Second Amendment question

[jimlintott]

I was watching a tv show the other day that dealt with vicious dog attacks. Two rottweillers had killed a teenage boy and these dogs had in fact been trained to attack.

Now vicious attack dogs are a weapon that easily predates firearms. What if for some reason I can't operate firearms? Say, I literally have no arms. Could keeping vicious attack trained dogs be protected under the second amendment?

I've always been curious about this. Is there a line at which the right to bear arms ends?

[Monketey Ghost]

Quote:

Originally posted by jimlintott
I've always been curious about this. Is there a line at which the right to bear arms ends?

Yah, there is: "A well-regulated militia..." The way I read it, the line is drawn there.

(Ducks)

[aerocontrols]

Quote:

Originally posted by jimlintott
I was watching a tv show the other day that dealt with vicious dog attacks. Two rottweillers had killed a teenage boy and these dogs had in fact been trained to attack.

Now vicious attack dogs are a weapon that easily predates firearms. What if for some reason I can't operate firearms? Say, I literally have no arms. Could keeping vicious attack trained dogs be protected under the second amendment?

I've always been curious about this. Is there a line at which the right to bear arms ends?

I believe the Supreme Court in Miller held that Miller's sawed-off shotgun wasn't protected by the Second Amendment because it could not be argued that such a weapon is a militia weapon. One might make the same argument about vicious dogs, I suppose.

Like guns, however, if you abuse your dog-owning rights, you might get them taken away.

MattJ

[jimlintott]

Quote:

I believe the Supreme Court in Miller held that Miller's sawed-off shotgun wasn't protected by the Second Amendment because it could not be argued that such a weapon is a militia weapon.

If that's the litmus test why are assault weapons banned? In fact most legal firearms aren't really military weapons either.

[Tmy]

I dont think dogs could be considered "arms". Almost anything can be used as a weapon, the 2nd Amendment isnt meant to allow every weapon. Otherwise you can claim a right to have bioweapons and such.

[aerocontrols]

Quote:

Originally posted by jimlintott


If that's the litmus test why are assault weapons banned? In fact most legal firearms aren't really military weapons either.

I believe the assault weapons ban is not legal under Miller.

Has a handgun ban ever been struck down on 2nd amendment grounds? If handgun ownership is not protected by the 2nd amendment, that wouldn't make handgun ownership illegal. Nor would it do so to sawed-off shotguns. It would only allow the government to ban those weapons if it chooses.

MattJ

[jimlintott]

Quote:

I dont think dogs could be considered "arms". Almost anything can be used as a weapon, the 2nd Amendment isnt meant to allow every weapon. Otherwise you can claim a right to have bioweapons and such.

Why doesn't the right to bear arms include any arms? I'm armed if I'm carrying a samurai sword. I can surely be considered armed if I have an attack dog. I didn't know the amendment was that clear on what or what isn't considered arms. I find it somewhat odd that people will rally around eliminating vicious dogs (often based on nothing more than the breed) but to threaten firearms brings cries of violating constitutional rights. What's the difference? Armed is armed.

I'm not saying what is right or wrong here. It just seems to me that there is a huge amount of grey area until it's a firearm. Then there seems to be no doubt.

[aerocontrols]

Quote:

Originally posted by jimlintott


Why doesn't the right to bear arms include any arms? I'm armed if I'm carrying a samurai sword. I can surely be considered armed if I have an attack dog. I didn't know the amendment was that clear on what or what isn't considered arms.

It seems to me that the article I read about Miller said that one of the judges in Miller had specifically mentioned hatchets, knives, and body armor, because they were items that a militia man might be expected to carry.

I looked for the article, but couldn't find it.

MattJ

[Wolverine]

Quote:

Originally posted by jimlintott
Is there a line at which the right to bear arms ends?

IMO, yes; the question is where. It will likely be an area of heated debate for the remainder of our lives.

I've found the following article quite interesting (even though I disagree with some of the author's conclusions).
It may not answer your question, however, it may yield some useful historical context.

The Right to Keep and Bear . . . What?

Vicious, trained attack dogs don't satisfy the criteria to be labeled as arms, even if you have no limbs.

[Ed]

Quote:

Originally posted by jimlintott


If that's the litmus test why are assault weapons banned? In fact most legal firearms aren't really military weapons either.

For accuracy: They did not ban assult weapons. They banned some semi-automaic firearms that did not appeal to them.

[Wolverine]

Quote:

Originally posted by aerocontrols
Has a handgun ban ever been struck down on 2nd amendment grounds?

I don't recall. There's a case in the works right now, though.

[jimlintott]

Thanks Matt. You are making sense. Just because a certain weapon is legal doesn't mean it would have to fit into the definition allowed under the second ammendment. I think we both know that if the U.S. government tried to ban hunting rifles and shotguns that the second amendment would be trotted out in defense even though some of these weapons might not be what a militia man might carry.

Wolverine - great link. I read some but not all. They seem to say pretty much what Matt is saying that it is military weapons that are considered arms.

Now back to being silly. It's hard to imagine a militia without dogs. Dogs have a long military history (not as weapons exclusively) so they might actually pass this militia man test. As I said before dogs were in military service long before guns were invented

Check this site at the bottom (right) of the page the military appearing man certainly seems to be brandishing a weapon to me.

Ed - semantics are funny, eh.

[aerocontrols]

Is it harder to imagine a militia without dogs than it is without artillery?

[jimlintott]

Quote:

Is it harder to imagine a militia without dogs than it is without artillery?

Actually, yes. The term militia often conjures up visions of a hastily assembled group of men who now call themselves an army. Often living in a place like Montana, Texas or Alberta. I really hope that these militias don't have any artillery but I would be very surpised if they didn't have some vicious dogs.

[aerocontrols]

Quote:

Originally posted by jimlintott


Actually, yes. The term militia often conjures up visions of a hastily assembled group of men who now call themselves an army. Often living in a place like Montana, Texas or Alberta. I really hope that these militias don't have any artillery but I would be very surpised if they didn't have some vicious dogs.

Are those the guys you were talking about? Oh...

That's not the test the Supreme Court was using. They were saying that the 2nd amendment guaranteed the right of the people to keep and bear 'arms' and they then defined 'arms' as those items that a militiaman might be expected to bring with him to be 'armed' when called up. Not every man would be expected to bring a dog or an artillery piece, so those things wouldn't be considered.

I believe, anyway, that this is where Miller drew the line.

MattJ

[shanek]

Quote:

Also sprach Aerocontrols
I believe the Supreme Court in Miller held that Miller's sawed-off shotgun wasn't protected by the Second Amendment because it could not be argued that such a weapon is a militia weapon.

Quote:

Originally posted by jimlintott


If that's the litmus test why are assault weapons banned? In fact most legal firearms aren't really military weapons either.

Nice little scam the gun control advocates have...If it's a military grade weapon, it's too dangerous for anyone but the military and should be banned. If it isn't, it's not needed by a "militia" and the 2nd Amendment doesn't apply.

By the way, you do have the right to have attack dogs just as you have the right to keep and bear arms, with or without the Second Amendment. The Constitution makes it plain that rights to not have to be enumerated to be held by the people. The Constitution is a limitation on government, not the people. You have the right as long as nothing in the Constitution gives the government the power to take it from you.

[aerocontrols]

Quote:

Originally posted by shanek
By the way, you do have the right to have attack dogs just as you have the right to keep and bear arms, with or without the Second Amendment. The Constitution makes it plain that rights to not have to be enumerated to be held by the people. The Constitution is a limitation on government, not the people. You have the right as long as nothing in the Constitution gives the government the power to take it from you.

Are we talking about state or federal law here?

[shanek]

Quote:

Originally posted by aerocontrols
Are we talking about state or federal law here?

Both, although the Constitution imposes different standards for each. For the states, all they need in order to exercise a power is for the Constitution not to restrict it. For the Federal government, however, if the Constitution doesn't specifically say they can do it, they can't do it. 10th Amendment.

[jimlintott]

Quote:

That's not the test the Supreme Court was using. They were saying that the 2nd amendment guaranteed the right of the people to keep and bear 'arms' and they then defined 'arms' as those items that a militiaman might be expected to bring with him to be 'armed' when called up. Not every man would be expected to bring a dog or an artillery piece, so those things wouldn't be considered.

Well that makes perfect sense. Especially two hundred years ago. Today Uncle Sam can kit out everyone who shows up without even straining.

Doesn't the U.S. military satisfy all the second amendment needs of the people? There really isn't a practical reason for the civilian popluation to be armed in case French frigates show up on the coast.

How is it used to protect civilian arms ownership? Is each U.S. citizen a member of some collective militia by default? (I may have just answered my own question.) How does it protect non-military weapons? Is this the paradox Shanek brought up?

(My dogs and artillery seem safe. )

[aerocontrols]

Quote:

Originally posted by shanek


Both, although the Constitution imposes different standards for each. For the states, all they need in order to exercise a power is for the Constitution not to restrict it. For the Federal government, however, if the Constitution doesn't specifically say they can do it, they can't do it. 10th Amendment.

How are you talking about both? It seems to me that the Constitution forbids the federal goverment from prohibiting dogs, but not the state goverments. A state law prohibiting dogs would not, then, infringe on some 'right to own dogs', unless that right is in the state Constitution.

it seems to me that he doesn't "have the right to have attack dogs just as [he has] the right to keep and bear arms"

MattJ

[aerocontrols]

Quote:

Originally posted by jimlintott


Well that makes perfect sense. Especially two hundred years ago. Today Uncle Sam can kit out everyone who shows up without even straining.

Doesn't the U.S. military satisfy all the second amendment needs of the people? There really isn't a practical reason for the civilian popluation to be armed in case French frigates show up on the coast.

Quote:

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 until such time as the regular armed forces of the United States can handle things?

Are you proposing another amendment? I would wish you luck, but it wouldn't be sincere.

MattJ

[xouper]

Quote:

jimlintott: Doesn't the U.S. military satisfy all the second amendment needs of the people? There really isn't a practical reason for the civilian popluation to be armed in case French frigates show up on the coast. How is it used to protect civilian arms ownership? Is each U.S. citizen a member of some collective militia by default?

The essential point of the Second Amendment is that "the right of the people to keep and bear arms shall not be infringed." The subordinate clause is there as just one of many examples why this should be.

The clause, "A well-regulated militia being necessary to the security of a free state," does not mean that only militia can bear arms. Also, the words "well-regulated" means "well trained and organized", not well governed by laws.

Many state constitutions do not have the militia clause and simply re-affirm the right of the people to keep and bear arms. For example, Article I, Section 6 of the Michigan Constitution reads: "Every person has a right to keep and bear arms for the defense of himself and the state."

[WildCat]

Back then the term militia meant any able-bodied male adult citizen. It seems to me that the Founding Fathers had two types of militia in mind.

From Article I, Section 8:
The Congress shall have Power:
Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Clause 13: To provide and maintain a Navy;
Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Later, in Article II, Section 2, Clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
The above clearly define a militia organized for the defense of the nation.

Now, on to the famous 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.

Now, the militia composed for national defense was clearly defined in the original constitution. The first 10 amendments (the "Bill of Rights") were ratified soon after to define the rights of individuals against the power of the government. It seems clear to me that the militia referred to in the 2nd Amendment was a People's militia, there to protect against abuses by the government, as is every other amendment in the Bill of Rights. This is the only logical conclusion, IMHO, given it's context in the Constitution.

If you disagree, and think this amendment refers to the army/national guard, then what is it doing in the Bill of Rights? Especially when national defense had been thouroughly covered in the original Constitution.

[jimlintott]

Quote:

Are you proposing another amendment? I would wish you luck, but it wouldn't be sincere.

I'm Canadian. I'm sure my chances of amending the U.S. constitution are worse than not at all.

Thanks for all the great info. I've learned a bunch.

[shanek]

Quote:

Originally posted by aerocontrols
How are you talking about both? It seems to me that the Constitution forbids the federal goverment from prohibiting dogs, but not the state goverments.

Well, just like I said, there's nothing in the Constitution specifically prohibiting the states from putting restrictions on dog ownerships.

Now, the individual states have Constitutions, too, which may restrict what they can do, but that's a separate issue.

Quote:

A state law prohibiting dogs would not, then, infringe on some 'right to own dogs', unless that right is in the state Constitution.

Yes, or unless the US Constitution is amended.

Quote:

it seems to me that he doesn't "have the right to have attack dogs just as [he has] the right to keep and bear arms"

He has both from a Federal point of view. As for his state, that would depend on whatever his state Constitution says.