The Second Amendment and the "Right" to Bear Arms

[The Norseman]

No. What I am suggesting is that had they understood the possible future ramifications of Automatic Weapons and mass shootings, they may have put some limitations on the right to bear arms. The second Amendment was conceived in times when what can be done today was simply incomprehensible.

They comprehended the fact that newer, deadlier weapons would be invented; it's absurd to think otherwise.

At any rate, here's just a small snippet from the recent Heller decision (page eight):

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications... and the fourth Amendment applies to modern forms of search... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."​

 

[Cylinder]

So, a private person can own a Nuclear weapon.

Norm

No. I don't think you understand the question you asked though.

 

[The Norseman]

So, a private person can own a Nuclear weapon.

Norm

Read the portion that you snipped and it'll address this ridiculous notion you are now posting.

 

[newyorkguy]

In Heller and McDonald the Supreme Court interpreted the second amendment as conferring a general right to the citizen to have a gun. That local governments could not interfere with that right. Both decisions were 5-4.

On a Fox-News show Justice Antonin Scalia explained this to mean arms that could be hand-carried:

"Obviously the [Second] Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose there are hand-held rocket launchers that can bring down airplanes, that will have to be decided." Link

Scalia also said (you can watch the video in the link) his "starting point and ending point" in deciding such questions would be based on the "understood limitations that the society [18th century America] had at the time."

According to Antonin Scalia, that is.

 

[sadhatter]

Surrender to whom?

You know, the indian populace managed to throw off the yolk of a tyrant without any weapons at all.

The Indians didn't fight? News to me.

You honestly think if they presented no threat whatsoever, the government would have been just as willing to give them anything?

This is a big problem with the anti weapon crowd, they just ignore the positive impact of weapons, sorry but in the real world you can't stop every bad thing with a stern talking to. No matter how much you wish this to be.

 

[fromdownunder]

Read the portion that you snipped and it'll address this ridiculous notion you are now posting.

My question was "does the second amendment or subsequent SCOTUS decisions specifically preclude anyone from owning a Nuclear Weapon?"

The response was "No". If it was meant to be "yes" just say so.

Norm

 

[newyorkguy]

My question was "does the second amendment or subsequent SCOTUS decisions specifically preclude anyone from owning a Nuclear Weapon?"

...
Norm

I'll take a crack at it.

According to Justice Scalia, the second amendment right to bear arms means physically carry. Is it conceivable that a shoulder-mounted nuke could be developed?

In the 1950s the U.S. developed the M-29 Davy Crockett Weapon System which was a tactical nuclear gun (recoilless) for firing the M388 nuclear projectile. In the photos I've seen they're pretty big. But I guess it's within the realm of possibility that a shoulder-mounted nuke could be developed someday.

But selling them? Would that be legal? Wouldn't that violate the non-proliferation treaties we've signed?

 

[Newtons Bit]

So, a private person can own a Nuclear weapon.

Norm

Unless Congress wants to ban it, which they've done, obviously.

 

[fuelair]

Personally, I'm of the opinion that there shouldn't be a right to bear arms.

Why is arming oneself with a potentially deadly weapon considered something that all Americans have a right to do? I don't see it as anything like the right to freedom of speech or assembly, or religion, or anything outlined in the UN Declaration of Human Rights. Why in America - as far as I know alone in the developed world - is gun ownership considered a right?

Better Constitution, more faith in it's people, believing it's people should have the right to an immediate chance of protecting themselves and, as a side thing, the country - after seeing the shortcomings of other systems would be my wild, off-the-cuff suspicion

 

[newyorkguy]

Unless Congress wants to ban it, which they've done, obviously.

Have they? You might be right, I don't know. Is there a specific ban?

According to Vin Suprynowicz, an American libertarian author (Send in the Waco Killers), it is clear that American citizens DO have the right to possess nuclear weapons. Writing on his site Keep and Bear Arms, Suprynowicz answered this very question:

The American people, both individually and as a group, have the right, power and authority to own nuclear weapons. No other condition can apply, unless you submit that we now live under a form of government where all rights and powers start with the GOVERNMENT MASTERS, who then bestow upon us (their peasants and slaves) only those lesser and included rights which our masters wish US to have.

Link

Suprynowicz goes on to 'reason,' If the government "will not trust its own people with these weapons we need ask, 'Then why should we trust YOU with them?'"

He asks, how do the 'people' have an effective means to resist a potentially tyrannical government armed with nuclear weapons, unless the people themselves possess nuclear weapons?

Getting scared yet?

 

[fuelair]

I expected this response. What's wrong is that Americans, for some reason, believe that the right to bear arms is necessary to uphold articles 3 and 17 of the UNDHR, whereas people from no other developed nation do.

Living in Australia, with no right to bear arms, I do not find my right to life, liberty or security infringed. These rights are upheld by my country's military and law enforcement, and I reap the benefit of that without being required to bear arms myself. And that works for me.

What is it about America that they feel they should consider gun possession a right when no other developed nation does?

(Note that I am specifically referring to developed nations - what is usually and erroneously called the first world. Developing nations have their own problems which I do not wish to directly address here.)

You are seriously arguing that if a burglar/home invader bursts/sneaks into your home planning to shoot, stab or cosh you that the police or a spare army unit will be popping in to save you? I know that does not happen in the US and I am pretty sure it doesn't happen in Australia, England, Canada, etc.

I do not like situations where I am denied the right to (fairly likely) superiority of weapon over an invader (why I have learned how to make and use things that do not look like weapons but are very nice ones for places I can't carry the best stuff) and the right to keep and use same and, thus, the right to life. And, I would rather the intruder(s) not survive while I do instead of being captured, maybe tried, not even executed, just jailed a few years if they kill me. I want whoever manages to kill me to die in as terrible a way as possible - worse if they harm a child, my wife, any of my friends.........

 

[fuelair]

I think that one of the issues that we non Americans do not understand is that "arms" at the time of the Second Amendment are a tad different than the "arms" available today.

Would the people who passed the amendment even have conceived a gun that could shoot 100 rounds in under a minute, or a pony nuke in a briefcase, or a tank? Does the right to bear arms include a nuclear missile, and if not, why not? The Second amendment does not prevent a private person from owning Nuclear Missiles.

The whole thing to me, is not the right to bear "arms", it is simply that the "arms" presently available are so far in excess in what was possible way back then, that had those people conceived what would be available in 2013, perhaps they may have put at least some limitations on what Joe Public should have a right to own.

Yes, I understand that the Supreme Court has made rulings from time to time over the limitations of the Second Amendment, but I really do not think that semi-assault rifles were ever in the mind of the persons who originally decided that the right to bear arms should include such beasts.

Norm

You might want to think that through - if they knew about those arms but without a wide knowledge of the other weapons of war I suspect they would want them in no time at all - as the US would, with those AR-15's/M16's alone have been able to assault and leave running home to mommy any other army/navy/ civilian defense in the world tout suite. By the by, I actually prefer semi-auto to auto as it is better to be able to hit 30 targets with 30 shots than to hit one or two with 30 shots. (actually 31 as I rack the top one in the mag and then top it off - do that with the auto-pistols also. Can't figure out a way to do it with the revolvers, but nothing is perfect!!!

 

[newyorkguy]

You are seriously arguing that if a burglar/home invader bursts/sneaks into your home planning to shoot, stab or cosh you...

...I am denied the right to (fairly likely) superiority of weapon over an invader... I would rather the intruder(s) not survive while I do...

I see this scenario presented over and over like this is an everyday occurrence here in the U.S. Yet I know that realistically the chances of this happening are extremely remote.

I have no problem with someone who wants a gun in the house for protection. I do have a problem with people who seem to give these violent scenarios an inordinate amount of thought.

 

[gumboot]

It's sad for me that the issue is so easily devolved through propaganda. It's a pretty recent development that our mother country reorganized their firearm laws. Britain had the same gun culture that the US had but went in a different direction.

British law allowed for the keeping of arms for defense, but this was a limited right, secondary to restrictions. As it says in the Bill of Rights 1689; "...the Subjects which are Protestants may have Arms for their Defence, suitable to their Condition, and as allowed by Law..."

It was, for example, illegal in most cities of Europe to carry arms, unless you had been granted that specific privilege by the city. This cultural tradition dates back at least as far as Ancient Rome, where it was illegal to be under arms (initially just within the city itself, and later south of the River Rubicon). Likewise, outside cities, the local authority (i.e. a lord) could limit your right to carry arms within their territory.

The modern ceremony of receiving the "key to the city" is the remnant of this tradition. (For some reason arms became keys, both in this tradition and the tradition of receiving a "key" on your 21st Birthday).

 

[fromdownunder]

You might want to think that through - if they knew about those arms but without a wide knowledge of the other weapons of war I suspect they would want them in no time at all - as the US would, with those AR-15's/M16's alone have been able to assault and leave running home to mommy any other army/navy/ civilian defense in the world tout suite.

So, are you saying that every mom at home should have an AR-15/M16 so that the daddies can go off and play war somewhere else?

Sorry, I am genuinely not sure what you mean here.

Norm?

 

[Newtons Bit]

Have they? You might be right, I don't know. Is there a specific ban?

Yes, the Atomic Energy Act of 1946 (since amended) first banned private possession of fissile material.

According to Vin Suprynowicz...

Who? (that's rhetorical)

 

[BStrong]

Have they? You might be right, I don't know. Is there a specific ban?

According to Vin Suprynowicz, an American libertarian author (Send in the Waco Killers), it is clear that American citizens DO have the right to possess nuclear weapons. Writing on his site Keep and Bear Arms, Suprynowicz answered this very question:

Link

Suprynowicz goes on to 'reason,' If the government "will not trust its own people with these weapons we need ask, 'Then why should we trust YOU with them?'"

He asks, how do the 'people' have an effective means to resist a potentially tyrannical government armed with nuclear weapons, unless the people themselves possess nuclear weapons?

Getting scared yet?

For a better grounded view of this question:

http://www.constitution.org/2ll/2ndschol/70embar.pdf

The Embarrassing Second Amendment by Sanford Levinson.

Levinson is a supporter of stricter gun control, but this is his conclusion wrt the primary SCOTUS case involving the 2nd Amendment, U.S. v Miller

"Returning, though, to the question of Congress' power to regulate the keeping and bearing of arms, one notes that there is, basically, only one modern case that discusses the issue, United States v. Miller,82 decided in 1939. Jack Miller was charged with moving a sawed-off shotgun in
interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller and a compatriot had not registered the firearm, as required by the Act. The court below had dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment."

And further:

"...Interestingly enough, he emphasized that there was no evidence showing that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia."84 And "[c]ertainly 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."85 Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use."

The defendants were not represented before the court, and no evidence was presented to the court of the very common use of short barreled shotguns in military and LE use - the blunderbuss was used in the revolutionary war, and shotguns w/ barrels under the federal minimum length of 18" were sold over the counter prior to the national Firearms Act of 1934, the law Layton and Miller were charged with violating.

Levinson's summary:

"It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, Miller can be read to support (pg.655) some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket
launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings."

Aside from strawman arguments based on nukes or other WMD, the "arms" mentioned in the 2nd break down to the common individual weapons used and issued in the military - the M9 pistol and other semi-auto pistols issued by the different branches, the M16 platform rifle, the M249 SAW, the M79 and M203 launchers, precision rifles up to the .50 BMG, both bolt action and semi-auto, the various pump and semi-auto 12 gauge shotguns and various SMG's and MP's.

The crew served class of weapons would most likely fall outside that category, and CBNR weapons certainly don't even have a legitimate place in the discussion.

I don't find Suprynowicz's assertions to be convincing or based in reality, and he could well be exercising his right to spout nonsense in public.

As I noted farther up thread, CBNR weapons are not suitable for individual defense, nor have they ever been in lawful civilian commerce as machine guns and other NFA weapons and devices were before 1934.

 

[Giz]

It was, for example, illegal in most cities of Europe to carry arms, unless you had been granted that specific privilege by the city. This cultural tradition dates back at least as far as Ancient Rome, where it was illegal to be under arms (initially just within the city itself, and later south of the River Rubicon). Likewise, outside cities, the local authority (i.e. a lord) could limit your right to carry arms within their territory.

.

It was my understanding that in the 17th and 18th centuries it was common for gentlemen to wear swords.

 

[sadhatter]

I'll take a crack at it.

According to Justice Scalia, the second amendment right to bear arms means physically carry. Is it conceivable that a shoulder-mounted nuke could be developed?

In the 1950s the U.S. developed the M-29 Davy Crockett Weapon System which was a tactical nuclear gun (recoilless) for firing the M388 nuclear projectile. In the photos I've seen they're pretty big. But I guess it's within the realm of possibility that a shoulder-mounted nuke could be developed someday.

But selling them? Would that be legal? Wouldn't that violate the non-proliferation treaties we've signed?

Do you not feel that when you have to bring in nukes to make a point, that maybe you are really straining to make a point? I mean come on, seriously, this would be like debating the health merits of pastry and using the lethal eclair from the Simpsons to try and prove a point.

why not keep this in the realm of reality? Not the fallout universe.

 

[Jrrarglblarg]

Can't figure out a way to do it with the revolvers, but nothing is perfect!!!

The equivalent is putting 6 rounds in a six shooter instead of 5. Many of the early single-actions were dangerous with the hammer down on a live round, so the revolver was carried with the hammer down on an empty spot in the cylinder. Putting the hammer into "half-cocked" position pulls the firing pin away from the bullet, making it safe to carry the pistols with that feature fully loaded but puts the user in danger of "going off half-cocked," meaning that when you pull the trigger nothing happens and you have to correct before proceeding. Could be fatal.

As for citizens with nukes, I'm not personally a signatory to any nuclear treaty. As N.Korea has demonstrated, it is possible to build a nuke with little or no outside help or permission. Pretty expensive, though. I'll probably start my WMD program with germs.