Gun laws: Is this consitutional?

[cwalner]

Nah, a little thing called state rights. Besides why should New Jersey or New York, have the same rules as Utah or Nevada. There is not a lot in common

I tend to slightly disagree. I support, in most commerce related issues, the federal government to impose a minimum level of regulations, leaving the states the right to further regulate if appropriate.

With respect to guns, for me the ideal would be something along the lines of federal minimum regulations requiring background checks and waiting periods to purchase guns, with possible restrictions on heavy arms. States like Utah, would be free to impose no additional regulations, but more urban states, like NY and NJ would be free to regulate further up to, and including citywide bans, and bans on specific weapon types, if the local populations feel such are prudent and necessary.

Blindly going to the 2nd amendment is not supporting states rights. It actually restricts states rights by preventing states that want stricter gun control laws from passing them.

 

[KingMerv00]

Why only mention slander? Fraud, extortion, blackmail, are all also exercises of “Free Speech”. If you truly believe in absolute freedom of speech, without any restriction at all, then you have to believe that I have the right to say to you, “Give me all your money, or else I'll kill you.”

I have to think that the “Your right to swing your fist ends where my nose begins” principle applies here. Any right may need to be suppressed, to some extent, when the exercise of that right becomes a violation of someone else's right. You have a right not to be robbed, so my right to threaten to harm you if you don't give me your money has to be sacrificed in this case.


Even so, I think that in the case of slander and libel, the standard, which I think is generally accepted, and which seems reasonable to me, is that government may not exercise “prior restraint”.

I could publicly accuse you—with no valid basis for doing so—of raping young children, kicking puppies, voting Democratic, or whatever, and nobody can stop me. But if, by doing so, I unjustly cause you harm, then you can sue me for slander/libel. This isn't a denial of my right to free speech, but a way that I can be held accountable for the consequences of abusing this right.


You do not have any right that is violated if I happen to own—or even carry in your presence—a firearm. If I am standing next to you with a gun strapped to my hip, this does not cause you any harm, nor violate any of your rights.

Really? And where does it say that in the Constitution?

Well? You just suggested that it is OK to read things into the Constitution because it lacks detail at times. You decried that earlier in the thread. Care to comment on your lack of consistency?

 

[Skeptic]

I think what you seemignly fail to grasp, however, is that the same changes in our society that allow the feds to regulate according to the letter of the commerce clause also make it more practical and appropriate that such items be regulated at a federal, rather than state level.

You have an interesting point, and yes, perhaps it does -- at least in certain cases. But I didn't say it was good or bad; I just noted how the world changing beyond recognition changed the nature of the commerce clause and the nature of states/federal relationship in favor of the federal government.

This is the sort of change that is certainly not all bad. But it is hardly all good, either.

 

[applecorped]

Because I can't shoot you with a joint, and I can't smoke my gun.

But you can smoke with your gun. (Platoon).

 

[Freddy]

never mind, I missed the reference.

 

[Ranb]

Well, IIRC, WA is fairly eco-friendly. Try getting them to allow silencers to reduce noise pollution.

They are more anti-gun than pro-environment. Mere possession of certain legal (at the federal level) firearms by otherwise law abiding residents is a felony in Washington State. Never forget that a policitian's real job is to stay in office. From what I have seen, everything else is secondary.

I am using the strategy that silencers in Washington are harmless and should be treated that way as the legally owned ones have never been used in violent crime here.

Ranb

 

[Ranb]

Congress can regulate guns under the commerce clause so long as the regulation does not unduly burden gun ownership by law abiding citizens.

Would you consider de facto bans on personal ownership of guns to be an "unduly burden"? What about a tax on firearms that is ten times what they are worth? That sounds like a bit of a burden. This is what the National Firearms Act does. The Hughes amendment banned civilian owership of machine guns made after May 19, 1986. Where do you draw the line on a burden?

Ranb

 

[Ranb]

Are you actually holding that this law would pass muster?

No it will not. The ATF has already warned FFL's that the NFA of 1934 trumps state law. Some one will eventually be arrested for possession of an unregistered title 2 firearm and will be tried in federal court. I do not think the judge, jury or prosecutor will be impressed with any state law that says it is legal to own an unregistered firearm like a short barreled shotgun.

Too bad. I would like to see the NFA repealed or at least gutted like Congress has done to the 2nd amendment.

Ranb

 

[Freddy]

Would you consider de facto bans on personal ownership of guns to be an "unduly burden"? What about a tax on firearms that is ten times what they are worth? That sounds like a bit of a burden. This is what the National Firearms Act does. The Hughes amendment banned civilian owership of machine guns made after May 19, 1986. Where do you draw the line on a burden?

Ranb

That's a very good question. In fact, it's the question. I wish I had a black and white answer, but as with most balancing tests that isn't really possible. I would say that a ban on fully automatic weapons does not unduly burden the right to bear arms for those purposes which the second amendment exists to protect (according to DC v. Heller), namely personal protection and hunting. A ban on all handguns, even in the home, would not pass muster under an undue burden test (see DC v. Heller). Prohibitory taxes on guns and refusal to issue firearm permits would probably be unconstitutional under such a test, while requirements to register and bans on automatic weapons would probably be okay.

Of course, the second amendment does not apply to the states right now. I'm assuming that when the Mcdonald v. Chicago decision comes down this fall the Supreme Court will incorporate the second amendment. Having read the oral argument transcript from that case, that result seems pretty certain.

 

[Bob Blaylock]

Why only mention slander? Fraud, extortion, blackmail, are all also exercises of “Free Speech”. If you truly believe in absolute freedom of speech, without any restriction at all, then you have to believe that I have the right to say to you, “Give me all your money, or else I'll kill you.”

I have to think that the “Your right to swing your fist ends where my nose begins” principle applies here. Any right may need to be suppressed, to some extent, when the exercise of that right becomes a violation of someone else's right. You have a right not to be robbed, so my right to threaten to harm you if you don't give me your money has to be sacrificed in this case.


Even so, I think that in the case of slander and libel, the standard, which I think is generally accepted, and which seems reasonable to me, is that government may not exercise “prior restraint”.

I could publicly accuse you—with no valid basis for doing so—of raping young children, kicking puppies, voting Democratic, or whatever, and nobody can stop me. But if, by doing so, I unjustly cause you harm, then you can sue me for slander/libel. This isn't a denial of my right to free speech, but a way that I can be held accountable for the consequences of abusing this right.


You do not have any right that is violated if I happen to own—or even carry in your presence—a firearm. If I am standing next to you with a gun strapped to my hip, this does not cause you any harm, nor violate any of your rights.

Well? You just suggested that it is OK to read things into the Constitution because it lacks detail at times. You decried that earlier in the thread. Care to comment on your lack of consistency?

I think it's not so much, in my instance, a case of “read[ing] things into the Constitution because it lacks detail”, as applying basic common sense in recognizing that some times, the practice of one right by one person may violate another right of another person, and that it is necessary, at times, to limit one right in order to protect another. I see the rights outlined in the Bill of Rights as being absolute, only to the degree that they aren't exercised to the point where they clearly violate other rights.

Slander, extortion, fraud, etc., are exercises of free speech which violate other rights of other people, and which are intended to do so. You very clearly have a right not to be robbed; and your right not to be robbed, in this case, I think clearly overrides my right to exercise free speech by saying “Give me all your money, or else I'll kill you.” It's a bad thing that my right to free speech must be curtailed in that case, but it'd be an even worse thing to allow me to use my right to free speech to take what is rightfully yours by the use of threats of violence and murder.


I do not see any similar principle that applies well enough to ordinary weapons, to supersede the Second Amendment's affirmation of my right to own and carry a gun. Even the worst hoplophobe is not going to suffer any actual harm, if I happen to be standing next to him with a loaded gun strapped to my hip; therefore, no similar basis exists to deny me this right as exists to deny me some extreme forms of free speech.

 

[Bob Blaylock]

No it will not. The ATF has already warned FFL's that the NFA of 1934 trumps state law. Some one will eventually be arrested for possession of an unregistered title 2 firearm and will be tried in federal court. I do not think the judge, jury or prosecutor will be impressed with any state law that says it is legal to own an unregistered firearm like a short barreled shotgun.

Too bad. I would like to see the NFA repealed or at least gutted like Congress has done to the 2nd amendment.

It would certainly make for an interesting case if it reached the Supreme Court.

The ruling which upheld the NFA, United States. vs. Miller, can certainly be taken as slanted in one direction, as there was nobody present to argue for Miller's side; even so, one precedent set in that ruling, which has subsequently been ignored, has been that the Second Amendment protects the right to own weapons that are suitable for military use. Miller's conviction for possessing and transporting in interstate commerce (It's also useful to note that he wasn't deemed to have committed a crime until he transported the weapon across state lines—a precedent which would certainly point toward upholding Montana's and Arizona's laws concerning weapons made and kept within those states.) was upheld only on the basis that “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.” By this principle, then, the Second Amendment has to be construed as protecting the right to own and bear weapons comparable to what a modern soldier would have, which would include most of those weapons currently covered by the NFA.

 

[The Central Scrutinizer]

...at least gutted like Congress has done to the 2nd amendment.

Congress has done no such thing.

 

[Ranb]

Congress has done no such thing.

Then what do you call gun bans and heavy taxes? They certainly are an infringement of the individual right protected by the second amendment.

Ranb

 

[ponderingturtle]

Then what do you call gun bans and heavy taxes? They certainly are an infringement of the individual right protected by the second amendment.

Ranb

Putting an undue burden on domestic terrorism. Domestic terrorism is after all one of the fundamental reasons we have a second amendment. All that stuff about armed revolt it seems to play well to those who support these state laws.

 

[The Central Scrutinizer]

Then what do you call gun bans and heavy taxes? They certainly are an infringement of the individual right protected by the second amendment.

Ranb

As part of a well regulated militia. Why do the guntards keep leaving that part out?

 

[Ranb]

Putting an undue burden on domestic terrorism. Domestic terrorism is after all one of the fundamental reasons we have a second amendment.

Can you name one domestic terrorist who used a legally owned title 2 weapon to commit a violent act? I am not complaining about the registration, just the ban and heavy taxes.

Ranb

 

[ponderingturtle]

Can you name one domestic terrorist who used a legally owned title 2 weapon to commit a violent act? I am not complaining about the registration, just the ban and heavy taxes.

Ranb

I am not saying that they have been used as such, which is kind of a point against loosening those laws. But the arguments used to support those are how will we engage in domestic terrorism with out these guns.

Just about everyone is for laws on weapons, it is where you draw the lines that differentiate people.

 

[Ranb]

Terrorists do not obey the law. They can convert any semi-auto they wish into a machine gun. I can not. These laws are not stopping any terrorists. Do you have any evidence to show that a terrorist was caught because they were trying to obtain a title 2 weapon legally from a dealer?

The Hughes amendment (banning new registration of machine guns) was not added to prevent terrorism; it was to block a law abiding owner’s access to new machine guns. Local sheriffs are allowed to deny a signature on registration forms for any reason. This is not an anti-terrorism measure.

Ranb

 

[ponderingturtle]

Terrorists do not obey the law. They can convert any semi-auto they wish into a machine gun. I can not. These laws are not stopping any terrorists. Do you have any evidence to show that a terrorist was caught because they were trying to obtain a title 2 weapon legally from a dealer?

You seem to be acting intentionally not getting the point. The proponents of these state laws state that they want them in place to make violent revolution(ie terrorism) easier.

The Hughes amendment (banning new registration of machine guns) was not added to prevent terrorism; it was to block a law abiding owner’s access to new machine guns. Local sheriffs are allowed to deny a signature on registration forms for any reason. This is not an anti-terrorism measure.

Ranb

So those guys in Michigan who wanted to kill the police officer then attack his funeral, if they could have gotten legal machine guns you argue that they would not have? And I mean machine guns not full auto conversions of assault rifles.

 

[Freddy]

As part of a well regulated militia. Why do the guntards keep leaving that part out?

They leave it out because the Supreme Court has said that the second amendment protects an individual right, and that this right is not conditional on membership in an organized militia.