Are There Any Limitations on the "Right to Bear Arms"? Any at all?

[Yavin4]

The 2nd Amendment doesn't say anything about guns specifically. It just mentions "arms". "Arms" can mean more than just guns. They also can mean tanks, missles, portable nukes, etc.

If the NRA's position is that any limitations on assault weapons is a violation of our 2nd amendment rights, then there are no limitations on what type of arms that we can have.

So, what's the difference between owning assault guns and owning a nuke?

[shraby]

1. There are limitations on the 1st amendment when free speech endangers the

public such as shouting "fire" in a crowded theater. If there can be limitations on the first amendment then there can be on the 2nd amendment.

When the freedom to bear arms endangers the public is a good start...and the freedom to bear arms IS endangering the public in a big way.

I have the right to go about my business without having to worry that some nut with a gun is going to decide to kill as many as he/she (mostly he) can at the local mall/grocery store/bar/theater/school/college..you name the place.

Their rights are stepping on my rights big time!

[jmg257]

2. To see the intent of the 2nd, you can check the relevant laws at the time it was ratified.

Last edited Thu Jan 17, 2013, 12:11 PM - Edit history (1)

Immediately after, the Congress wrote the 1st Militia Acts, providing guidelines for how the people were to arm themselves for Militia service.

These included muskets and pistols, and associated accoutrements, and swords. Uniformity in caliber was also a desire.

No mention of artillery or cannon.

Securing small arms a person could reasonable be expected to provide himself was the obvious intent. Uniformity and effectiveness of the arms (and training) was a goal.

[bemildred]

15. +1.

History is so illuminating.

[Chathamization]

23. - Considering that all powers

not granted to the federal government in the constitution was granted to the states

- that the government at the time was against having a standing army

- that the US was in a somewhat precarious position

- and that the second amendment explicitly states that the purpose is to have a militia for state security (as opposed to having one to overthrow the state)

I don't think it's much of a stretch to imagine that the second amendment was there to make sure that every state would be able to pull it's weight if the US needed to raise an army and defend itself.

[jmg257]

27. You don't need to imagine - just have to read the constitution! :)

US Constitution, Article 1 Section 8;

The VERY VITAL Role of the Militias in securing our liberties, and the newly assigned powers of Congress over the existing Militias of the Several States:


Article 1 Section 8

"The Congress shall power:

"To provide for calling forth the Militia {of the several States} 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;

Article 2 Section. 2.

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;

[joeybee12]

32. Wikipedia says...

The Militia Acts of 1792 were a pair of statutes enacted by the second United States Congress in 1792. The acts provided for the organization of the state militias and provided for the President of the United States to take command of the state militias in times of imminent invasion or insurrection. This authority was used to suppress the Whiskey Rebellion in 1794.

So, if the Prez can take command of the militias, sort of puts a damper on the gun nuts assertion that the 2nd amendment was put there to keep an eye on the big bad federal government.

[jmg257]

34. That - and the whole "treason" definition in the Constitution!

And these days, he can use the Militia (Guard) AND the regular military to suppress insurrections, battle 'unlawful combinations', and enforce the laws.

[LiberalFighter]

35. Uniformity - hmmm nt

[bettyellen]

43. was everyone- including women and african americans allowed to by guns?

see how that works. Both ways.

[jmg257]

44. See how what works? Not sure what you are saying. nt

[bettyellen]

46. the intent was never to let all americans have free unregulated access to all weapons

there were fucked up limitations then, that do not apply now. and there are fucked up loopholes to current regulations now, that need to be fixed. but the original document is outdated in many ways.

[Lizzie Poppet]

3. Yep.

While "arms" can mean all those other weapons, in the common usage of the day, it meant what we would be more likely today to call "small arms." This distinction in usage is part of the basis for court rulings establishing that things like artillery, explosives, etc. can indeed be more strictly regulated than "arms."

[rightsideout]

4. A nuke contains hazardous materials

The general public isn't allowed to have hazardous materials so that eliminates owning many large scale weapons.

[hack89]

5. The NFA of 1934 defined the limits of what civilians can own

this should not be a mystery - it has only been settled law for 78 years.

Stop with the strawman arguments.

[Yavin4]

6. It's Not A Strawman Arugment. "Arms" Technology Changes Over Time.

An assault weapon can now do almost as much damage as a small explosive device. Maybe even more.

How many people would have died/injured if a grenade was thrown into that movie theater in Colorado instead of using an assault weapon?

[hack89]

7. There were deadlier weapons than "assault weapons" being sold to civilians before 1934

that is why the the NFA was written in the first place.

Semi-automatic rifles have been around for nearly a hundred years. The AR-15 is a 50 year old design. We are not talking about new weapons technology.

[Yavin4]

9. So, Then You Agree That Banning High Capacity Guns Is Not An Infringement of the 2nd Amendment

Since there's precedent for such limitations.

[hack89]

10. " High Capacity Guns" is a meaningless term

are you referring to semi-automatic rifles? Handguns?

[Yavin4]

20. No one should own a gun that can shoot more than 6 rounds without re-loading

A manual, low capacity gun is more than enough for self-defense and hunting. Anything above that is a WMD.

[hack89]

21. OK. nt

[Bake]

31. What's magical about the number 6?

Most revolvers are designed to hold 6 rounds in the cylinder. A "standard" 9mm or .40 cal semi-automatic is designed to hold a magazine of 12-15 rounds.

I don't need an extended magazine that holds 30 rounds. THAT'S what I call hi-capacity -- more than the gun was designed to hold. What's magical about the number 6?

I support reasonable gun control measures, including hi-cap magazines. The devil, however (as always), is in the details--the DEFINITIONS.

Bake

[Yavin4]

39. Most people have revolvers with six rounds

That's the norm. Anything above 6 should be banned. Above 6 and you're getting into WMD.

[Bake]

41. I assume you've done the research to know what "most people" own?

And a standard issue 14 or 15 round mag in a semi-auto handgun is HARDLY a weapon of mass destruction. You DO know what a real WMD is, right? One person with a 9mm does not qualify as a WMD.

The ridiculous, over-the-top rhetoric is one reason many of us have a hard time taking people like you seriously.

Bake

[Yavin4]

42. "And a standard issue 14 or 15 round mag in a semi-auto handgun is HARDLY a WMD"

Why in the fuck would you ever need 14 or 15 rounds of ammunition? You really don't see that the potential for killing 15 people at one time even before re-loading as a WMD?

[Bake]

48. WMD = Weapon of Mass Destruction

You may have heard of it. It's used to refer to nuclear weapons. Not handguns. Hell, not even "assault rifles." Nukes.

Once again, it's this over-the-top rhetoric that makes responsible gun owners not trust you.

And how many rounds DO I need? Six? That means, according to you, that I could kill six people without reloading (assuming I don't miss). The number is arbitrary. I love how your side arbitrarily picks a number that supposedly represents how many rounds somebody "needs," but you won't admit that it is simply an arbitrary number.

Bake

[Yavin4]

49. Do You Know How Many People Died in the July 2005 Subway Bombings in London?

52 died. There were 4 terrorists involved in a coordinated attack. Or, 13 deaths per attacker.

The Newtown killer killed 26 people in a solo attack. His weapon was an assault weapon. He was able to out kill the terrorists on a per attacker basis. If an assault weapon is not a WMD, then tell me what it is.

The sole reason why I chose 6 is that we know that we cannot take everyone's gun away. People are going to own guns for various reasons. The SCOTUS has even ruled as such. However, that doesn't mean we should allow people to own WMDs.

[Chathamization]

24. Well, the Supreme Court did weigh in

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' 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."

"The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

But I don't think that qualifies as being settled at all.

[Bandit]

8. I believe it is illegal to own a shotgun with less than 18 inch barrel and if hunting water fowl

your shotgun can only have three round capacity...You can't own a switchblade knife but you can own an assault weapon... go figure. some limitations have been around for more than half a century and no one raised any ruckus...

[cherokeeprogressive]

11. Yes

[jambo101]

12. Anarchy

From what i'm understanding by listening to the reason for gun nuts to own lots of guns is they think the possibility exists that the American government is going to attack them for some reason and they'll need to defend themselves with lots of guns..Why the American government would attack its own citizens i have no clue, and if the Government did go nuts and attack its own citizens most of the population would perish anyway,youd be left with some form of anarchy as there'd be nothing left for the government to govern,just a few gun nuts living in caves.
Maybe a bunch of idiots like this would be all that remains
[link:

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[bongbong]

13. Here is the position of the gun nuts

"We want to be able to own any weapon that the NRA tells us we should whine about!"

Here is the position of the NRA:

"The only thing we care about is selling as much product from our sponsors (gun makers) as we can"

[bemildred]

14. The language of the amendment leaves it somewhat open.

On the one hand it says: "not be infringed", which suggests clear and uninfringed upon territory, unconstraint, broad interpretation.

And it says "arms", not "guns" or even "weapons", it's the right to bear "arms" that is not to be infringed, so it's seems like a military context, not criminal justice or self-defense. And the militia reference supports that too.

Although I suppose there is this from Unforgiven:

Will Munny: Well, he should have armed himself if he's going to decorate his saloon with my friend.

But that leads to the idea that it is not an individual right, it is a collective right of self-defense by force of arms, not an individual right to fend off burglars. And I think that was the original intent, as it would not have occurred to our founders that individuals as citizens would not be armed, as well-armed as they could afford. Things were a lot different back then.

[rrneck]

16. Of course there are limits. And there should be.

There are three overall classes of weapons that relate to the range from which they are deployed and the kind of damage they are designed to do.

http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter20_rule71

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Weapons that are by nature indiscriminate are those that cannot be directed at a military objective or whose effects cannot be limited as required by international humanitarian law. The prohibition of such weapons is also supported by the general prohibition of indiscriminate attacks

http://en.wikipedia.org/wiki/Hand-to-hand
Hand-to-hand combat (sometimes abbreviated as HTH or H2H) is a lethal or nonlethal physical confrontation between two or more persons at very short range (grappling distance) that does not involve the use of firearms or other distance weapons.[1] While the phrase "hand-to-hand" appears to refer to unarmed combat, the term is generic and may include use of striking weapons used at grappling distance such as knives, sticks, batons, or improvised weapons such as entrenching tools.[1] While the term hand-to-hand combat originally referred principally to engagements by military personnel on the battlefield, it can also refer to any personal physical engagement by two or more combatants, including police officers and civilians.[1]

Between indiscriminate weapons and "melee weapons" are the small arms that one person can carry and use. So one person may carry and use a semi automatic firearm because you have to select your target, point the gun at it and shoot. Full auto machine guns are considered indiscriminate weapons because they can lay down a hail of bullets like a garden hose of fire. Full auto firearms are heavily regulated and rather rare in the United States. "Melee weapons" are also regulated I believe but to a lesser extent. It isn't fashionable to carry a sword or a battle axe to Starbucks, so I guess it isn't much of a problem.

The firearms legal for common civilian use in the United States are further regulated by caliber and size. Common bullet calibers are available to the public in sizes ranging from .17 to .50 inches measured in the diameter of the bullet. Rifles and shotguns are required to be a minimum length which is 16" barrels and 18" barrels respectively.

These distinctions are by no means exclusive of one another. A rifle can be a melee weapon if it used as a club or has a bayonet attached. The distinction between 60 rounds per minute (semi auto) and 800 rounds per minute (full auto) becomes moot if you find yourself on the wrong end of one. A rifle can be shortened so much that it becomes a pistol, and a pistol might become a rifle if a shoulder stock and a longer barrel is attached.

The three distinctions above can only be rough guideline for the regulation of arms. Developments in firearms manufacture and design, strategic and tactical changes in their use, and changes in cultural norms all too often make existing distinctions between one gun and another moot. Further distinctions will be doubly moot because the surrounding technological, tactical, and cultural reasons for their use become significantly more important than the weapons themselves.

Here are some principles I try to keep in mind when it comes to guns.

1. There is no such thing as a benign bullet.
2. It is always wrong to kill, no matter why.
3. Never judge a man with a gun in your hand.
4. The cops can't jump through a rip in the fabric of time.

[Hugabear]

17. As long as you can own a single-shot musket, then your right to bear arms is NOT infringed

The 2nd Amendment doesn't that your right to own any type of arms you want shall not be infringed.

So as long as it's legal to own some kind of arms, then there shouldn't be an issue.

[onenote]

18. That's not a very compelling argument

Just as it would not be a compelling agument to say that the freedom of the press wouldn't be infringed by a law that limited newspapers to those printed by the same processes as was used to print newspapers in the 18th century and that regulated the content of movies because movies didn't exist when the Bill of Rights was ratified.

[Hugabear]

36. Do you believe the 2nd Amendment gives you the right to own ANY type of arms you want?

If you believe the 2nd Amendment was designed to give civilians access to the same types of arms commonly carried by soldiers, then you would have to allow for such weaponry as fully-automatic weapons, mortars, anti-aircraft missiles, anti-tank rockets, RPGs, grenades, etc. All of these arms are routinely carried by soldiers.

[onenote]

37. Nope. But I don't think that, as currently interpreted by the SCOTUS, it can be limited to muskets

because that was what was used in the 18th century (just as the First Amendment isn't constrained by what constituted the "press" or the means of conveying speech that existed in the 18th century, which seemed to be the poin of your previous post).

The current state of law appears to suggest that the 2nd Amendment should be viewed with an eye towards the modern day version of the types of weapons that individuals commonly keep in their homes for self-defense (not the types of weapons used by soldiers). I'm not saying that is the right test, just that it appears to be the test that the Court's majority would apply. Change one justice and we might be able to have a much narrower definition, but until then....

[beevul]

33. As long as you can read and print just 1 book...N/T

[nadinbrzezinski]

40. So you know

At the time, the Kentucky long rifle was state of the art...here is where the militia comes in. Part of the social contract at the time is you showed up for drill.

Why the Guard s that modern day...well regulated...militia.

[One_Life_To_Give]

19. Lexington wasn't holding Nukes or even Cannon

Nor did most have state of the art military firearms. That early morning is a classic of Bearing Arms. At the ready making your point that you are not backing down and rolling over to unlawful government orders.

This was also a time when all ships would be carrying atleast 1 signal cannon. And in another two decades the privateers would make their mark on the seas in the war of 1812.

[stklurker]

22. SC has been here

http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd2

"In United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed–off-shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.”5 The significance of the militia, the Court continued, was that it was composed of “civilians primarily, soldiers on occasion.” It was upon this force that the States could rely for defense and securing of the laws, on a force that “comprised all males physically capable of acting in concert for the common defense,” who, “when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”6 Therefore, “n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ 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. Certainly 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.”7

Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms,8 and proposals for national registration or prohibition of firearms altogether have been made.9 At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer."

[Taverner]

25. Lots of limitations. For example, the "well regulated militia"

[elleng]

26. There are certainly limitations:

The Second Amendment right is not a right to keep and carry any weapon in any manner and for any purpose. The Court has upheld gun control legislation including prohibitions on concealed weapons and possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms. The historical tradition of prohibiting the carrying of dangerous and unusual weapons supports the holding in United States v. Miller that the sorts of weapons protected are those in common use at the time.

The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The total ban on handgun possession in the home amounts to a prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense.

http://www.lawnix.com/cases/dc-heller.html

[k2qb3]

28. There are a number of arguments that all converge on the same area...

The Miller decision says the 2nd amendment applies to military weapons in common use (service rifles) specifically. US law defines the militia as all military-age men.

The Heller decision reaffirms it's an individual right that is not absolute, it mentions select fire weapons such as the m16 as being an example of something that can be regulated. (which is a conflict actually since the M16 is the current US service rifle.)

The discriminate argument that differentiates repeating firearms from belt fed machine guns and explosives that kill indiscriminately.

Posse comitatus/militarization of the police/ parity of force arguments that law enforcement should not be prosecuting people for possessing the same defensive tools they use themselves. Exceptions for law enforcement cede the defensive utility of the item in question, they're not Judge Dredd, their weapons are defensive. (and personally I think the NFA items they employ have almost no legitimate law enforcement utility).

So that puts us more or less right where we are, we aren't going to keep criminals from using high capacity magazines, there's too many of them and they're just boxes with springs in them anyway, the 3d printer plans are already available. So all we can do is put additional limits on the law abiding and the police, or not.

I don't believe those who advocate gun control would like the results if the miller decision was put to the test, and it certainly will be if a magazine or AWB is passed.

[riverwalker]

29. "well regulated"

they used the words "well regulated", not just "regulated", they even emphasized regulation by adding the word "well".

Merriam-Webster:
reg·u·lat·ed reg·u·lat·ing
Definition of REGULATE

1

a: to govern or direct according to rule

b (1): to bring under the control of law or constituted authority (2): to make regulations for or concerning <regulate the industries of a country>

2

: to bring order, method, or uniformity to <regulate one's habits>

[Motown_Johnny]

30. Yes, there are limits. The 2008 SCOTUS decision D.C. v Heller

is among the more recent examples defining some of them.


http://www.nytimes.com/2012/12/19/us/gun-plans-dont-conflict-with-justices-08-ruling.html?_r=0

^snip^


“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Justice Scalia wrote. Government buildings in general could still ban guns. And the court said it had no quarrel with “laws imposing conditions and qualifications on the commercial sale of arms.”

Justice Scalia added that laws banning “dangerous and unusual weapons” are “another important limitation on the right to keep and carry arms.” He gave an example: “M-16 rifles and the like.”

[OneTenthofOnePercent]

38. I honestly believe the vague use of the term "arms" was purposefully done to

accommodate changing technology. The concept being that people needing to fight another army should be armed with whatever common weapons a soldier would typically wield. "Well regulated" would have been translated as "well functioning" back in the language of that time. Back then, many private citizens owned ships, cannons, and pretty much whatever the militia/military brought to the playing field.

HOWEVER... I don't believe the forefathers ever thought there could be the kind of indiscriminate or standoff type weapons we have today. I think the 2A would be a little more descriptive if you told Ben Franklin that someday we would have a weapon that harnessed the power of the SUN and a flying machine armed with that single weapon/bomb could leave to destroy England after breakfast and be back before bedtime.

Nevertheless, I do think that "arms" was used purposefully - which beg the question, how much weight can you really give to the technical based opinions someone alive 250 years ago?

Personally, I would draw the line at restricting "indiscriminate weapons"... very much like the 1934 NFA.

[JoePhilly]

45. I say the right path here is the COMMERCE clause.

The 2nd amendment allows you to "keep and bear" arms. It says NOTHING about the SALE and PURCHASE.

Congress has broad authority to regulate COMMERCE.

So you have the right to "keep and bear" arms, but the SALE and PURCHASE of those items, can be regulated.

This approach might not work with the current congress, but I think an approach along these lines could be very effective.

[Marrah_G]

47. sigh....ffs