Senator Feinstein's gun bill in light of DC v Heller - Constitutional questions (Page 2)

It's funny you say that... I think things are a little different and there is strong support for something to get done. But I can't help think that Obama has been pretty ineffectual on most things and he has a full plate with fiscal problems. I guess we will see.

But there are plenty others that want to do something. we shall see I guess. This bill is ridiculous in scope, but I suspect "something" to pass.

Yeah Feinstein's bill is DOA. But I wouldn't be surprised to see a 10 round mag bill go thru. Maybe even a no scary looking guns bill, but even that was so ridiculous last time that I don't know if it would pass again. 

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- Thomas Jefferson

There is no confusion regarding what the founders of our country had in mind.  There was none then, there is none now. 

It's kind of a silly argument in the end.....I don't know a single owner who would turn his guns into the government.  It's mostly "feel good" legislation to keep the uninformed/scared believing that the govt. is looking out for their interests. 

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- Thomas Jefferson

There is no confusion regarding what the founders of our country had in mind.  There was none then, there is none now. 

It's kind of a silly argument in the end.....I don't know a single owner who would turn his guns into the government.  It's mostly "feel good" legislation to keep the uninformed/scared believing that the govt. is looking out for their interests. 

Wrong.  There are many theories and sub-texts concerning the intent the "founders" had in mind with the second amendment.  Here is one: "The Hidden History of the Second Amendment", by Professor Carl T. Bogus.

And there is no evidence that Jefferson ever said or wrote your second quote.   http://www.monticello.org/site/jefferson/strongest-reason-people-to-retain-right-to-keep-and-bear-arms-quotation

Is... "The Right of the People to Keep and Bear Arms Shall Not be Infringed" ... really that difficult to understand?  The SCOTUS seemed to feel it was pretty simple.

Heritage.org has a decent essay that covers a lot of the history of the 2nd Amendment.  This essay is a little dated because I believe it is before the Heller decision where the SCOTUS determines the 2nd Amendment to be an individual right, but it's really good for the history.

Disclaimer, Heritage is a conservative site but the essay seems very balanced.

http://www.heritage.org/constitution/#!/amendments/2/essays/142/to-keep-and-bear-arms

I can't speak for Tri... but I interpret the clause the same way the Heller ruling interpreted it... as separate and not connected. That it does not mean I can only bear arms for militia use or if I am in a militia.

Other court ruling have defined arms, and Miller defined arms to mean consistent with weapons in common use. McDonald vs Chicago post Heller ruled personal arms in common use.

Both sides love to throw out Founders intents, and SCOTUS ruling to prove their case. Miller also ruled it was Constitutional to regulate "unusual" weapons and upheld the NFA and registering fully auto weapons. Heller also hinted it would be legal for DC to require permits for hand guns... but they HAD to issue permits.

Bottom line is all we have is legal precedence and SCOTUS rulings and guess at how the Court would interpret new challenges. What has been clearly established is exactly what it says in the Constitution.... "The right of the people to bear arms shall not be infringed." What arms that pertains to and what amount they can be regulated is what we are all debating. Heller ruled that the Founders not envisioning modern personal arms was nonsense. They pointed out all the other modern things the Constitution applies to.

I actually agree with you that the militia clause is not meant to mean that the right to bear arms only applies to those in a miltia.  But in allowing for restrictions on military-style weapons Heller is essentially severing the right to bear arms from the founders original intent as a defense against tyranny.  The majority even admits that this makes the 2A useless for this purpose in their decision.  But if you're using Miller like you say to define ok arms as those that are in common use, that seems to me to be a very "living constitution" interpretation.  It is taking current societal views and context into account when coming to a decision.  According to that rationale, if we were deciding this in the 1890's, it would be ok to ban semi-automatics because they were not in common use at the time.  If you are taking societal views into account, wouldn't that mean that you could change what are considered ok weapons as societies views change, especially since it is no longer dependent on the founders intent of providing a backstop against oppression?

Heller was a ban on hand guns. The court ruled that DC could not ban a weapon that a huge majority of the population deemed appropriate for personal defense. It was not about "assault weapons" or semi-autos because the DC ban included revolvers. The court hinted it could require a permit for hand guns, but that DC had to issue the permits. DC originally said one needed a permit to own a hand gun... then made it impossible to actually get one. They just went further to say the 2A was an individual right because DC held it was a collective right and did not apply to citizens.

I am taking common use as defined by Miller... in that it is common use "personal fire arms". And common to militia use. The short barreled shot gun was not deemed "common use"... even though they were widely used in war... "trench gun". But Miller did not show up in court so that side of the case was not argued and the court ruled it so. So fully auto is of common use to the militia, but not "common use" for a personal arm. Meaning, me personally, I have no use to lay down suppressing fire with a belt fed machine gun. After that I am just guessing... You could read the decisions your self and come away with a completely different take on it.

While semi-auto was not common use then... it certainly is now. And I can argue that I have the need to have a mag fed semi-auto for personal defense, and it would still be effective as a personal arm against tyranny... not that my semi-auto is going to win a war... but that I can be an effective soldier showing up in a civil war with my semi-auto rifle. That is how I take it. Not that we can all defeat the US Army with semi-autos... in a civil war both sides will be armed with modern weaponry from defections and sides being taken... but that I can show up and participate as a common man foot soldier with my semi-auto... exactly what was expected way back in the day.

At some point, the country will decide what is appropriate for a common arm. The action itself... a semi-auto pistol or rifle.. is just that. A bayonet lug is irrelevant and so is a barrel shroud or pistol grip or forearm. I do not see a problem with a that and do not foresee one anytime soon.

But what about Phasers? Ya, I'm talking Star Trek. A gun that you point at somebody and they instantly die... well I suppose at some point those will be available and common and allow me to be effective in a militia... but to think of people just pointing a object with instant death... well... I can't see that being a good thing, even in the context of all my current arguments against gun control... Hopefully when we get there we will be as evolved they are and we will cure mental disease and have no crime.

I want a phaser.  Would be much lighter to carry and I could put it on my key chain. 

Plus, I could always set it to stun which would be hours of fun with my cat.

I am taking common use as defined by Miller... in that it is common use "personal fire arms". And common to militia use. The short barreled shot gun was not deemed "common use"... even though they were widely used in war... "trench gun". But Miller did not show up in court so that side of the case was not argued and the court ruled it so. So fully auto is of common use to the militia, but not "common use" for a personal arm. Meaning, me personally, I have no use to lay down suppressing fire with a belt fed machine gun. After that I am just guessing... You could read the decisions your self and come away with a completely different take on it.

While semi-auto was not common use then... it certainly is now. And I can argue that I have the need to have a mag fed semi-auto for personal defense, and it would still be effective as a personal arm against tyranny... not that my semi-auto is going to win a war... but that I can be an effective soldier showing up in a civil war with my semi-auto rifle. That is how I take it. Not that we can all defeat the US Army with semi-autos... in a civil war both sides will be armed with modern weaponry from defections and sides being taken... but that I can show up and participate as a common man foot soldier with my semi-auto... exactly what was expected way back in the day.

At some point, the country will decide what is appropriate for a common arm. The action itself... a semi-auto pistol or rifle.. is just that. A bayonet lug is irrelevant and so is a barrel shroud or pistol grip or forearm. I do not see a problem with a that and do not foresee one anytime soon.

But what about Phasers? Ya, I'm talking Star Trek. A gun that you point at somebody and they instantly die... well I suppose at some point those will be available and common and allow me to be effective in a militia... but to think of people just pointing a object with instant death... well... I can't see that being a good thing, even in the context of all my current arguments against gun control... Hopefully when we get there we will be as evolved they are and we will cure mental disease and have no crime.

If a 'common weapon' is the type an ordinary citizen would bring to militia service in order to resist an invasion (as would have been the case in colonial times), but at the same time it's ok to limit those weapons to types that would be minimally effective for that purpose (ie non-military weapons), then where you set the line at what is allowable and what isn't is totally arbitrary, isn't it?  how do you argue that one gun is constitutionally protected but the next one isn't?  If it's ok to abridge the right to arms and diminish the ability to resist by banning machine guns, why then wouldn't it be ok to abridge it a little more and ban hand guns?  After all, I'm sure I show up and participate if I had a shotgun.  how do you draw the line?

If a 'common weapon' is simply one that is prevalent in today's society, then that has nothing to do with what one would bring to militia service in order to effectively resist and basically severs the right from the constitutional purpose of resisting tyranny,as they stated in Heller.  It opens it up to the whims of the time in a living-constitution manner and asks for modern interpretations and contexts in deciding what is common and allowable and what isn't.  If we ban handguns then all of the sudden it's not a common arm, now is it?  Perhaps if we relaxed the ban on RPG's everyone would have one and they'd be a common arm and then they'd be ok in that case?  If people suddenly got rid of all their handguns and they weren't common any more then suddenly the constitutional protections would change and it would be ok to ban them?  That seems ugly to me.

Either way, if the line is arbitrary and based on popular beliefs, then drawing the line for what is allowed/not allowed at single action vs semi-auto is no more or less valid than drawing it at semi-auto vs fully auto, right?  It all just depends on what society wants at that point in time and if that line changes next year that would be ok?

Drew my opinion the 2A was/is about is small arms. Small arms meaning pistols and rifles, hand held weapons that one person can operate proficiently and safely by themselves. I think if there is any argument that has constitutional merit it would be that the M16 or similar weapons should be allowed to be owned by law abiding citizens. Be that as it may, I'm not going to make the argument, I do think what is happening in NYC and what the Frankenstein Bill has in it equates to urinating on the document they have taken an oath to uphold.

If you can be effective resisting tyranny with a semi-auto though, just think how effective you'd be with a fully auto, or some stinger missiles!  In other words, if the point is to be able to resist tyranny, these limitations are not allowing people to exercise their right to it's fullest.

If a 'common weapon' is the type an ordinary citizen would bring to militia service in order to resist an invasion (as would have been the case in colonial times), but at the same time it's ok to limit those weapons to types that would be minimally effective for that purpose (ie non-military weapons), then where you set the line at what is allowable and what isn't is totally arbitrary, isn't it?  how do you argue that one gun is constitutionally protected but the next one isn't?  If it's ok to abridge the right to arms and diminish the ability to resist by banning machine guns, why then wouldn't it be ok to abridge it a little more and ban hand guns?  After all, I'm sure I show up and participate if I had a shotgun.  how do you draw the line?

If a 'common weapon' is simply one that is prevalent in today's society, then that has nothing to do with what one would bring to militia service in order to effectively resist and basically severs the right from the constitutional purpose of resisting tyranny,as they stated in Heller.  It opens it up to the whims of the time in a living-constitution manner and asks for modern interpretations and contexts in deciding what is common and allowable and what isn't.  If we ban handguns then all of the sudden it's not a common arm, now is it?  Perhaps if we relaxed the ban on RPG's everyone would have one and they'd be a common arm and then they'd be ok in that case?  If people suddenly got rid of all their handguns and they weren't common any more then suddenly the constitutional protections would change and it would be ok to ban them?  That seems ugly to me.

Either way, if the line is arbitrary and based on popular beliefs, then drawing the line for what is allowed/not allowed at single action vs semi-auto is no more or less valid than drawing it at semi-auto vs fully auto, right?  It all just depends on what society wants at that point in time and if that line changes next year that would be ok?

The pro-gun side is not arguing for full auto weapons.  Even though we want to keep our guns for the true purpose of the 2A I'm willing (if God forbid it even comes to that) to go at it with what we currently have.

I do not want full auto weapons making their way into the hands of criminals.  Heck, we cannot even keep the semis out of their hands.

Essential the pro-gun camps has willfully given up the right to carry a machine gun, so why is it a standard argument for the anti-gun camps to try to ask why they are not legal too?

(side note: at the time of the writing of the 2A the citizen DID have the same firepower as the military.)

Justice Scalia spoke to this on Fox News Sunday. Whether or not you are a Scalia fan it is certainly an insightful listen on how judges approach statutes and the Constitution.

http://www.youtube.com/watch?v=g3oxckyicBY