The Definitive U.S. 2nd Amendment Debate Thread

[IglooDame]

Bu according to the supreme court, neither is a sawed-off shotgun.

The Supreme Court was mistaken.

Since Wiki seems acceptable here:

On March 30, 1939 the Supreme Court heard the case. Attorneys for the United States argued four points:

1. The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
2. The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
4. The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.

Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court.

On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:

"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."

(bolding mine)

And further along:

Some argue that fundamental issues related to the case were never truly decided because the Supreme Court remanded the case to the federal district court "for further proceedings", which never took place -- by the time of the Supreme Court decision, Miller had been killed, and Layton made a plea bargain after the decision was handed down, so there were no claimants left to continue legal proceedings.

Subsequent rulings have been allowed to stand, indicating that short-barreled shotguns are generally recognized as ordinary military equipment if briefs are filed (e.g., see: Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), describing use of short-barreled shotguns in specialized military units.)

 

[Che Guava]

..which is what makes this debate so deliciously timely, if we are indeed going to have another look at this law in the supreme court!

Very interesting details of that case. I wasn't aware that they didn't even show up (!)

 

[.Shane.]

6 pages and its already so deep... hmm...

 

[Bugfatty300]

Bu according to the supreme court, neither is a sawed-off shotgun.

Hence the 1934 National Firearms Act decision. Even though short barreled shotguns have an explicit usefulness in combat and home defense (District court prior to Miller vs US). They also basically said assault rifles aren't suitable for militia use.

The supreme court also used doubious tricks "revenue" and a "interstate commerce" to get past the 2nd Amendment.

 

[Che Guava]

6 pages and its already so deep... hmm...

But always welcoming

Just give an answer to the original questions posted in the OP and join in!

 

[IglooDame]

Hence the 1934 National Firearms Act decision. Even though short barreled shotguns have an explicit usefulness in combat and home defense (Miller vs US). They also basically said assault rifles aren't suitable for militia use.

That's the most interesting part. If SCOTUS sticks to a purely "militia weapons" way of interpreting it (though IMHO that is like interpreting "free speech" to include only verbal utterances), then small concealable pistols would presumably not be constitutionally protected, but the firearms the gun-banning crowd has been focused on for a decade ("assault weapons") would be, including the full-automatic versions.

I predict that Parker will not be appealed by the District of Columbia to SCOTUS. The risk to the anti-gun stance is too great, because if they win they're simply back to the line of scrimmage fighting for every bit of banning they can get, but if they lose and Parker is upheld, they are effectively shut out of Congress and the Feds are out of the gun-control business.

 

[Bugfatty300]

That's the most interesting part. If SCOTUS sticks to a purely "militia weapons" way of interpreting it (though IMHO that is like interpreting "free speech" to include only verbal utterances), then small concealable pistols would presumably not be constitutionally protected, but the firearms the gun-banning crowd has been focused on for a decade ("assault weapons") would be, including the full-automatic versions.

I believe that is why federal courts and the supreme court havn't touched the 1934 NFA (or just about any gun issue) with a 20 foot pole in the past 70 years. Any such argument that 2nd Amendment is a "militia thing" (their most commonly used argument) could backfire drastically for the anti-gun side.

I predict that Parker will not be appealed by the District of Columbia to SCOTUS. The risk to the anti-gun stance is too great, because if they win they're simply back to the line of scrimmage fighting for every bit of banning they can get, but if they lose and Parker is upheld, they are effectively shut out of Congress and the Feds are out of the gun-control business.

Exactly. Every federal gun-control acts will sneak through congress and Bush certainly will not help things. Still Parker v DC is a huge victory.

 

[Che Guava]

Hmmmm.....so the 2nd is in something of litigation purgatory?

 

[.Shane.]

Any such argument that 2nd Amendment is a "militia thing" (their most commonly used argument) could backfire drastically for the anti-gun side.

There's a lot of truth to this statement. I don't think the history of legislation and jurisprudence is kind to the pro-gun 2nd amendment viewpoint.

 

[Bugfatty300]

Hmmmm.....so the 2nd is in something of litigation purgatory?

Thats a good way to put it. As far as the USSC is concerned.

But firearm owners, concealed carry permit holders and "gun culture" are increasing dramatically in the US. Not in "redneck country" but in traditionaly anti-gun urban and high developed areas.

Pretty soon it will be impossible for the federal (and many state governments) to create more firearm legistlation. The 1994 Brady Bill cost the democrats both the senate and house and lack of support led to its demise in 2004.

I personally think this is a very exiting time to be a firearm owner and 2nd amendment supporter in the US.

 

[.Shane.]

(1) What was the motivation behind introducing the Second Amendment?

Its pretty complicated... What people don't realize about the Bill or Rights as originally conceived is that they are not individual rights. They were rights that were set apart from federal regulation. So, for example, nothing would've stopped the state of Massachusetts from regulating speech in, say, 1800.

Now, this all changed w/ the introduction of the 14th Amendment and we then had the idea of collective vs. individual rights. The problem is that, so far, the 2nd Amendment has not legally been deemed to be an individual right.

(2) Is the U.S. Second amendment (the right to bear arms) outdated?

From the standpoint of being a militia, it was outdated in the early 1900s with the creation of a National Guard.

Legally, its not outdated, but as others have pointed it, its because no major tests have been sent to the SC for 70 years.

What would be the likely consequences of removing said amendment form the Bill of Rights?

Ironically, all the pro-NRA crowd who stomps their feet about their rights and the "rule of law" and respecting the Constitution would do a complete about-face if the SC found that the 2nd Amendment was a collective right.

One question I forgot: (4) If you do support the second amendment, do you do so to ensure the existance of militias, for personal protection of self and property, or both

I support the right of people to own guns for hunting and personal defense, which, ironically, is not the intent of the 2nd Amendment.

Mostly what I want protection from are the gun nuts who do everything they can to defeat practical safety measures.

 

[Bugfatty300]

Ironically, all the pro-NRA crowd who stomps their feet about their rights and the "rule of law" and respecting the Constitution would do a complete about-face if the SC found that the 2nd Amendment was a collective right.

Yes and the pro-brady nuts would do the same if the SC ruled that every tom dick and harry has a right to bare arms. But yes I would disagree with such a dicision Because the SC would be wrong in my opinion.

 

[.Shane.]

Yes and the pro-brady nuts would do the same if the SC ruled that every tom dick and harry has a right to bare arms.

The difference being I'd expect a significant # of pro-gun people to actually take up arms and something horrible. Whereas the pro-brady folks would simply have the permanent appearance of having sucked a lemon.

 

[IglooDame]

The difference being I'd expect a significant # of pro-gun people to actually take up arms and something horrible. Whereas the pro-brady folks would simply have the permanent appearance of having sucked a lemon.

If SCOTUS nulls out the Second Amendment via labelling it a collective right, it'll be ugly, no doubt about that. Cold dead hands and molon labe all over the damned place.

And when you think about what havoc one expert rifleman and his boy Friday did in DC a couple years back...

Say, you don't think that's another example of a guy with a rifle successfully taking on the US government, do you?

 

[Bugfatty300]

The difference being I'd expect a significant # of pro-gun people to actually take up arms and something horrible. Whereas the pro-brady folks would simply have the permanent appearance of having sucked a lemon.

Well so far we few tens of millions of gun nuts have sat quietly and did as we were told during every federal anti-gun legistlation passed in the past century. But there is definetly a limit.

Eitherway, I believe there would only be significant resistance if a eforcement agency enforced a gun ban and attempted to rob people of their property. If thats the case then I have no sympathy for the casaulties the government will suffer in their atempt.

 

[Che Guava]

given the reactions predicted in our last two posts, is arming the populace, through either militias or individual ownership, a slow-simmering recipe for another civil war down the road?

 

[skadistic]

given the reactions predicted in our last two posts, is arming the populace, through either militias or individual ownership, a slow-simmering recipe for another civil war down the road?

Only if the feds screw up really bad.

 

[Bugfatty300]

given the reactions predicted in our last two posts, is arming the populace, through either militias or individual ownership, a slow-simmering recipe for another civil war down the road?

Considering that owning guns alone will not cause a an uprising you should reword it to this: given the reactions predicted in our last two posts, is the government's action of taking away the people's right to bear arms, through either militias or individual ownership, a slow-simmering recipe for another anti-government uprising down the road?

Answer: Yes.
Government's only solution to preventing it: Don't do it.

 

[.Shane.]

Eitherway, I believe there would only be significant resistance if a eforcement agency enforced a gun ban and attempted to rob people of their property.

Except of course if its a legal ban, no one is being robbed. But, I expect that distinction to be lost on those who like to claim "rule of law" all the time.

given the reactions predicted in our last two posts, is arming the populace, through either militias or individual ownership, a slow-simmering recipe for another civil war down the road?

It wouldn't be a civil war so much as a bunch of acts of terrorism. IE, I doubt they would try to depose the govt, rather kill those who they "blamed" for their loss.

Considering that owning guns alone will not cause a an uprising you should reword it to this: given the reactions predicted in our last two posts, is the government's action of taking away the people's right to bear arms, through either militias or individual ownership, a slow-simmering recipe for another anti-government uprising down the road?

You're missing the point. "Taking away guns" may found to be quite legal. If so, will you respect your govt. and the "rule of law" or will you become a hypocrite at that point?

If people were smart, they'd respect the law and then try to get an amendment passed to properly identify the modern need for guns: hunting and personal self-defense. However, I don't put too much stock in the smarts of people, especially when as militant and irrational as the rabid pro-gun crowd.

 

[Che Guava]

Considering that owning guns alone will not cause a an uprising you should reword it to this: given the reactions predicted in our last two posts, is the government's action of taking away the people's right to bear arms, through either militias or individual ownership, a slow-simmering recipe for another anti-government uprising down the road?

Answer: Yes.
Government's only solution to preventing it: Don't do it.

Ooo! Caught by my own trick..!

But consider this: gun politics don't live in a vacuum; as a matter of convinience, it seems to be married to at very least a theme in american politics. Not every gun owner or gun advocate is of one particular political stripe, but you have to admit that the spectrum within the gun-owning community might not represent america as a whole.

Given that, does only, in practical terms at least, arming one side of a political debate or discours seem like a bad idea? Or is it up to everyone to arm themselves to ensure that the system works? (again, honest questions)