Question: Is the right to bear certain firearms, by state or city, protected by the 14th amendment?

[cabluedem]

I am particularly wondering about the recent "Heller" case in Washington D.C. in regards to handguns and also the various state gun-laws, as they pertain to the possession of semi-automatic weapons or rifles, commonly called "assault-weapons".

Both California and New York states, for instance, have firearms laws strictly regulating or restricting most all "assault-weapons", no matter what the gun owners here wish to call them.

These states have already defined, by law and for themselves, what an assault-weapon is in their own locales and I wish for participants to focus on the matter of the 14th amendment coming into play here or not.

Any thoughts about these matter are welcome, and I would prefer a civil discussion without regards to what you may believe an assault weapon is, or is not.

[Name removed]

1. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Mojorabbit]

5. First thing you learn

is to treat every gun as if it is loaded. If you daughter had not been taught that she should not have been holding the gun. It was the first thing I learned as a little girl.

[cabluedem]

7. This was not meant to be an "anti-gun" thread. Please post your rant on your own thread. Thanks. nt

[Fire_Medic_Dave]

38. So you are a pro RKBA democrat who opposes additional legislation on firearms?

[gorfle]

24. Good for you!

It was smart of you to ask if the chamber contains a round, and it was poor firearm handling on the part of the owner not to check.

I was raised and instructed that the first thing you do when you pick up or are presented with a firearm is to cycle the action and to look and feel down the barrel and into the chamber to insure that there is no bullet stuck in place or in the magazine. This procedure should then be repeated the moment the firearm is handed to someone else - even if the someone else just witnessed the previous person do it.

Moreover, the #1 rule of firearms is that you treat every firearm as if it was loaded. When you treat every firearm as if it were loaded, no accident with tragic consequences can occur.

Your co-worker was irresponsible. I'm glad you forced him to check.

[MannyGoldstein]

2. Guns Are Undefined Area In The Law

Nuclear bombs are arms. Do I have the right to bear one?

If not, why not?

It would be great if we could amend the Constitution to deal with which arms we have a right to bear.

[bossy22]

4. that has already been done

in the D.C. V Heller decision- arms are to be considered those weapons that are "in common use at the time for lawful purposes" They furthered defined it to imply that handheld weapons were only protected because those were the only type of weapons a typical soldier would be bearing in battle.

Nuclear bombs are not a weapon that is in "common use for lawful purposes"

[MannyGoldstein]

6. Typical Soldiers Also Have Hand Grenades

So I can keep a case of them at home?

And where does the Constitution say "in common use at the time for lawful purposes"? I'm as Liberal as can be, but I do agree with many on the Right that we've been torturing the Constitution for some time now.

[bossy22]

12. hand grenades are explosives

not arms- and some soldiers carry grenades....but almost every soldier has a light weapon of some sort

"And where does the Constitution say "in common use at the time for lawful purposes"? I'm as Liberal as can be, but I do agree with many on the Right that we've been torturing the Constitution for some time now. "

it does not explicitly say that, thats how the court interpreted it in D.C. V Heller.

[MannyGoldstein]

14. Arms: n.weapons and ammunition; armaments: arms exports.

Dictionary seems to side with me on this. Thus, I have the right to bear hand grenades. I'll head up to NH tomorrow to buy some - I understand most liquor stores stock 'em.

[bossy22]

15. you can buy handgrenades

up in NH, just make sure your have your $200 tax stamp and Class 3 forms filled out

im serious

[MannyGoldstein]

17. Now How Did I Guess That....

But please tell me I'm wrong about the liquor stores!

[bossy22]

19. unless the liquor store

is also a Class 3 weapons dealer than i doubt they will be selling grenades

[bossy22]

16. second

dictionary definitions dont trump court interpretations

your point is moot- the court has already determined that hand grenades are not protected

[MannyGoldstein]

18. When Was That Determined?

On what basis?

[bossy22]

20. ...again....D.C. V Heller

None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individualrights
interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

[MannyGoldstein]

21. Where Does It Say "Hand Grenades"?

And what's the basis for the decision?

[bossy22]

22. this is silly

stop acting like a 10 year old kid....this game is silly

Just because it isnt explicitly said doesnt mean its implied...which it is

its implied that explosives are considered dangerous and unusual...and that they are not in common use because not many private citizens own and use hand grenades

the basis for this decision- or i should say part of it- is based on the holdings in miller, which limited the types of weapons that would be suitable for militia service and found that a sawed off shotgun was not a suitable and therefore could not be protected and held that the NFA was constitutional.

AND THE NFA BARS COMMON POSSESSION OF SUCH EXPLOSIVES.

so in a circle logic- since the NFA is constitutional, since the NFA bars common possession of hand grenades, therefore the second amendment does not protect hand grenade possession

[cabluedem]

33. I agree. The entire bomb or hand grenade debate is a red herring. nt

[cabluedem]

23. "Dangerous and unusual weapons"? Of course a firearm is dangerous, but so is a car....

...and I haven't a clue what they mean by "unusual weapons".

That could be anything, really, but then like most laws which are contested, they tend to be
somewhat vague in their meaning, leading up to a court case to determine what it is, presumably.

[Fire_Medic_Dave]

35. Explosives are covered under the National Firearms Act of 1934.

[cabluedem]

8. You are off topic. I am not speaking about nuclear arms or hand grenades here.

Please read my OP over again. Thank you.

[MannyGoldstein]

9. But You Are Talking About Guns And The Law

And my basic feeling is that, most importantly, the entire thing's a mess.

[cabluedem]

11. I am speaking about firearm laws as they pertain to state edicts, not hand grenades...

..which are not a weapon that can be targeted like a firearm, or a bow and arrow, for that matter.

A hand grenade is basically a bomb, not a firearm, and destroy indiscriminately.

[bossy22]

13. you may have a point

it will take sometimes to figure out specifically which arms are protected

my own personal view is that the arms protected go all they way up to what a average police officer in the US would carry/posses. this includes a Self-loading pistol and a Self-loading Tactical Carbine.

I know many will disagree with me and say its looney that i believe that citizens should be as well armed as the police...but in my mind it makes sense. Police weapons are designed to be defensive weapons....not offensive weapons. The handgun on an officers belt is not designed to be used to "attack" crime...but to allow the officer to defend himself in the process of performing his duties. His/Her tactical carbines provides this defense when there is great distance or greater firepower being used against. Either way....the common officers weapons are defensive in nature (for this discussion im not considering SWAT teams to be common police officers- they are a minority of the law enforcement community)

[gorfle]

25. What constitutes "arms"

It is generally accepted, and Heller confirms, that "arms" as referred to in the second amendment refers to small arms, such as an infantryman would use, that when operated, fire a single projectile at a single target with each actuation of the firing mechanism.

Explosives do not fall in this category, and are considered Title III items requiring a $200 annual tax stamp and extensive background checks in order to obtain a permit to possess.

The founders specifically did not enumerate specific types of arms because they knew technology would advance and any arms they could enumerate would be superseded as new technology came about.

[jmg257]

27. Would you provide yourself with one and bring it to a muster with you?

Would it be meet the guidlines of the most recent Militia Act? Would it meet the intent of the Militia clauses or the 2nd amendment in clearly dealing with personal arms in common use? Would you be able to train with it in military excercises and evolutions often enough to earn the term "well regulated"? Would it be a viable weapon for self-defense, sporting use, or all lawful purposes?

Then no, you do not have the right to bear one. Sorry.

[MannyGoldstein]

28. Where Do You See All Of That In The Constitution?

Were The Founders too illiterate to state their intentions?

I think not. If they meant all of that, they would have written all of that.

[jmg257]

31. The constitution is quite clear if you know what they were talking about, and why.

The Militias existed long before the constitution, as well as the people's role in them, and what minimum "arms" were expected to be supplied & kept by the people. The right to arms for private use also existed long before then. These are (were) well understood entities. They were NOT created by the US constitution, nor did they have to be defined by it. The existing state militia acts, private & state rights, new/re-distributed federal powers, the federal Militia Acts, the debates in Congress, an understanding of colonial opinions of a large Army, the Bill of Rights, the Articles of Confederation, the state ratifying committee recommendations, the ideals of a limited government, disbelief that the people would freely choose less liberty, private property rights, etc. etc. are all additional clues that the 2nd pretty much means exactly what it says, including what would qualify as "arms", and the numerous reasons why the right to them is secured.


The intent and "definition" of the 2nd only got muddied by anti gunners and other short-sighted people who do not agree with limited central government &/or all the rights of the people.

[krispos42]

The 1934 Firearm Control Acts deals with this

Full-auto weapons and explosive devices are subject to a higher standard of regulation than semi-autos, bolts, pumps, levers, and break-action guns.


I think of it as the difference between a discrimatory and indicrimatory weapon. Full-autos and explosives have a "lethal zone" of indiscriminate destruction. Non-full-autos are discrete; the shooter must pull the trigger for each shot and as such has complete control over where every bullet goes.


This is, in my opinion, a reasonable and common-sense differentiation and regulation, much like laws against slander or incitement to riot are not against the First Amendment.



I hope this was helpful.

[Fire_Medic_Dave]

34. Sorry you are wrong, they clearly are defined under the National Firearms Act of 1934.

[cabluedem]

36. Sorry, but we are speaking of constitutional law here. Not edicts enacted under color of law...

..as the NFA 1934 act was, in the year after the Prohibition of Alcohol was legitimately eliminated by Congress, as a means of keeping all of those Department of the Treasury "Revenuers", sometimes now called the ATF, employed at doing "something" to keep the very same bureaucracy churning away, non-stop, for over 70 years now.

Believe it or not, Prohibition of booze was quite *legal*, as it was passed by a majority of US states, as was intended by the founders.

Read your history, if you don't believe me. It really is "all about the money", when you get down to the nitty-gritty of the deal, pal.

[Fire_Medic_Dave]

37. Sorry, Manny, didn't say that. He said they were undefined under the law not the constitution.

[bossy22]

3. i think it is

but we will have to wait for a court case to settle it out

the text of the 14th says this "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

to me, its clear that the 14th makes the second apply to the states- the 2nd is part of the bill of rights which are the core principles of the privileges and/or immunities that come with being a citizen of the United states

Then again some other parts of the bill of rights have been found not to be incorporated such as grand jury trials in certain cases. Incorporation is a weird legal topic- some things get incorperated, others dont. I find the reasoning not really clear for this...many times i think incorporation rulings are more political than actually legal

[cabluedem]

10. Thanks for a cognizant post on the subject. Like you, I agree on a court case settling this, but ......

I would not like to place a bet on which way it would go with any court case, including the SCOTUS.

CA and NY are very high population states with a lot of clout to bear, both monetarily and politically, IMO.

Also agree with you on the political aspect of incorporation rulings.

[SteveM]

30. Some more thoughts on incorporation...

Among conservative legal scholars, the "incorporation clause" is viewed with skepticism. I imagine because during the civil rights "era" of the last 50+ years, most court cases cited the civil right being violated (say, 1st, 4th, 5th, 6th, etc.) AND the 14th Amendment. Conservatives saw this as giving too much power to the federal court system. I think it is ironic that what is mistakenly seen as a "conservative cause" -- Second Amendment rights -- may rely on use of a "liberal" incorporation clause.

BTW, the debate over the 14th Amendment (1868) was suffused with the need to at least guarantee freed blacks in the South the right to keep and bear arms in the face of gangs, terrorists -- and state-sanctioned MILITIA -- bent on suppressing blacks.

SEE: www.georgiacarry.org (search locally for "Heller brief"). This is an excellent summation of the racist nature of gun-control laws, be they colonial, antebellum, Jim Crow, modern era.

[jmg257]

26. Incorporation... and some thoughts

"Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the 14th Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890's, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments."

From wiki - pretty much explains the picking and choosing of which rights are secured against infringement by states. Incredibly, we the people allow that the stricter level of law is usually the more valid one.


It is utterly amazing that the right to arms guaranteed in the constitution and explicitly secured by the 2nd can be..."further" restricted by the states, or the feds, or ANY level of govt. When the original intention of the constitution with regards to the Militias of the several States is considered, there should be no way a State would be able to render the militias less effective/ineffective by denying the people the most effective arms(guns) available. The role of the Militias is extremely vital, because when in federal service they are "to execute the Laws of the Union, suppress Insurrections and repel Invasions" (which BTW is in perfect harmony with the very reasons given in the preamble - to "establish Justice, insure domestic Tranquility, provide for the common defence"). When states restrict the right to arms, as in NY, they are denying the federal government an entity which MUST exist - the effective Militia, a well regulated militia being necessary, because the guarantees in the constitution and our freedom depends on it. And when one considers that "the Militia" are the Militias of the Several States, then it can also be seen why NO federal power was given to restrict the people's arms, and why federal power is explicitly restricted via the 2nd - because they could deny the States and the people their best security - the effective Militia. This is why an AWB at any level SHOULD be deemed unconstitutional.

Of course the role and the definition of the Militia has changed (or has been recreated from broadcloth) by federal usurption of power via the Dick Act, etc., but the intention, the guarantee and security of the constitution is still there - is still the law of the land.

Further, the militia is only the primary reason for the securities in the 2nd. When the private right of the people to have arms, for self-defense, for sport, for all lawful purposes, is considered, as it certainly was when ratified, it is clear that most other restrictions are also unconstitutional (i.e handgun bans, gun free zones, etc.).


A1,S8
The Congress shall have Power

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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;
...
A2,S2
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;
S4
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

[jody]

29. Suggest you read the briefs for Nordyke vs. King in the 9th Court of Appeals re the 2nd and 14th.

I’ve read them all and found the Amicus of SAF by Gura very educational.

Suggest you compare the briefs for incorporation with the anti-incorporation briefs.

I found one side's arguments much better written and much more persuasive than the other.

Links at http://www.hoffmang.com/archives/000959.html

[DU GrovelBot]

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