Tuesday, January 10, 2006

A Stupid Question

Now, I'm certainly no constitutional law expert. My basic creed is that I should be able to do anything I like as long as it does not impact or interfere with someone else doing whatever they might like to do. This usually, but not always, jives with the text and intent of the constitution and/or state, federal or local law but I tend to chafe at the state deciding what is good for me.
Given that, I have a real problem with gun regulation.

The text of the Second Amendment is as follows:
"'A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The Justice department has prepared a very lengthy "brief" that says that the second amendment is not a collective right, but is instead an individual right.

Now, I'm pretty sure "Arms" could be argued to mean ANY weapon. Not just handguns or shotguns or rifles. Nor does it specify how fast a weapon should be able to shoot or how large it's projectile could be. Remember, in the day in which the constitution was written, swords were still common as were pikes and daggers as well.

Given that broad definition of "Arms" and the fact that any regulation at all is by definition an infringement on that right. How exactly can states and municipalities and even the federal government regulate the ownership of any weapon. By my way of thinking, If someone wanted to own a nuke, it could be argued that he has the constitutional right to do so. The fact that Nukes weren't even dreamed of when the constitution was written is really irrelevant. The idea was that people should have the ability to fight off and/or overthrow the government if the government grew too large and intrusive. The men that wrote the constitution had just had a very bad experience with a government that wanted to control every aspect of a person's life and they vowed to not let that happen here. Therefore, an individual should be able to be just as well armed at the US Government if he so desires. This was the intent of the second amendment.

So just what legal basis is there for gun control of any sort? I've never understood that.

By the way, this is the 10th anniversary of concealed carry in Texas

12 Comments:

Anonymous ttyler5@hotmail.com said...

Does this mean we get to shoot the liberals?

January 10, 2006 6:35 PM  
Blogger Cory said...

Gun control is hitting what you aim at.

Very effective.

S.

January 10, 2006 11:05 PM  
Blogger Rorschach said...

ttyler, only as long as it does not interfere with thier rights....=D

January 11, 2006 9:06 AM  
Blogger TxGoodie said...

As near as I've been able to figure it, gun control is a feel-good justification for trying to make sure that YOU don't have a weapon while *I* still can. "I" being the gov and criminals (which, some would say, is the same thing)...and "YOU" being the rest of us poor slobs. Now it's a known fact possessing more than one handgun (preferably a .22!) and one rifle (preferably a shotgun) makes one suspected of being a terrorist. If you don't believe me just ask Ms. Clintoon, et al. Now, I'm just a silly old female with little formal schooling skills, born and raised in East Texas with just about as red a neck as they make 'em so all I can say about all of it is: From my cold dead fingers....!

January 11, 2006 12:37 PM  
Blogger Rorschach said...

True Nuff! My point was that there MUST be some kind of legal justification that they've pulled out of somebody's arse to keep the supremes from throwing all gun laws out on thier ear. But I can't for the life of me figure out what that justification is.

January 11, 2006 12:56 PM  
Anonymous sandy said...

I can't pull up the sections of the US Code right now but I remember hearing elsewhere that the 1934 National Firearms act was originally passed as a tax upon certain firearms, and evading this "tax" had a very stiff penalty 8+ years at one time. Might be even more today

And FFLs are justified as regulating interstate commerce. The FFL requirement does not apply to transfers within a state by non-FFL residents of that state.

January 11, 2006 11:56 PM  
Blogger Rorschach said...

Sandy, That law instigated a supreme court ruling called United States V. Miller. That case erroneously defined "Arms" as a weapon that could be reasonably presumed to be militarily valuble. the law applied to sawed off shotguns, rifles capable of being concealed, machine guns (they aren't militarily useful?) and silencers (again not militarily useful?). the ruling was very narrow and even then it was dead wrong, but the ninth circuit has expanded upon that ruling numerous times. The fifth circuit on the other hand has consistantly defined arms broadly and the right to bear them as a individual right. The Supreme court has never actually ruled on the issue definitively. They've only nibbled around the edges. The whole legal landcape is a muddle and it can all be traced back to this one boneheaded ruling back in 1934. If you haven't read the brief I linked to, you should. It is quite enlightening.

January 12, 2006 7:07 AM  
Blogger Rorschach said...

Just as an aside, that bastion of liberal thought, the ACLU, used to support gun control laws, but has since gone back and revised it's stance on this on the basis that there IS NO LEGAL CONSTITUTIONAL BASIS for gun control laws, no matter "how desirable on social principles" gun control laws are, at least from thier point of view.

January 12, 2006 12:09 PM  
Anonymous Addison said...

Rorschach:

Can you cite me something about this revision you're alleging? If true, that would be welcome news, but the last time I looked, the ACLU was still strongly anti-gun. Nationally, that is. Regionally, there's much more flexibility, but that's close to meaningless.

January 12, 2006 8:30 PM  
Blogger Rorschach said...

Addison, you can find the basis for my comment here:

http://www.lectlaw.com/files/con11.htm

You'll note that they love gun laws, I did not mean to say they didn't, only that they freely admit that there is no constitutional basis for them.

January 13, 2006 12:54 PM  
Anonymous socratease said...

I don't know where lectlaw.com got that policy, the ACLU's own web site states:

"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." --Policy #47

This is dated 3/4/2002. The URL is http://www.aclu.org/police/gen/14523res20020304.html

January 14, 2006 5:22 PM  
Blogger Rorschach said...

ok, I stand corrected. I was unable to find anything on the subject on thier website when I went looking before, obviously I was not looking in the right place.

ok, so much for finding anything I agree with them on.

January 14, 2006 9:02 PM  

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