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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsFrom Scalia's majority opinion in D.C. vs. Heller, re: gun control
I decided to make this post in response to the alt-right circulating a doctored photo of Emma Gonzalez tearing the Constitution. Im not a lawyer or constitutional scholar, but Ive long been perplexed by the meaning and application of the 2nd Amendment, and decided to do a little reading (hardly exhaustive) on the subject.
The 2008 District of Columbia vs Heller ruling by the Supreme Court is the most recent court finding on the 2nd Amendment. As the alt-right likes to hold up the US Constitution like they own it, and preach about it as though only they possess the cognitive skills to understand it, I thought I would quote a short section from Scalias opinion, so we can see what a right wing Supreme Court Justice had to say about gun regulation:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons. See 4 Blackstone 148149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383384 (1824); ONeill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military serviceM-16 rifles and the likemay 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.
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There you have it from the horses mouth. It should be abundantly clear from Scalias words that owning an AR-15, which is a civilian knock-off of the M-16, is not a protected right under the 2nd Amendment.
hack89
(39,171 posts)no AWB has ever been declared unconstitutional.
lutherj
(2,496 posts)hack89
(39,171 posts)Once thing that recent history has shown us is that public support does not always translate into votes. And none of the polls regarding gun control are limited to likely voters. And it is very unlikely that all that public support is evenly distributed. We do not hold national referendums. Politicians will not look at national polls - they care only about the people that can vote for him. The fact that blue states overwhelmingly support gun control means nothing to a politician in a red state.
fallout87
(819 posts)If tRump gets another supreme court appointment, I guarantee they will hear a case and throw out AWB's under the common use argument.
hack89
(39,171 posts)so far they are more than happy with the status quo.
treestar
(82,383 posts)which included the Second. Zero. If the majority of the Public wanted Roman Catholicism as the national religion, they will not get it.
fallout87
(819 posts)An M-16 is not an AR-15. An M-16 is capable of full auto fire. The Ar-15 is semi automatic only. Scalia's opinion says that we may not ban firearms in common use. It would be hard to argue that the AR15 is not in common use. There are millions of them in civilian hands
elleng
(130,864 posts)'in civilian hands'
Igel
(35,296 posts)n/t
lutherj
(2,496 posts)ratified. AR-15s are in common use now, but thats irrelevant to Scalias argument. Im aware that the AR-15 is semi-automatic only. Thats also irrelevant.
fallout87
(819 posts)Banning a fully automatic gun was deemed constitutional by the majority in Heller. Banning a semi automatic rifle was not.
AR15 does not equal and M16.
Also, AR15's are in common use at this time. The second amendment makes no such claim that only muskets are protected.
aikoaiko
(34,169 posts)..."M-16 rifles and the like"
or
... dangerous and unusual weapons.
or just more generally.
EX500rider
(10,835 posts)Actually it is a semi-auto firearm that looks like the fully auto machine gun M-16/M-4 that that military uses.
The AR-15 fires one round per pull of the trigger, the M-4 has select fire: single round, 3 round burst and full auto.
Lee-Lee
(6,324 posts)The decision said that firearms protect by the Second Amendment are those in common use
If you are talking about the AR-15, it is the most common and popular rifle style sold in the last two decades. Since it was introduced more than 50 years ago millions have been made by well over 100 different manufacturers.
Or all types of designs of rifles it is by far the most commonly made and sold.
Based on estimate of the number of rifles in private hands versus the number of AR style rifles made around 8-10% of the rifles owned are AR-15s.
While they bear a relationship with the M-16, you cant use that to try and say they are not protected. Because it looks like is not the same legally as it is the same as. M-16s are not in common usage among the public. AR-15s are.
lutherj
(2,496 posts)At the time means in use at the time the amendment was ratified. The third paragraph elaborates on this, and particularly the last sentence of the third paragraph. Congress could constitutionally ban all semi-automatic guns, according to Scalia at least as I read it. I dont think they ever would, nor am I advocating such an action.
In fact, assault style rifles were banned for a period of time in the 90s. The law had a sunset clause and Bush let the law expire.
EX500rider
(10,835 posts)Not really, they banned some features on assault style rifles, things like bayonet mounts and flash suppressors, the manufacturers made a few changes and continued to sell them.
lutherj
(2,496 posts)prohibited. The list included the Colt AR-15. So the AR-15 was banned for 10 years until the law expired.
fallout87
(819 posts)Certain model names were banned like the colt AR15 and Armalite AR10, but those are only model names. All colt had to do was make a new lower, call it the Colt 6921 and it was legal to sell.
Thats the problem with AR15 bans. They ban certain features and then the manufacturers just figure out workarounds.
hack89
(39,171 posts)For example, the rifle used at Sandy Hook was legal.