Right to bear ammunition

[Tormac]

I suppose this question is directed to the OP, but is open for anyone with an opinion. I hope this does not sound like a naïve question, but I’m curious what problem the solution of punitive regulations or taxes on ammunition is likely to solve.

Is this an attempt to band a certain type of “cop killer” style ammunition? Is my cache of 1000 rounds of .22 ammunition a threat to society and people should only be allowed to own 20 rounds at one time? Or is this an attempt to make an end run around the 2nd amendment and make it prohibitively expensive for citizens to legally shoot?

Most of the proposals like this that I have read feel like a version of the end run around the 2nd amendment, which always made me wonder why the people that propose these things don’t think that Drug lords, Mobsters, and the like won’t just start reloading ammunition and selling it on the street. These plans, if they did what I think they are proposed to do, always seemed to me to just be a quick way to start a new profitable black market business for crime.

But maybe I just don't understand the problem that they are meant to solve?

 

[JoeTheJuggler]

Uhh, the restriction of the chem, bio, nucs is that they are area weapons, not direct targeted weapons. Too much collateral damage, so restricted from use by Joe Civilian.

I understand that--and that is the very issue of public safety that outweighs the 2nd Amendment right to keep and bear arms that I was speaking of. [ETA: The 2nd Amendment doesn't say it's limited to "direct targeted weapons" and not "area weapons". And FWIW, direct targeted weapons that are chemical, biological and nuclear are certainly possible.]

Anyhow, onerous restrictions on ammo would be considered an 'infringement' on arms.

So are prohibitions against private ownership of chemical, biological and nuclear arms. The important question is whether or not that infringement is justified (that is, whether the public safety concern outweighs the individual right--which, as the Supreme Court has noted, is not an unlimited right).

And the SCOTUS has found that even the EPA can't restrict ammo in the name of public safety, that ammo is the exclusive realm of a different federal agency, by federal law.

I would agree that the EPA shouldn't have that authority. The authority to legislate is vested in Congress (with checks and balances among the other branches). I don't think the Executive branch should have that authority. Especially in matters that weigh public safety against individual rights, such matters should go through the legislative process. The executive should carry out enforcement of the laws, not create new law.

 

[JoeTheJuggler]

Most of the proposals like this that I have read feel like a version of the end run around the 2nd amendment,

And if that's their intent, they are sadly confused about 2nd Amendment jurisprudence. For about the 4th time I say, there is no way the individual right to keep and bear arms established by the 2nd Amendment applies to guns but not to ammo. That right is not unlimited, however, and may be weighed against legitimate state interests (usually public safety).

It is the same with the 1st Amendment right to free speech.

ETA: The notion that a gun, but not ammo, falls under the category "arms" makes me think of a funny observation about the old Superman TV show I heard not so long ago. A typical ending scene had the bad guys shooting bullets that ricocheted harmlessly off the Man-of-Steel's chest. Once they emptied their guns, the bad guys invariably threw their guns at Superman out of frustration. Curiously, Superman always ducked the thrown guns. Apparently to him, gun was in fact more of an "arm" than the bullets fired out of the guns! It's one thing to deflect bullets, but you could really get hurt by a thrown gun!

 

[Drudgewire]

But you failed to address my question. Best I can tell, this thread is about the Constitutional arguments surrounding gun (and ammo) regulation.

As I've pointed out, since the 2nd Amendment right is not unlimited, we can (and ought) weigh it against issues of public safety.

It sounds like you're arguing that the risk of people being shot through walls doesn't outweigh the individual right. That might be so (and it might be that people are seldom shot through walls--I dunno). But none of the stuff about training addresses the question.

You're operating on the assumption public safety is only served by gun control. That's the whole crux of the gun argument, and it's not a given. Gun owners believe the public is safer if we have the same access to guns that criminals who don't care about following the law do.

For every argument on the debate there's a counterpoint, this is one of them. It's not the same as a trump card.

 

[Tormac]

And if that's their intent, they are sadly confused about 2nd Amendment jurisprudence. For about the 4th time I say, there is no way the individual right to keep and bear arms established by the 2nd Amendment applies to guns but not to ammo. That right is not unlimited, however, and may be weighed against legitimate state interests (usually public safety).

It is the same with the 1st Amendment right to free speech.

ETA: The notion that a gun, but not ammo, falls under the category "arms" makes me think of a funny observation about the old Superman TV show I heard not so long ago. A typical ending scene had the bad guys shooting bullets that ricocheted harmlessly off the Man-of-Steel's chest. Once they emptied their guns, the bad guys invariably threw their guns at Superman out of frustration. Curiously, Superman always ducked the thrown guns. Apparently to him, gun was in fact more of an "arm" than the bullets fired out of the guns! It's one thing to deflect bullets, but you could really get hurt by a thrown gun!

Lol, I never noticed how silly that was as a kid, but I think I can remember that in the old black and white TV version of Superman.

 

[Drudgewire]

True story, guns used to be made out of Krytonite. You just can't see them glowing green because the show was in black and white.

 

[JoeTheJuggler]

True story, guns used to be made out of Krytonite. You just can't see them glowing green because the show was in black and white.

That explains it! (But why was Superman so often smiling?)

Meanwhile, back to the (imo wrong) notion that the 2nd Amendment right to keep and bear arms establishes an individual right to own guns but not ammo:

Part of what the court struck down in D.C. v. Heller was a requirement to keep handguns disassembled. The court said you can't do that because that makes the gun ineffective for self defense (part of what it figures is the purpose of the 2nd Amendment). Surely the same is true of ammunition.

So again, trying to regulate ammunition doesn't give you a free pass on the 2nd Amendment right. The issue is the same as with gun (or any other type of arms) regulations: whether the individual right is outweighed by a public safety concern.

 

[JoeTheJuggler]

You're operating on the assumption public safety is only served by gun control.

I'm doing no such thing. In fact I have several times pointed out that that is the exact reason why the First Amendment doesn't protect all speech acts. In case you missed my Oliver Wendell Holmes allusion, this spells it out.

By contrast, laws that would limit First Amendment rights that lack a legitimate state interest (or at least one that outweighs the right in question) are unconstitutional. For example, laws that would attempt to enforce respect for our national anthem, the U.S. Flag, or even military medals have been struck down as violations of the First Amendment.

The Heller decision finally resolved the issue of whether or not the 2nd Amendment establishes an individual right, but it also made it very clear that the right is not unlimited (same as with the First Amendment).

ETA: I'm basically only explaining what the constitutional issue is, and why the OP is mistaken (that regulating ammo somehow avoids the 2nd Amendment altogether). I'm not really arguing here on whether any particular proposal restricting guns or ammo satisfies the constitutionality test. I've noted that a couple such proposals mentioned here are plausible (at least insofar as they are making the correct argument), depending on what the facts wrt public safety are. (For example, I have no idea if cheap ammo mhaze mentioned really is involved in significant instances of people being shot through walls, and whether a restriction on that ammo meets the test I've explained several times. But arguing that it is is the appropriate way to argue for such a restriction.)

 

[Drudgewire]

I guess we're just going to go around and around here. As far as case law goes, the closest thing I can think of that's truly relevant would be when the family of a subway shooter victim tried to sue the black talon manufacturer. The court basically ruled (and the appeals court agreed) that the whole point of bullets is for them to be dangerous.

http://www.casebriefs.com/blog/law/...-for-defective-products/mccarthy-v-olin-corp/

FTR, even if the Aurora shooter had just fired at the ceiling he'd still be under arrest because you can't fire a gun in a crowded theater. For an apples to apples comparison to the Holmes decision, saying the word "fire" anywhere would have to be considered a threat to public safety.

 

[Noztradamus]

Except again, FMJ being cheap is what makes it such good target ammo... and making firearm training cost-prohibitive in a gun culture is the most counterproductive idea ever.

I think Lord Bloomberg's proposal that police should go on strike to demand gun control has it beat.
Although gun sales would drop between the time the gunstores sold out and the gun manufacturers increased production.

 

[JoeTheJuggler]

I guess we're just going to go around and around here.

What does that mean? Do you disagree that I have correctly stated the constitutional issues? I assure you I have.

As far as case law goes, the closest thing I can think of that's truly relevant would be when the family of a subway shooter victim tried to sue the black talon manufacturer. The court basically ruled (and the appeals court agreed) that the whole point of bullets is for them to be dangerous.

I don't see how an earlier lower court decision can have more relevance than Heller. In fact, the case you cite raises no constitutional issue whatsoever. It's a tort case dealing with negligence and/or strict liability.

At any rate, nothing in the case you cite contradicts what I've said.

For an apples to apples comparison to the Holmes decision, saying the word "fire" anywhere would have to be considered a threat to public safety.

You aren't understanding the legal issues here at all. The individual right may be limited if a public safety concern outweighs it.

[ETA: As often seems to happen lately, you seem to think I'm making an analogy. I'm not. I'm pointing to a legal principle. It is the same legal principle applied to the 2nd Amendment that applies to the 1st Amendment.]

The individual right that the 2nd Amendment establishes is not unlimited.

 

[BenBurch]

If it were unlimited, we couldn't legally keep felons or those known to be insane from possessing weapons.

 

[JoeTheJuggler]

If it were unlimited, we couldn't legally keep felons or those known to be insane from possessing weapons.

Yep. Or, as I've repeatedly pointed out, keep any individual from owning chemical, biological or nuclear arms.

From the Heller holdings:

"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. . . ."

 

[Drudgewire]

You aren't understanding the legal issues here at all. The individual right may be limited if a public safety concern outweighs it.

The individual right that the 2nd Amendment establishes is not unlimited.

I'm understanding what you're saying, I just think it's difficult if not impossible to make the leap from "if" to "does." Proving public safety outweighs the right to own ammunion takes a whole lot more than "bullets go through walls."

I do remember a Law and Order episode where Eames said potential rape victims are better off yelling "fire" than "rape" because people will come running quicker. So in that respect the Holmes parellel works. Yelling fire can have a positive effect on protecting the public outside of crowded theaters.

 

[JoeTheJuggler]

I'm understanding what you're saying, I just think it's difficult if not impossible to make the leap from "if" to "does." Proving public safety outweighs the right to own ammunion takes a whole lot more than "bullets go through walls."

I agree. [ETA: But it's certainly not impossible. It's been done.] The state would need to provide evidence of its case for such a law to pass a constitutional challenge. And the burden would indeed be on them to prove that the public safety concern outweighs the individual right. (Just as in the other such cases I mentioned involving laws about the Flag, the national anthem, and military honors.)

At any rate, that is the test.

You might stave off attempts to prohibit ammunition by invoking U.S. v. Miller (a precedent that really logically led right into Heller) which said that the 2nd Amendment right isn't limited to arms associated with a militia but to any arms in common lawful use. If the ammo in question is the most commonly used in training, clearly the 2nd Amendment would apply.

However I would respond again by saying that even though I agree that the 2nd Amendment applies, the argument can still be made (depending on evidence) that the individual right is outweighed by a public safety concern.

And back to my original point in response to the OP, there's no reason to think ammo prohibitions would not invoke the 2nd Amendment. (See again the Heller reasoning in rejecting the requirement that handguns be kept disassembled.)

 

[sarge]

I'm understanding what you're saying, I just think it's difficult if not impossible to make the leap from "if" to "does." Proving public safety outweighs the right to own ammunion takes a whole lot more than "bullets go through walls."

I do remember a Law and Order episode where Eames said potential rape victims are better off yelling "fire" than "rape" because people will come running quicker. So in that respect the Holmes parellel works. Yelling fire can have a positive effect on protecting the public outside of crowded theaters.

I believe he has already posted that he is not arguing whether or not any specific proposal would pass constitutional muster. I believe he is (correctly, in my opinion) arguing only the tests that would be applied to any law that limits the purchase or possession of ammunition. Without presuming to put words in his mouth, I think he is saying that ammo is protected by the constitution in the same manner and to the same degree as guns themselves. in other words, ammo can not be prohibited, but it can be regulated so long as legitimate public safety concerns outweigh the individual right to own or carry any particular ammo in any certain quantity.

 

[JoeTheJuggler]

Another example of laws that limit free speech rights but have passed constitutional challenges are laws against incitement to commit unlawful acts (especially incitement to violence). The courts have allowed them to stand, but have defined a very narrow test for when that particular exception to the First Amendment may be invoked. (The Brandenburg test. Not only must the speech act be intended to incite unlawful acts, it must also be likely that the speech act would incite unlawful acts. In the Brandenburg case itself, a Klansman calling for violent "revengeance" against the minorities it hates did not meet that standard.)

 

[Drudgewire]

I believe he has already posted that he is not arguing whether or not any specific proposal would pass constitutional muster. I believe he is (correctly, in my opinion) arguing only the tests that would be applied to any law that limits the purchase or possession of ammunition. Without presuming to put words in his mouth, I think he is saying that ammo is protected by the constitution in the same manner and to the same degree as guns themselves. in other words, ammo can not be prohibited, but it can be regulated so long as legitimate public safety concerns outweigh the individual right to own or carry any particular ammo in any certain quantity.

I don't disagree with any of that. My point is you can't suddenly create a line where that weight is determined out of thin air.

 

[JoeTheJuggler]

I believe he has already posted that he is not arguing whether or not any specific proposal would pass constitutional muster. I believe he is (correctly, in my opinion) arguing only the tests that would be applied to any law that limits the purchase or possession of ammunition. Without presuming to put words in his mouth, I think he is saying that ammo is protected by the constitution in the same manner and to the same degree as guns themselves. in other words, ammo can not be prohibited, but it can be regulated so long as legitimate public safety concerns outweigh the individual right to own or carry any particular ammo in any certain quantity.

That's about right. I'd just word that last bit slightly differently. I wouldn't make the blanket statement that no types of ammo can be prohibited (or prohibitively taxed). I would argue that it possibly could if the government successfully makes the case that a legitimate state interest (public safety) outweighs the individual right.

I agree with Drugewire that that's a big "if", and note further that the burden is on the government, as it should be, any time we talk about limiting rights laid out in the Bill of Rights.

 

[JoeTheJuggler]

My point is you can't suddenly create a line where that weight is determined out of thin air.

I don't understand. The legislature and the judiciary create lines all the time. What do you mean by "that weight is determined out of thin air"?

In Holmes' hypothetical, we recognize a right to freedom of expression (even if that expression is mischievous or hateful or completely contrary to the sensibilities of the culture at large) but we see the legitimate public safety concern (an unnecessary panic in a crowded theater is likely to result in injury) as outweighing that right in these circumstances.

This isn't anything new. It is well established jurisprudence.

Why do you think it's OK for Congress to prohibit individual ownership of chemical, biological and nuclear arms?