jlf1961
Posts: 14840
Joined: 6/10/2008
From: Somewhere Texas
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Everyone has an opinion on gun control, and this board has its share of fanatics both pro can con.
On the pro gun control side of things, we have those claiming there is no call for a "mandatory confiscation of guns" even though both Hillary Clinton and President Obama has said that the Australian technique should be considered.
On the gun rights side, there a few that seem to advocate no gun regulations at all, at least according to the gun control crowd.
First the points of contention:
quote:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
It would seem those two parts seem to be the basis of the whole gun control argument. There are those that claim that the National Guard is the militia, except that the national guard can be nationalized and placed under federal control, which makes it a part of the federal military reserves, not a militia.
Second, militia members supply their own firearms, at least in the form accepted in the US at the time of the writing of the Constitution, which is based on English common law, which differs from the militia in Switzerland, thus negating that comparison.
Now, under Federal Law, states can establish "self defense forces" in which citizens of that state that have the legal right to own guns can belong to the militia that is under the control of the governor and cannot be called into service by the Federal Government.
Or the Governor can, under his authority, call for volunteers of every able bodied man and woman of legal age to form a paramilitary force in times of Natural Disaster or States of Emergency, which again, is based on English Common Law and has been the primary form used in the United States since its formation.
So, in light of the constitution and federal law, any mandated buy back of firearms would not stand court challenge. The US would have to get rid of the 2nd Amendment as well as a few federal statutes.
What kind of firearms can be privately owned.
There are a number of non NRA challenges in the works on this to be pushed to the supreme court, and all because of a couple of supreme court rulings.
United States v. Miller, 307 U.S. 174
Jack Miller and Frank Layton "did unlawfully ... transport in interstate commerce from ... Claremore ... Oklahoma to ... Siloam Springs ... Arkansas a certain firearm ... a double barrel ... shotgun having a barrel less than 18 inches in length ... at the time of so transporting said firearm in interstate commerce ... not having registered said firearm as required by Section 1132d of Title 26, United States Code ... and not having in their possession a stamp-affixed written order ... as provided by Section 1132C
In this case, the court ruled in favor of the United States, but stipulated the following:
quote:
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 any 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.
Justice McReynolds
This basically states that a sawed off shotgun did not have a specific military counterpart and therefore not protected under the 2nd Amendment.
Of course there are other statements that need to be looked at:
quote:
Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.
Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people"— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear Arms" in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as "the people"
Justice Antonin Scalia, writing for the majority in Heller
For the dissent
quote:
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court’s emphatic reliance on the claim "that the Second Amendment ... codified a pre-existing right," ante, at 19 [refers to page 19 of the opinion], is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right
Justice Stevens
quote:
District of Columbia v. Heller
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights 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.
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.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s 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. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
Now it must be noted that the court upheld the Assault Weapons Ban, and the power of the states to regulate that capacity of magazines for magazine fed weapons as not violating the second amendment.
However, there are legal ways to circumvent these restrictions, which entails a very in depth back ground check by the ATF, and these are NFA restricted weapons and accessories, i.e full automatic and suppressors.
The NFA also regulates minor items like cannon and artillery pieces, go figure.
Why present laws dont work:
Non NRA affiliated moderate gun rights groups and groups advocating gun control all agree one one key aspect of the present gun control laws and regulations, except in the case of NFA weapons.
First, when it comes to someone being mentally ill, and therefore not legally allowed to own a gun under current laws, there is a conditional clause in the regulations "adjudicated as being mentally or emotionally unstable."
Both sides of the issue have made several suggestions to fix this problem, however, congress in its collective wisdom has sat on their thumbs and stared at the ceiling.
The suggestion is simple, "legally requiring the psychiatric professional treating an individual to report any indication that the individual might be a danger to himself or others to law enforcement agencies, and that data being input into the database used in back ground checks.
Simple, would be effective except for point two:
Reporting of criminal records, charges filed and mental status and the entry of that data into the NCIC is purely voluntary on the parts of the state and local law enforcement agencies.
The same agencies that use the NCIC database for warrant and record checks over a million times a day do not have to input data into the database.
Which brings me to my argument, there is no way new laws that depend on NCIC for back ground checks is going to work. Now every state and local law enforcement agency has to input that data into the state datagbase, but that means that I could go across the state line, establish residence and buy a gun since the odds are everything preventing me from buying a gun in state A is not going to show up on a state B background check.
Now with all this being said.
Yes there are two prominent political figures advocating the elimination of the individual's right to keep guns, and no matter how much you wish to scream "no one wants to take your guns" you would be wrong.
Yes, there are gun owners who fully support fixing the problems with gun purchases in the US.
Yes, in reference to Obama and Clinton, they will have to eliminate the second amendment to do exactly what they say they want to do and some deny they are saying it.
This is the discussion that should be the center of gun control debates. How to fix the problem within the legal confines of the Constitution without a repeal of an amendment and the addition of a new one.
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Boy, it sure would be nice if we had some grenades, don't you think?
You cannot control who comes into your life, but you can control which airlock you throw them out of.
Paranoid Paramilitary Gun Loving Conspiracy Theorist AND EQUAL OPPORTUNI
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SCOTUS, Second Amendment and gun control laws. - 
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