Federal Circuit Court Strikes Down DC. Gun Ban, Upholds Individual Right to Arms

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Originally Posted by Adrian II

But if one adopts this particular reading of the Second Amendment for our day and age -- and in the light of jrisprudence it is legitimate to do so -- then such bizarre consequences are inevitable.

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Your claims of jurisprudence are a bit one-sided. Dredging up an 1846 case from the Georgia supreme court doesn't do much to set a federal precedence- it would be a Georgian precedent at best, assuming no conflicting cases have since come down the pipe- of which even that much I am skeptical. Look to US v Miller for starters.

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t's not fallacious, it's only the result of a literal interpretation. That interpretation only does not imply any arguement by itself. However is easy to see that Adrian used that form to demonstrate certain absurdities wich can be derivated from the 2nd Amendment of the USA Constitution, by only reading it's text in abstracto and pushing it to the last logical consequences.

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Interpreting 'anything capable of killing someone' to be an 'arm' as protected by the 2A and then further claiming that was the intention of the framers is absurd. Going on to claim that jurisprudence supports this is laughable.

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Originally Posted by Xiahou

Your claims of jurisprudence are a bit one-sided. Dredging up an 1846 case from the Georgia supreme court doesn't do much to set a federal precedence (..)

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Why don't you read Massey before you go any further?

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Originally Posted by Xiahou

Interpreting 'anything capable of killing someone' to be an 'arm' as protected by the 2A and then further claiming that was the intention of the framers is absurd. Going on to claim that jurisprudence supports this is laughable.

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To that I'd agree but I didn't see Adrian making that claim. It's more I think that in one of his first posts in this thread he clearly said that the purpose of this Amendment had everything to do with the political and social inestability of the first years of the independence and the need for militias to defend that independence. Those who are pro-guns are usually two things: liberals or literalists. The ones who are liberals use the liberal principles as a source of law, in wich no doubt the Constitution of the USA was based, and this is minimum government intervention, this is legitim, but there's some strong objections that can be presented to this axiological claim. The ones who are literalists say that there's a text, called Second Amendment, wich was written into the Constitution, and wich supposedly gives the right to every people living in the USA to carry a SORT of arms. Now if we push this last interpretation to its limits then what will you have, simple: people are allowed to carry ANY SORT of arms.
Then there's a third position wich, amazingly, is not yet abandoned, and it's the one wich states that such amendment was made to protect the freedoms of american society without the time element, that's in any time, in case there was some kind of opression, wheter it's from their own State or from an alien force. Taking this by it's historical context is legitim, but saying that the same premise conserves the same value in this days is a little bit forced. However if we accept that this interpretation is right, and that's what makes the 2nd Amendement so valid this days as it was centuries ago, then we also have to accept that to protect ourselves from the State we cannot simply use handguns anymore, we need heavier weaponry. I think that this is what Adrian has been saying. And I don't find it absurd as a rethoric to demonstrate a point.

I believe that the liberal position is the best one. The government should have no powers to take certain arms from the people, however when this surpasses certain limits, wich can certainly be defined as the right to self-defense, then the government, asuming a very daily position of protecting society, can and must intervein prohibiting its private ownership, this is done to protect public order and to put the State at it's legitim position: the power wich censurates and controls individual impulses so the society can hold together. There's no need for the word freedom to grow up to epic hights in this context, is simply a matter of liberal freedom, individual freedom.

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Originally Posted by Soulforged

However if we accept that this interpretation is right, and that's what makes the 2nd Amendement so valid this days as it was centuries ago, then we also have to accept that to protect ourselves from the State we cannot simply use handguns anymore, we need heavier weaponry. I think that this is what Adrian has been saying.

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Exactly my friend. :bow:

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Originally Posted by Soulforged

I believe that the liberal position is the best one. The government should have no powers to take certain arms from the people, however when this surpasses certain limits, wich can certainly be defined as the right to self-defense, then the government, asuming a very daily position of protecting society, can and must intervein prohibiting its private ownership, this is done to protect public order and to put the State at it's legitim position: the power wich censurates and controls individual impulses so the society can hold together. There's no need for the word freedom to grow up to epic hights in this context, is simply a matter of liberal freedom, individual freedom.

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If I understand you correctly, then you are saying that the people have a right to own arms as long as this doesn't "surpass certain limits." I think we can all agree that things like nuclear weapons and mustard gas surpass those limits. This leaves us open to the debate of where, exactly, to draw the line. In other words, you have brought us full circle in this debate back to the point where we can argue about exactly what types of weapons should be legal and even when and where those weapons can be legally carried.

To put it another way, the 2A is either absolute, or it is not. If you maintain that it is NOT absolute (i.e. suitcase bombs, nuclear subs, and the right to carry an uzi on a commercial aircraft) then you must be prepared for lengthy debates on exactly how it should be limited.

The situation of the U.S. has changed dramatically since the 2A was written, most notably in the technological fields. Fortunately, the framers of the Constitution allowed for flexibility through the use of ammendments. As a person who believes that all able-bodied adults have a moral responsibility to carry a weapon, or otherwise be prepared to defend themselves and their neighbors from harm, I would rather see the 2A ammended, providing reasonable limits to the type of firepower an individual can possess, than go down the slippery slope of simply ignoring or reinterpreting those parts of the Constitution which have become outdated.

We should always interpret the Constitution literally, and if we don't like the result of the literal traslation, we need to ammend it.

In a supposedly free and democratic state, based on individual liberties, wouldn't you suppose that anything too dangerous for the people to own would also be too dangerous for the state to own?

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Originally Posted by gunslinger

If I understand you correctly, then you are saying that the people have a right to own arms as long as this doesn't "surpass certain limits." I think we can all agree that things like nuclear weapons and mustard gas surpass those limits. This leaves us open to the debate of where, exactly, to draw the line. In other words, you have brought us full circle in this debate back to the point where we can argue about exactly what types of weapons should be legal and even when and where those weapons can be legally carried.

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Nope. I've stated what should be the criteria to jugde if the weapon has crossed the line or not: personal defense. Many people have done the same during this debate, and I think it's a reasonable limit.

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To put it another way, the 2A is either absolute, or it is not. If you maintain that it is NOT absolute (i.e. suitcase bombs, nuclear subs, and the right to carry an uzi on a commercial aircraft) then you must be prepared for lengthy debates on exactly how it should be limited.

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It's not.

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We should always interpret the Constitution literally, and if we don't like the result of the literal traslation, we need to ammend it.

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That's your point of view. As far as I know the legal community around the world has a different view. As stated previously, there's much more elements to consider than the letter of text, we've governed by people not letters. Every literal interpretation carries its own flaws by itself, it's too abstract.

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Originally Posted by Fisherking

In a supposedly free and democratic state, based on individual liberties, wouldn't you suppose that anything too dangerous for the people to own would also be too dangerous for the state to own?

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Yes, but the people have delegated many rights to the State, one of them is making war, and to make war and avoid casualties you need better weapons. It's the State wich makes war not society, and different from the "People" the State is formed by a centralized bureaucracy, laws, principles and the same Constitution, wich serves more to limit its powers than to take rights from the "People", it's not about what one person wants.

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Originally Posted by Soulforged

Nope. I've stated what should be the criteria to jugde if the weapon has crossed the line or not: personal defense. Many people have done the same during this debate, and I think it's a reasonable limit.

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Very well. I'd argue that I need a Howitzer to defend myself. :grin: And for the record I completely disagree about personal defense. Many people hunt or shoot targets for sport. As someone else pointed out, make it easier for people who want to legally own guns of different kinds, and make it harder on criminals who obtain them illegally and use them in crime.

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It's the State wich makes war not society, and different from the "People" the State is formed by a centralized bureaucracy, laws, principles and the same Constitution, wich serves more to limit its powers than to take rights from the "People", it's not about what one person wants.

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You must not live here in the US or the UK then. The US government has arguably gone well into the area of "self perpetuation" lately, and done just about everything it can to push the boundaries of what it can legally (and illegally) do to it's citizens and foriegn nationals, and how many more of our rights they can strip away. Witness Guantanamo Bay. Witness the DMCA and Patriot Act. Witness Bush flagrantly ignoring the Constitution, law, and due process with his wiretaps. Personally I think we should impeach him for that as he's clearly broken his vow to "uphold the Constitution and the laws of our nation." More and more when I see and read what the government is doing, it makes me think more seriously about purchasing a gun for self defense. Before anyone knocks me on that, I suggest you take a long hard look at the current state that my (our?) government and nation is in, and go read the Declaration of Independance again. Just some thought.

:bow:

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Originally Posted by Soulforged

Nope. I've stated what should be the criteria to jugde if the weapon has crossed the line or not: personal defense. Many people have done the same during this debate, and I think it's a reasonable limit.

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I agree that self defense is a good starting point. However, as Whacker has pointed out with a somewhat ridiculous example, that still leaves a lot of room for debate. Also, do people have a right to self defense at the mall, in the car, or only in their homes? What about on the pulic sidewalk that runs through their yard?

Earlier in this thread it was stated that the debate here should not be about whether a person needs, or should be allowed, to possess or carry a weapon for self defense. It was stated that those issues had already been hashed out ad naseum in other forums, and that the real issue here was the interpretation of the Second Ammendment. A very heady debate concerning past case law, common law, and 18th century definitions of words such as "arms" and "ordnance" then ensued. People questioned whether colonists were allowed private ownership of cannons. These were all well-formulated arguments and discussions, and relevent to the topic.

Not surprisingly, the debaters seemed to end up at the point where they realized that the 2A did, in fact, protect the rights of citizens to own cannons in the 18th century. The simple logic that follows leads one down the path of insanity to a place where modern Americans should be allowed to own whatever type of ordnance they wish.

Please understand that I'm not suggesting that I want people to be allowed to own tactical nukes. I am suggesting that the 2A would seem to allow it. Therefore, I am of the opinion that the Second Ammendment should be ammended. It obviously fails to take into account the effects of modern weaponry.

An ammendment, debated by the U.S. Congress as well as the Congress of every state (or at least 2/3 of them) should bring us a much more satisfying answer to this issue than a handful of activist justices overturning each other every time the adminstration changes.

A new thread, entitiled "How would you ammend the Second Ammendment" would probably be interesting, as long as you ignored all of the bad jokes and fringe extremists from both sides.

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Originally Posted by gunslinger

I agree that self defense is a good starting point. However, as Whacker has pointed out with a somewhat ridiculous example, that still leaves a lot of room for debate. Also, do people have a right to self defense at the mall, in the car, or only in their homes? What about on the pulic sidewalk that runs through their yard?

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That's for the courts to determine, I was only speaking in regards to the 2nd Amendment and its rational limits.

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Originally Posted by Whacker

You must not live here in the US or the UK then. The US government has arguably gone well into the area of "self perpetuation" lately, and done just about everything it can to push the boundaries of what it can legally (and illegally) do to it's citizens and foriegn nationals, and how many more of our rights they can strip away. Witness Guantanamo Bay. Witness the DMCA and Patriot Act. Witness Bush flagrantly ignoring the Constitution, law, and due process with his wiretaps. Personally I think we should impeach him for that as he's clearly broken his vow to "uphold the Constitution and the laws of our nation." More and more when I see and read what the government is doing, it makes me think more seriously about purchasing a gun for self defense. Before anyone knocks me on that, I suggest you take a long hard look at the current state that my (our?) government and nation is in, and go read the Declaration of Independance again. Just some thought.

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I'm not saying that the State cannot surpass those limits, I'm only saying that the State has those limits and is more responsable using their instruments than any other individual in particular.

When the Constitution was written it was illegal in several states to practice law for money.
It was supposed to be in language anyone could understand. Also the law was common law and was more concerned with intent and not the letter of the law.

The document was deliberately written to limit government and to keep them out of peoples affairs. It worked fairly well until the 1860s and the erroneous decisions regarding states rights. It also took off when they managed to get the 16th amendment excepted and had a direct tax. You will note there after that the federal government exploded after that and we moved away from common law to admiralty law and began worrying about the letter of the law rather than its intent.

Today you will note that the Army can't be called out for police work or disaster relief because of posy commutates but they can call out the Marines….(the letter of the law and not its intent).

Continuing with the limits of arm ownership (sorry for not doing it earlier but I didn't have time): What about this rule: The following weapons are allowed for any particular individual, adult, without an history of violence, previous convictions, incapacity (if it's dangerous for other people or himself): All non-lethal weapons, lethal melee weapons (?) and lethal ranged weapons with no more than a certain caliber, like let's say .50 (or arrows). Other people who do have an history of violence or previous convictions or are not yet adults could own (or simply posess) all non-lethal weapons. There's no restriction of quantity, all of the previous requisites should be acredited via a sort of identification and weapons can be personalized as long as it doesn't surpass any of the three mentioned categories into the next (non-lethal, melee, ranged up to .50). Perhaps someone who is an expert on the subject can help me here.

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Originally Posted by Soulforged

Continuing with the limits of arm ownership (sorry for not doing it earlier but I didn't have time): What about this rule: The following weapons are allowed for any particular individual, adult, without an history of violence, previous convictions, incapacity (if it's dangerous for other people or himself): All non-lethal weapons, lethal melee weapons (?) and lethal ranged weapons with no more than a certain caliber, like let's say .50 (or arrows). Other people who do have an history of violence or previous convictions or are not yet adults could own (or simply posess) all non-lethal weapons. There's no restriction of quantity, all of the previous requisites should be acredited via a sort of identification and weapons can be personalized as long as it doesn't surpass any of the three mentioned categories into the next (non-lethal, melee, ranged up to .50). Perhaps someone who is an expert on the subject can help me here.

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I don't disagree entirely with your intent, but the problem you run into is discrimination. Why would you disbar someone who say for example, once got in trouble for being in possession of a very small amount of drugs, from owning a weapon? Does that conviction automatically make them any more unfit, that say for example the violent-minded Neonazi who's got a clean record? I'm for some levels of limitation (Howitzers are overkill :grin:), I just don't know how that would be done. This is again why I'm for the most part disinclined and against putting too firm of bounds around the freedoms that are enumerated in our Constitution.

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Originally Posted by Soulforged

Continuing with the limits of arm ownership (sorry for not doing it earlier but I didn't have time): What about this rule: The following weapons are allowed for any particular individual, adult, without an history of violence, previous convictions, incapacity (if it's dangerous for other people or himself): All non-lethal weapons, lethal melee weapons (?) and lethal ranged weapons with no more than a certain caliber, like let's say .50 (or arrows). Other people who do have an history of violence or previous convictions or are not yet adults could own (or simply posess) all non-lethal weapons. There's no restriction of quantity, all of the previous requisites should be acredited via a sort of identification and weapons can be personalized as long as it doesn't surpass any of the three mentioned categories into the next (non-lethal, melee, ranged up to .50). Perhaps someone who is an expert on the subject can help me here.

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Actually, that is the kind of thing that has been going on in Congress and the Courts for years. There is actually a big push on right now to outlaw the .50 cal. weapons because they are the most effective sniper rifles to date. This, of course, wouldn't affect black powder muzzle-loading rifles in which .50 cal. is actually a fairly small round. A 12 gauge shotgun slug is .72 cal. As you can see, this gets very complicated. A line needs to be drawn in the sand, but no one agrees on where to draw it. We end up with laws like the ridiculous assault weapon ban which was allowed to expire during the Bush administration. Under that law, a semiautomatic version of an M-16 rifle was perfectly legal. Unless it had a bayonet lug. That's right, a small chunk of metal welded on near the end of the barrel to allow a military bayonet to be affixed would make the weapon illegal. How many crimes have been commited with fixed bayonets in the last 100 years?

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Originally Posted by Whacker

I don't disagree entirely with your intent, but the problem you run into is discrimination. Why would you disbar someone who say for example, once got in trouble for being in possession of a very small amount of drugs, from owning a weapon? Does that conviction automatically make them any more unfit, that say for example the violent-minded Neonazi who's got a clean record? I'm for some levels of limitation (Howitzers are overkill :grin:), I just don't know how that would be done. This is again why I'm for the most part disinclined and against putting too firm of bounds around the freedoms that are enumerated in our Constitution.

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Ok, I forgot to add "for violent crimes", that would be "convictions for violent crimes". I don't really know why this is so difficult in theory, just set a limit, draw a virtual line based on objective parameters that exist and all is solved. I mean, we're not talking here about "love" or "prettiness" but the sizes and power of weapons, they're all perfectly determined...

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Originally Posted by gunsingler

Actually, that is the kind of thing that has been going on in Congress and the Courts for years. There is actually a big push on right now to outlaw the .50 cal. weapons because they are the most effective sniper rifles to date. This, of course, wouldn't affect black powder muzzle-loading rifles in which .50 cal. is actually a fairly small round. A 12 gauge shotgun slug is .72 cal. As you can see, this gets very complicated. A line needs to be drawn in the sand, but no one agrees on where to draw it. We end up with laws like the ridiculous assault weapon ban which was allowed to expire during the Bush administration. Under that law, a semiautomatic version of an M-16 rifle was perfectly legal. Unless it had a bayonet lug. That's right, a small chunk of metal welded on near the end of the barrel to allow a military bayonet to be affixed would make the weapon illegal. How many crimes have been commited with fixed bayonets in the last 100 years?

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I still don't see the complication, it might be on the power struggle inside Congress, but on plain terms it's pretty simple. If we accept that by principle a person is responsable and he can use a gun without damaging anyone else (unless it's on self defense or defense of others) or destroying things, then I think that a simple number as limit will do the work. Even more it will end with illegal trade and arms traffic.

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Originally Posted by Sasaki Kojiro

There's some quote from a Japanese admiral to that effect I believe.

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Paraphrased: An invasion is impossible. There will be a gun behind every blade of grass.
A good example, in action, is Iraq. I'm surprised it's never brought up to support the pro-gun cause. ~:confused:



/sarcasm

The invasion bit, or the gov'ment-turned-despotic argument, is entirely anachronistic. Invasions are out since MAD kicked in, and the chances of Hillary/Obama installing a military junta? Now there's a hypothetical scenario that won't happen till hell freezes over.
Self-defense is still valid, and I do support private gun-ownership excluding automatic weapons (admittedly, I used to think differently for a long time). Especially in America where distances are generally larger, and therefore the police response-time generall longer. There should, IMO, be severe penalties if a crime is committed or an accident happens with your weapon unless you can prove that you couldn't have (reasonably) prevented it. Personal responsibility and all.