Law POTWR 2019 Vol 4: Repeal Or Respect The 2nd Amendment?

[spamking]

@spamking

https://www.yahoo.com/news/aurora-gunman-gary-martin-apos-161340436.html

Unbelievable . . . but yet the House Judiciary Committee is likely using this stupid case as a reason to push HR 8 and HR 1112 . . .

 

[spamking]

Specifically, I feel very strongly about prohibited persons caught with firearms, that have an extensive criminal history, should be locked up for a long time.

It's amazing how much something like this would improve society . . . actually enforcing this one particular aspect of existing gun laws.

 

[Higus]

I don't think it is limited there. But it's called picking your battles.

The only argument I can think for excluding things like hand-grenades is that they are not standard issue for each soldier. Firearms clearly are and you'd have a piss-poor militia absent any.

I guess I want to explore this train of thought for a bit if you'll allow it. There is a discrepancy between what people believe to be the founding father's intent and what is accepted as practical in modern times. I really want to explore into the "why" and perhaps poke some holes in some common Pro-2A arguments. Some questions to consider:

• Was the Founding father's intent that civilians be able to privately own arms in order for them to be able to protect against domestic tyranny and external armies?
• Did the FF's intend to make a distinction between firearms and explosives at the time, or did technological advancements necessitate a modern interpretation, or are there other explanations that close the discrepancies?
• If it's "picking your battles", then what was the rationale behind restricting access to explosives, or other weapons such as automatic rifles? And what prevents that rationale from being applied to modern weapons approved for civilian use? Or, if gun laws are a slippery slope, is the slope justifiable as changes to technology and society advance?

 

[Cubo de Sangre]

I guess I want to explore this train of thought for a bit if you'll allow it. There is a discrepancy between what people believe to be the founding father's intent and what is accepted as practical in modern times. I really want to explore into the "why" and perhaps poke some holes in some common Pro-2A arguments. Some questions to consider:

• Was the Founding father's intent that civilians be able to privately own arms in order for them to be able to protect against domestic tyranny and external armies?
• Did the FF's intend to make a distinction between firearms and explosives at the time, or did technological advancements necessitate a modern interpretation, or are there other explanations that close the discrepancies?
• If it's "picking your battles", then what was the rationale behind restricting access to explosives, or other weapons such as automatic rifles? And what prevents that rationale from being applied to modern weapons approved for civilian use? Or, if gun laws are a slippery slope, is the slope justifiable as changes to technology and society advance?

The "why" seems pretty simple to me. Politicians passed law in 1934 in response to violence resulting from prohibition that most people saw as only affecting criminals. So they didn't put up much fuss and the court upheld the NFA. It should be pointed out the circuit court ruled against it and the government appealed to SCOTUS. The other side didn't show up and the feds won, ultimately allowing taxation and registration on certain arms. It's been a slippery slope since then thanks to SCOTUS taking all of two cases since then (in 2008 and 2010).

• Of course. The whole system of national defense was predicated on militias that could be called up when needed so that indicates protecting against external forces. The fact that the 2nd was put in place to prohibit the feds from undermining the militias is evidence that the protection is also against tyranny from within.
• They said "arms". If they wanted to say "firearms" they could have. Do cannons count as explosives? Probably not. Dynamite came much later. My guess is things like that didn't really exist. I doubt that would have changed anything. But if so, there's a process to amend the Constitution. I'm sure they'd advocate going that route vs. dishonest twisting of language and general apathy towards the feds not following the rules they were supposed to be constrained by.
• Combating the organized crime that arose from prohibition was the rationale. And even then, it was done with an exorbitant tax, not bans. After that legislators used violence against politicians. The 1968 law was initially promoted because of JFK's death and passed on the heels of MLK and RFK murders. Then the 1986 law (the first to outright ban machine guns not on the registry by a certain date) was the result of Reagan being shot. Semi-auto actions aren't modern. Unless you consider 100 year old technology modern.

 

[jlagman]

I'd go as far as to argue that the "arms" referenced in the document were at par with standard issue for infantry. So now that there exists a disparity or infringement, as in, the AR-15 is not the same as an M4/M16; semi-auto is already the compromise that is allegedly lacking.

 

[Cubo de Sangre]

I'd go as far as to argue that the "arms" referenced in the document were at par with standard issue for infantry.

I don't see how any knowledgeable person could argue that protected arms would be anything less.

 

[Higus]

The "why" seems pretty simple to me. Politicians passed law in 1934 in response to violence resulting from prohibition that most people saw as only affecting criminals. So they didn't put up much fuss and the court upheld the NFA. It should be pointed out the circuit court ruled against it and the government appealed to SCOTUS. The other side didn't show up and the feds won, ultimately allowing taxation and registration on certain arms. It's been a slippery slope since then thanks to SCOTUS taking all of two cases since then (in 2008 and 2010).

• Of course. The whole system of national defense was predicated on militias that could be called up when needed so that indicates protecting against external forces. The fact that the 2nd was put in place to prohibit the feds from undermining the militias is evidence that the protection is also against tyranny from within.
• They said "arms". If they wanted to say "firearms" they could have. Do cannons count as explosives? Probably not. Dynamite came much later. My guess is things like that didn't really exist. I doubt that would have changed anything. But if so, there's a process to amend the Constitution. I'm sure they'd advocate going that route vs. dishonest twisting of language and general apathy towards the feds not following the rules they were supposed to be constrained by.
• Combating the organized crime that arose from prohibition was the rationale. And even then, it was done with an exorbitant tax, not bans. After that legislators used violence against politicians. The 1968 law was initially promoted because of JFK's death and passed on the heels of MLK and RFK murders. Then the 1986 law (the first to outright ban machine guns not on the registry by a certain date) was the result of Reagan being shot. Semi-auto actions aren't modern. Unless you consider 100 year old technology modern.

Thanks for the response. I don’t have a lot of time today to organize my thoughts coherently, so I apologize in advance. Here are some thoughts/questions I had upon reading it.

• You did a good job of explaining the context of some of the legal rulings, and I appreciate that.
• From a high level, the 1943, 1968, and 1986 laws were a response to criminal acts, and perhaps to prevent future crimes. Was amending the law as a response to potential threats not justified, or is legislation justified but overreached in these cases, or some other explanation?
• I can understand the argument for state run militias, but it seems like a stretch to extend the need for a well-regulated militia to untrained civilians that are not accountable to said militia. I could see states enforcing their own laws about private ownership along with regulations for militias in the state constitutions, but I that could create an argument for federal protection at the individual level to be over-reach on the states. Not a question, just a thought.
• FWIW, private citizens could own cannons, and both mortars and primitive grenades were used in the Revolutionary war. I don’t know if there’s a good reason to think the FF’s intended only firearms to be available to militias/citizens.
• Arguing that grenades weren’t in the scope because they hadn’t been invented yet opens up an argument that any innovations in weaponry since the FFs time is not in scope of the 2nd Amendment either, which would justify regulating them to some degree.

 

[Higus]

I don't see how any knowledgeable person could argue that protected arms would be anything less.

Is it fair to ask that a civilian wishing to own military hardware undergo the same training, scrutiny, and regulations that the military would need to maintain, transport, store, and operate it?

 

[jlagman]

Is it fair to ask that a civilian wishing to own military hardware undergo the same training, scrutiny, and regulations that the military would need to maintain, transport, store, and operate it?

But, we've already established that it isn't military hardware; it's an already existing compromise.

 

[Higus]

But, we've already established that it isn't military hardware; it's an already existing compromise.

Why is a compromise necessary?

 

[jlagman]

Why is a compromise necessary?

Isn't that a usual demand by gun control proponents? Buzzwords like "compromise" and "reasonable" usually get thrown around during these discussions and they clearly mean different things to either side of the argument.

 

[Higus]

Isn't that a usual demand by gun control proponents? Buzzwords like "compromise" and "reasonable" usually get thrown around during these discussions and they clearly mean different things to either side of the argument.

Sorry for leading you on a little, but bear with me for a bit. Is it reasonable to to put some restrictions on some firearms, or is it against the intent of the FF's?

 

[jlagman]

Sorry for leading you on a little, but bear with me for a bit. Is it reasonable to to put some restrictions on some firearms, or is it against the intent of the FF's?

My argument is that regardless of FF intent and for good or ill, restrictions already exist and there is already a disparity of access to force. Existing restrictions should actually be enforced before demanding new ones.

 

[Higus]

My argument is that regardless of FF intent and for good or ill, restrictions already exist and there is already a disparity of access to force. Existing restrictions should actually be enforced before demanding new ones.

Is there an argument that there should not be a disparity of access to force between people who have undergone training and are accountable to follow regulations compared to the average citizen?
Is there a reason why enforcing current laws can't be done at the same time as introducing new ones? Creating laws and enforcing them are separate branches of the government. One failing to do their part does not absolve the other of their responsibilities.

 

[Cubo de Sangre]

Thanks for the response. I don’t have a lot of time today to organize my thoughts coherently, so I apologize in advance. Here are some thoughts/questions I had upon reading it.

• You did a good job of explaining the context of some of the legal rulings, and I appreciate that.
• From a high level, the 1943, 1968, and 1986 laws were a response to criminal acts, and perhaps to prevent future crimes. Was amending the law as a response to potential threats not justified, or is legislation justified but overreached in these cases, or some other explanation?
• I can understand the argument for state run militias, but it seems like a stretch to extend the need for a well-regulated militia to untrained civilians that are not accountable to said militia. I could see states enforcing their own laws about private ownership along with regulations for militias in the state constitutions, but I that could create an argument for federal protection at the individual level to be over-reach on the states. Not a question, just a thought.
• FWIW, private citizens could own cannons, and both mortars and primitive grenades were used in the Revolutionary war. I don’t know if there’s a good reason to think the FF’s intended only firearms to be available to militias/citizens.
• Arguing that grenades weren’t in the scope because they hadn’t been invented yet opens up an argument that any innovations in weaponry since the FFs time is not in scope of the 2nd Amendment either, which would justify regulating them to some degree.

Sure thing and no worries.

• Thanks. You're welcome.
• It may be justified (although not in my personal opinion), but to legally enact those restrictions it requires a Constitutional Amendment. Not some regular old Congressional Bill. The integrity of our system demands it.
• There's more than one concept of militia. Organized and disorganized. The core principle remains the same, regardless of training undertaken by the people or the states. That principle is that the federal level of government has no right to restrict or prohibit arms being kept and operated by the people. There's three players (people, state government, federal government). The 2nd clearly prohibits the federal level from compromising the peoples' and states' right to common defense. I posted a quote from the first (or second) SCOTUS case on the 2nd where it's admitted the feds have no jurisdiction, but they could stop the states from disarming the people because that would compromise the federal government's ability to call up state militias for national defense. So the feds could step in to see people are armed, but not step in to disarm them.
• If I wasn't clear, I believe the founding fathers meant all arms were protected (including future technology). They would not have wanted the people to be at a force disadvantage. And if they just meant firearms they wouldn't have used the broader category of "arms". Sorry if I confused that issue.
• I'm not saying explosives aren't protected. I'm saying at best one could argue restrictions based on what an infantryman needs/not needs to engage and win in combat (which may or may not currently include explosives). And that while it very well could be the case the founders would have excluded nukes and WMD's had they existed, they didn't and they weren't. So do things the right way and pass an Amendment, because I've no doubt we'd reach enough consensus.

Is it fair to ask that a civilian wishing to own military hardware undergo the same training, scrutiny, and regulations that the military would need to maintain, transport, store, and operate it?

As far as I know both the states and the feds have the right to conscription, or to even offer voluntary part-time training. And the feds certainly have the right to regulate as they see fit the military/militias under its control. What the feds don't have the right to do, as per the 2nd, is require anything in order for those arms to be owned and operated by the people.

 

[Cubo de Sangre]

Is there an argument that there should not be a disparity of access to force between people who have undergone training and are accountable to follow regulations compared to the average citizen?

Yes. It's called the Revolutionary War. The founders were averse to a standing army. The "force" needed for defense was to be provided ground up, not top down.

 

[jlagman]

Is there an argument that there should not be a disparity of access to force between people who have undergone training and are accountable to follow regulations compared to the average citizen?
Is there a reason why enforcing current laws can't be done at the same time as introducing new ones? Creating laws and enforcing them are separate branches of the government. One failing to do their part does not absolve the other of their responsibilities.

Firstly you're grossly overestimating the training disparity, especially when you consider the trend of police agencies becoming more para-militaristic and "patrol carbines" making their way into more and more average cruisers. Which also ignores that the level of training, available to civilians, has only been improving and becoming more prevalent. The argument against a force disparity is tyranny of course. Government serves, it doesn't rule. In that context, why do they need more firepower than their citizenry, oppression, perhaps?

What new law would improve the situation? Why do it when current laws aren't/can't be enforced?

 

[Greoric]

Good non-emotionally based points and questions in here @Higus. I'm enjoying your posts.

 

[Higus]

Firstly you're grossly overestimating the training disparity, especially when you consider the trend of police agencies becoming more para-militaristic and "patrol carbines" making their way into more and more average cruisers. Which also ignores that the level of training, available to civilians, has only been improving and becoming more prevalent. The argument against a force disparity is tyranny of course. Government serves, it doesn't rule. In that context, why do they need more firepower than their citizenry, oppression, perhaps?

What new law would improve the situation? Why do it when current laws aren't/can't be enforced?

Yes. It's called the Revolutionary War. The founders were averse to a standing army. The "force" needed for defense was to be provided ground up, not top down.

This goes to the root of my issue: if individual civilians should be allowed arms for the purpose to fight tyranny, regardless of state sponsored militia affiliation, regulation, or scrutiny, then there should not be limits to what the individual can own to meet those needs. Reductio Ad Absurdum. An untrained private citizen *should* be able to buy a rocket launcher and a mini-gun from Walmart, no questions asked. This is the absurd conclusion is the only logically consistent one.
So the question seems to boil down to if regulations are necessary or not, and if so, the minutiae of defining the criteria for regulations.

 

[jlagman]

This goes to the root of my issue: if individual civilians should be allowed arms for the purpose to fight tyranny, regardless of state sponsored militia affiliation, then there should not be limits to what the individual can own to meet those needs. Reductio Ad Absurdum. An untrained private citizen *should* be able to buy a rocket launcher and a mini-gun from Walmart, no questions asked. This is the absurd conclusion is the only logically consistent one.
So the question seems to boil down to if regulations are necessary or not, and if so, the minutiae of defining the criteria for regulations.

But an untrained private citizen can't just buy a rocket launcher and a minigun from Walmart and even if they could, the market prices most people out of such things anyways.

Speaking of absurd conclusions and logical consistency, what if we went the other direction? For the sake of argument, let's say semi-autos are banned; then don't half-ass it by having an exemption for police, level the playing field and go retro with double-action revolvers and pump shotguns. It undermines the "nobody needs that" argument.