe and civil society if people are walking around with AK-47s and bazookas?

please...be realistic.

Oh, you mean AK-47s and bazookas. Well, what does "people shouldn't have bazookas" have to do with handguns and normal rifles and shotguns?

[Darth Rotor]

how can u have a safe and civil society if people are walking around with AK-47s and bazookas?

please...be realistic.
You raise a current events point: in Iraq, people are walking around with RPGs and AK-47s whilst fighting against a government and a foreign occupation they object to. Given that the country has been in a state of civil war for about five years, I think they demonstrate quite effectively how important it is for citizens to be armed against the tyranny of a government by the majority where the Constitutional protections we take for granted are not available.

Trouble is, you are trying to apply this to America.

Where is your evidence that people are walking around with RPGs/bazookas and AK-47s in the country being discussed.

Newsflash: in our county, over 70,000 legal gun owners didn't kill anyone yesterday.

DR

[Cicero]

Let's talk realism, then.

Why bazookas and not nukes? Where do you draw the line, and why?

Well, the regulatory agency that deals with private citizen ownership of weapons is the ATF, and their perview does not cover nuclear weapons. In other words, this is not an issue as the line is, and has always been, already well enforced since 1934.

People who have trouble with the 2nd Amendment, even after the latest ruling, always phrase the question in "Why do you NEED such weapons?" And there is a space on NFA ATF Form's 3/4 where the question is asked reason for ownership. Just about everyone cites either investment, collectible, or historical interest, but they might just as well write "because I want it."

[CFLarsen]

Well, the regulatory agency that deals with private citizen ownership of weapons is the ATF, and their perview does not cover nuclear weapons. In other words, this is not an issue as the line is, and has always been, already well enforced since 1934.

Why doesn't it cover nukes? Nukes didn't exist in 1934.

[Cicero]

Why doesn't it cover nukes? Nukes didn't exist in 1934.

But there have been subsequent federal firearm regulations since 1934, such as the 1968 Act, the 1987 Act, and the 1992 Act. Since nukes have been around since 1945, it would appear that no American is asking for, or making application there of, to own nukes. Ask the Nuclear Regulatory Agency if they have been pestered by perspective nuke owners looking to own them.

You seem to be fixated on a weapon that nobody is asking to be legal to own.

[Bikewer]

I've had discussions on other forums along these lines. There are those (a rather small minority so far as I can tell) who maintain that civilians should be able to possess any weapons that that the military or police have.
That such an armed citizenry stands as a "bulwark against tyranny".

With only a few happy exceptions, the practice of rising up against tyranny has led to the imposition of a new tyranny run by the victors. In some cases, (France...) a very messy post-revolution took many years to sort out and the loss of life was appalling.

I'm inclined to see this viewpoint as a sort of fantasy in contemporary society. Identification with the glorified "Minutemen" of old.
"I've got three AKs and a box of National Guard grenades buried in the backyard. I'm ready!"

Even the stodgy NRA is mostly on board with the types of restrictions placed on firearms in most states. Qualifications to buy, the ability to carry only after satisfying qualification and training criteria, prohibition to certain classes of people.... That sort of thing.

Of an equal level of fantasy are the "hoplophobes" that believe citizens should have no access to weapons whatever. That society would be more civil and safer if no one had any weapons.
Unfortunately, this viewpoint does not seem to square up with reality. In America, we not only have many millions of weapons, but a culture which strongly identifies with them as symbols of freedom, self-reliance, and so forth.
Unless one imposes some sort of magic which makes all these weapons evaporate, it's unlikely to happen. The imposition of draconian regulations seems to be, as we see in the recent SCOTUS decision, highly unpopular.
It also ignores the well-observed fact that criminals do not tend to obey laws....

In DC, for instance, the ban on ownership was apparently having no effect whatever on crime, which to the best of my knowledge included a per capita murder rate that ranked among the highest in the nation.
The Mayor of DC, whining, (IMO...) on NPR this morning, acknowledged the widespread smuggling and illegal ownership of guns and their contribution to violence, yet could not seem to grasp that the legal ownership by citizens could conceivably have a positive effect on this; remove the ban and the contraband substance becomes less likely to be smuggled.
The criminal classes would be unaffected by all this at any rate. They have guns now, and apparently use them freely.

Just to veer slightly from the theoretical, in that NPR Morning Edition segment, they interviewed several large-city mayors and police chiefs. All thought the SCOTUS decision was bad; that "putting more guns into society will cause more violence", that guns in the hands of honest people will be "turned against them by criminals", and so on.
The concerned officials were from cities (Chicago, LA...) where violence was already at high levels, again mostly as a result of illegally obtained weapons in the hands of criminals and gangs.

[CFLarsen]

But there have been subsequent federal firearm regulations since 1934, such as the 1968 Act, the 1987 Act, and the 1992 Act. Since nukes have been around since 1945, it would appear that no American is asking for, or making application there of, to own nukes. Ask the Nuclear Regulatory Agency if they have been pestered by perspective nuke owners looking to own them.

You seem to be fixated on a weapon that nobody is asking to be legal to own.

Whoa, whoa. Just a minute.

A right to something doesn't exist until someone wants it?

That's the exact opposite of what we have heard so far: That the right to own a firearm in an inherent right.

[Cicero]

Whoa, whoa. Just a minute.

A right to something doesn't exist until someone wants it?

That's the exact opposite of what we have heard so far: That the right to own a firearm in an inherent right.

Who said anything about the right to nukes except you? You are confusing destructive devices with firearms. The BATF/Department of Justice already has this law on the books which would include nukes.

Correct. The right to own a firearm in the United States is a Constitutional guarantee, and the Supreme Court concurs. But this ruling didn't change the following restrictions:


2007 Dangerous Weapons Control Law

12301. (a) The term "destructive device," as used in this chapter, shall include any of the following weapons:
(1) Any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns.
(2) Any bomb, grenade, explosive missile, or similar device or any launching device therefor. (3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore) conforming to the definition of a "destructive device" found in subsection (b) of Section 479.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition (single projectile or shot), antique rifle, or an antique cannon. For purposes of this section, the term "antique cannon" means any cannon manufactured before January 1, 1899, which has been rendered incapable of firing or for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. The term "antique rifle" means a firearm conforming to the definition of an "antique firearm" in Section 479.11 of Title 27 of the Code of Federal Regulations.
(4) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for that device, except those devices as are designed primarily for emergency or distress signaling purposes.
(5) Any breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.
(6) Any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction.
(b) The term "explosive," as used in this chapter, shall mean any explosive defined in Section 12000 of the Health and Safety Code.

http://ag.ca.gov/firearms/dwcl/12301.php

[CFLarsen]

Who said anything about the right to nukes except you? You are confusing destructive devices with firearms. The BATF/Department of Justice already has this law on the books which would include nukes.

A firearm isn't a destructive device? O....K. What is it, then? A non-destructive device?

Correct. The right to own a firearm in the United States is a Constitutional guarantee, and the Supreme Court concurs. But this ruling didn't change the following restrictions:


2007 Dangerous Weapons Control Law

12301. (a) The term "destructive device," as used in this chapter, shall include any of the following weapons:
(1) Any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns.
(2) Any bomb, grenade, explosive missile, or similar device or any launching device therefor. (3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore) conforming to the definition of a "destructive device" found in subsection (b) of Section 479.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition (single projectile or shot), antique rifle, or an antique cannon. For purposes of this section, the term "antique cannon" means any cannon manufactured before January 1, 1899, which has been rendered incapable of firing or for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. The term "antique rifle" means a firearm conforming to the definition of an "antique firearm" in Section 479.11 of Title 27 of the Code of Federal Regulations.
(4) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for that device, except those devices as are designed primarily for emergency or distress signaling purposes.
(5) Any breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.
(6) Any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction.
(b) The term "explosive," as used in this chapter, shall mean any explosive defined in Section 12000 of the Health and Safety Code.

http://ag.ca.gov/firearms/dwcl/12301.php

Rather arbitrary, wouldn't you say? And did you notice that these are post-2nd Amendment devices (be they "destructive" or not)?

[Cicero]

A firearm isn't a destructive device? O....K. What is it, then? A non-destructive device?



Rather arbitrary, wouldn't you say? And did you notice that these are post-2nd Amendment devices (be they "destructive" or not)?

I see. So any firearm invented after 1791 are out of the perview of the 2nd Amendment?

Is this more of a stretch than the Supreme Court finding the right to privacy in the 14th Amendment (where the word privacy is not mentioned) to hang their decision in Roe v Wade?

Since you can fire firearms safely at indoor ranges, even in a big city, but you cannot say the same about setting of explosives, yes, firearms are not considered destructive devices. Wow! You must really have a grudge against firearms. What is the genesis of this dislike? If you do not wish to possess a firearm, you do not have to. How does someone else legally owning a firearm infringe on your freedoms?

[casebro]

Larsen, that is the state of California. All subject to change pursuant to the above SC decision.

[CFLarsen]

I see. So any firearm invented after 1791 are out of the perview of the 2nd Amendment?

Where does it say that the 2nd Amendment covers all future weapons?

Is this more of a stretch than the Supreme Court finding the right to privacy in the 14th Amendment (where the word privacy is not mentioned) to hang their decision in Roe v Wade?

Now you are arguing that two wrongs make a right.

Since you can fire firearms safely at indoor ranges, even in a big city, but you cannot say the same about setting of explosives, yes, firearms are not considered destructive devices.

Mythbusters regularly set off explosives indoors. On TV, no less.

Wow! You must really have a grudge against firearms. What is the genesis of this dislike?

Vilification of opponent.

If you do not wish to possess a firearm, you do not have to. How does someone else legally owning a firearm infringe on your freedoms?

Does me owning a nuke infringe on any of your freedoms?

[Cicero]

Where does it say that the 2nd Amendment covers all future weapons?



Now you are arguing that two wrongs make a right.



Mythbusters regularly set off explosives indoors. On TV, no less.



Vilification of opponent.



Does me owning a nuke infringe on any of your freedoms?

Where does the 1st Amendment guarantee freedom of religion with regards to new religions since 1791 like Mormonism?

Mythbusters also has firefighters and the OK of the local authorities to do what they do and always warn viewers to never try this at home.

Why would revealing why you are an opponent of the 2nd Amendment be considered "vilification?"

Well, Iran thinks Israel owning nukes infringes on their freedoms. While I give Israel the benefit of the doubt, with regards to you, and any other private citizen of the U.S. I do not extend the same courtesy.

But when you actually get a nuke, you let me know and then I will tell you how it infringes on my freedoms. you see, I like to deal with reality, not the theoretical.