Court rules machine guns not protected by 2nd Amendment

[De Selby]

De Selby, don't you see a problem with ignoring portions of our fundamental law?

I didn't say you had to participate, and neither does the Constitution. It merely states that the right to own and carry the weaponry shall not be infringed, as that is conducive to a well-regulated militia. It doesn't dictate that one has to participate in an organized militia, in order to avail oneself of the right.

It doesn't merely state that, or you wouldn't have had to reverse the sentence to make your point.

Heller's analysis of the amendment and its history is pretty good.  I don't think there's a credible argument that any weapons useful to the military are protected by the amendment. 

The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

[Pb]

De Selby, you are just flat out wrong.

Tench Coxe was the founding father who wrote the most about the second Ammendment.  He stated clearly that right to own military weapons was protected:

"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.... [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." (Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.)


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Now what was the primary intended purpose of the Second Amendment?  To shoot burglars with a pistol?  Nope, for engaging in military combat:

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." (Tench Coxe in ‘Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym ‘A Pennsylvanian' in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)

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Now it is true that owning guns for hunting and self-defense are protected by the second amendment as well.  The right is not limited to militia service. 

De Selby, if you wish to understand the second ammendment, please read this journal article:

http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1421&context=wmborj

[Perd Hapley]

It doesn't merely state that, or you wouldn't have had to reverse the sentence to make your point.

Um, I don't have to reverse the sentence. That's done for clarity, for those that misunderstand the amendment, as written. If you could explain, specifically, how I'm misintrepeting the text, please do. There's no requirement, that I can see, that everyone who exercises the right to own/carry weapons has to qualify by drilling with their local militia. Where do you see that in the text, or what contemporary sources imply that requirement?

[De Selby]

Um, I don't have to reverse the sentence. That's done for clarity, for those that misunderstand the amendment, as written. If you could explain, specifically, how I'm misintrepeting the text, please do. There's no requirement, that I can see, that everyone who exercises the right to own/carry weapons has to qualify by drilling with their local militia. Where do you see that in the text, or what contemporary sources imply that requirement?

They are exhaustively listed in Heller, which I quoted above.  Well worth a read.

BTR, you should have a read of Heller as well.  Id say the fact that Justive Scalia saw it this way is at least a Prima Facie reason to believe it's correct.

[Perd Hapley]

They are exhaustively listed in Heller, which I quoted above.  Well worth a read.

Heller provides multiple attestations that the militia clause requires one to be in an organized militia in order to have a second amendment right to arms? Can you point me to any? Are these in the court's decision, or in dissenting opinions?

[De Selby]

Heller provides multiple attestations that the militia clause requires one to be in an organized militia in order to have a second amendment right to arms? Can you point me to any? Are these in the court's decision, or in dissenting opinions?

I quoted one already.  Heller provides multiple sources for the proposition that equality of arms with a military force is not protected, nor military weapons and training.  It's an individual right to self defence.

[Perd Hapley]

Again, where did you quote such a, uh, quotation?

You're not addressing my question, though. You claimed that the militia clause was essentially meaningless, and that affording it any significance at all would mean that only those in the militia are allowed to have weapons. What I'm asking you for is some evidence, some reason that would support such a strained reading of the militia clause. Why would the purpose of the amendment be limited to the militia, when the operative clause reads "the people," and not "militia"?

[De Selby]

Again, where did you quote such a, uh, quotation?

You're not addressing my question, though. You claimed that the militia clause was essentially meaningless, and that affording it any significance at all would mean that only those in the militia are allowed to have weapons. What I'm asking you for is some evidence, some reason that would support such a strained reading of the militia clause. Why would the purpose of the amendment be limited to the militia, when the operative clause reads "the people," and not "militia"?

I think I see the source of your confusion.

You want the militia clause to be operative, in that it changes the scope of the right.  Stevens dissent would agree - but not in the way you like.

It seems to me like what you're saying is that the militia clause is operative only to the extent it protects an individual right to own weapons suitable for military use.  That's a tortured read that would amount to a citizen right to have equality of arms with Governments on a private basis - a right never recognised as 'natural' or in any other capacity at English common law.  There is some evidence, however, that states saw the right to bear arms as conditioned on serving (though Scalia dismisses it as not part of the historical right.)

The status of the militia, and why this thinking that military weapons are protected per se, is covered in detail.  

Quotes:

“Ordinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

And

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

[Perd Hapley]

You already quoted those at me, and they don't say what you want them to say. In particular, you should examine the last line of the second quotation.

You want the militia clause to be operative, in that it changes the scope of the right.

Want doesn't enter into it. The militia clause is not operative. It does not change the scope of the right. But it does describe what it has always been (even if not fully recognized). "Operative*" doesn't signify "meaningless," or "nevermind this bit; we was havin' a laugh."

*Edit: Here, I meant to say "prefatory," rather than "operative." I'm saying that it is not only the operative clauses that matter in the text of a law.

It seems to me like what you're saying is that the militia clause is operative only to the extent it protects an individual right to own weapons suitable for military use.  That's a tortured read that would amount to a citizen right to have equality of arms with Governments on a private basis

Again, that's not "operative;" only descriptive. It doesn't say, "you can only have this much," but it does give us an idea of what kind of weapons are most certainly protected. What's tortured is the reading in which the right to keep and bear arms is about Fudd weapons, but doesn't protect the sort of weapons that one would expect a militia to use. This, despite the fact that neither self-defense, nor hunting, nor bowling-pin shoots are mentioned; the militia is.

Just as tortured is the notion that a minuteman would be expected to have the full panoply of a nation's professional army. Such reasoning would strip infantry companies of their grenades, since they don't also have nukes. Where is it written that militia, to be any use, must report on the village green with nuclear subs and their own wing of bombers? That's not our national experience. They brought more-or-less similar weaponry to the infantry of their day. They didn't have parity. They were merely small military units; not complete armies. Now, the militia may have contributed a great deal, but they didn't win the war. Paramilitary groups that have overcome superior military force have not typically done it by having equivalent weapons. So the idea that a right to something as basic, as general-issue, and as old hat (not to mention, used by police all over the country) as semi-automatic or automatic weaponry would have anything to do with "equality of arms" is a red herring.

[De Selby]

Ok, so what rule are you proposing?

I think you are confusing yourself in an attempt to shift between what a militia is, to personal firearms rights, to rights based on militia needs.

What weaponry is protected and why, and what rule did you use to reach that conclusion?

[Perd Hapley]

You're funny. I'm "proposing" that we follow the plain meaning of the amendment.

[De Selby]

You're funny. I'm "proposing" that we follow the plain meaning of the amendment.

No you're not.  You've now named a category of weapons you think is protected (fully automatic) without explaining why.  Assuming that it is obvious because militias use small arms and not nukes (where that came from I don't know) is a bit silly.

Again, this is covered explicitly in the judgment.  I'd suggest reading it.  It's pretty good analysis.

[Perd Hapley]

No you're not.  You've now named a category of weapons you think is protected (fully automatic) without explaining why.  Assuming that it is obvious because militias use small arms and not nukes (where that came from I don't know) is a bit silly.

As opposed to declaring anything fully automatic to be dangerous and unusual? As opposed to claiming they're not in common use? And I'm the one you're lecturing?

Also, gotta love the notion that we have to "explain" why common small arms, general-issue the world over, for decades upon decades, could somehow be a protected right. If only we had an amendment that specifically guarantees a right to keep and bear arms, and even sets para-military organizations as the backdrop for that right.

As for nukes, I'm not the one saying the militia either has "an equality of arms" with the government, or is relegated to hunting rifles.  Explain the "why" of that one.

[De Selby]

The problem is that through confusion of your terms I don't know what you're saying anymore.  You refuse to elaborate when I ask you, using conclusively terms that don't elaborate the rule you think the court should adopt or even say anything that might contradict or affirm the judgment at the top of this thread.

You're asserting that full auto is common.  Yet the history of the right is clear that personally owned weapons, commonly personally owned, are the source of the right.  Not common police or military usage.  That makes a great deal of sense given the history of the right.

What do you see that's wrong there?  do you agree with the Heller rule, or are you operating on something else?

[Fly320s]

I'm not sure what fistful is saying, but I think I see a Catch-22 in the court's logic.  The court says only common personally owned weapons are protected, but SBRs and full-auto would probably be common if it wasn't for NFA '34.

Also, I don't understand why the court even references police and military firearms since neither of those organizations has the same rights or restrictions as "the people."  The police and military can buy whatever they want and no court will tell them otherwise.

[TommyGunn]

 

OK..... I am not a lawyer, nor have I played one on TV, but after the last series of posts, I think I will leave this here:

    

DOES ANYONE HERE (ESPECIALLY LAWYERS) KNOW WHAT THE PHRASE "SHALL NOT BE INFRINGED" MEANS?[/size]

     

(specific emphasis on the word "infringed.")

[MechAg94]

I'm not sure what fistful is saying, but I think I see a Catch-22 in the court's logic.  The court says only common personally owned weapons are protected, but SBRs and full-auto would probably be common if it wasn't for NFA '34.

Also, I don't understand why the court even references police and military firearms since neither of those organizations has the same rights or restrictions as "the people."  The police and military can buy whatever they want and no court will tell them otherwise.

The common use of full auto among police should tell anyone that they would likely be common if not for NFA laws.  I think suppressors would be common also.

I am actually a little suprised that police and military don't use some sort of sound suppression all the time even if not a full suppressor. 

[Scout26]

Didn't Miller state that since the sawed-off shotgun WAS NOT in use by the military that it wasn't protected under the bill of rights?

Which would lead one to think that court ruled that Military type firearms (to include machine guns/fullauto) ARE protect by the 2A for civilians to own.


IANAL,NDISAAHIELN.

[De Selby]

Didn't Miller state that since the sawed-off shotgun WAS NOT in use by the military that it wasn't protected under the bill of rights?

Which would lead one to think that court ruled that Military type firearms (to include machine guns/fullauto) ARE protect by the 2A for civilians to own.


IANAL,NDISAAHIELN.

This is an important point covered in Heller.  The answer is that Miller wasn't an exhaustive consideration of the subject, and all its finding on the shotgun amounted to was a finding that such guns were not commonly used for lawful purposes.

Heller doesn't make clear where the line is on what restrictions might be imposed for uncommon or unusually dangerous weapons.  That's why running ass hat claims in lower courts is dangerous - it creates precedents that will be used to defend restrictions on the future. 

The level of scrutiny that applies to a regulation on weapons isn't clear yet either.  Just what the .gov needs to prove, if anything, to justify restrictions is up for grabs.

[Perd Hapley]

This is an important point covered in Heller.  The answer is that Miller wasn't an exhaustive consideration of the subject, and all its finding on the shotgun amounted to was a finding that such guns were not commonly used for lawful purposes.

Not quite. Miller's salient point, as Scalia makes clear in Heller, is that the short-barreled shotgun was not covered by the 2A, due to its lack of military value.


BTW, I'm preparing an answer for your above questions. Watch this space.

[De Selby]

Not quite. Miller's salient point, as Scalia makes clear in Heller, is that the short-barreled shotgun was not covered by the 2A, due to its lack of military value.


BTW, I'm preparing an answer for your above questions. Watch this space.

You may not realise it but that bit I quoted above was a conclusion about Miller.  I've bolded now.

[Perd Hapley]

You may not realise it but that bit I quoted above was a conclusion about Miller.  I've bolded now.

Oh, you're right. I don't see any such reasoning in Miller. Do you?

Scalia reads Miller correctly, earlier in the decision.

It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

    This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise.

But then he claims that Miller says something quite different. But it gets worse, as I'll point out later.