Just Fred wrote:

Hi there, Jeer.

Could we then agree that the government (which is you and me in a democratic society) has the ability to regulate the type of weaponry that can be manufactured, distributed and sold to the public?  Wouldn't that be a reasonable thing to do?

And again, I take issue with how you frame the discussion. 

First, rights are not subject to the will of the majority, especially those fundamental rights specifically enumerated in the Bill of Rights.  They are (supposedly) removed from the political arena, removed from the perogative of the legislature and held secure from shifts in majority public opinion.  SCOTUS said it more eloquentley:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.   One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly,  and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).

That government has the "ability" to exercise illegitimate, extra-constitutional powers to restrict all manner of citizen activity is not in dispute; that's why a bill of rights, calling out "NO TRESSPASSING!" was demanded.  SCOTUS again:

"The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many,  that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence  were affirmed to be unalienable rights."

US v. Twin City Power Co., 350 U.S. 222 (1956)

So, the question is, what legitimate powers does government possess that would allow it to "regulate the type of weaponry that can be manufactured, distributed and sold to the public".  

For me, that question has been settled federally for over 76 years and the answer is, not much . . .

SCOTUS has recognized the inseparable components of the right to arms and has recognized why the fully retained, never surrendered, pre-existing right was secured in a Bill of Rights provision; "to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution . . ." and why the arms secured are those of the type that are, "usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority." (Aymette v State, cited by US v Miller).

By my reading if there is one type of arm that enjoys near absolute protection it is a semi-auto sporting rifle like the AR-15. 

You need to flesh out what power you feel the government possesses now and how that power can be exercised to restrict the possession and use of certain "types" of arms among law-abiding, private citizens.  Extra credit if you can explain how you would alter 180 degrees, the long-standing, well reasoned current criteria for protection (that focuses on the usefulness of the arm in battle, i.e., how efficient it is in killing people) into a criteria that would instead allow government to prohibit private citizen possession and use of that type of arm.

Last edited by Jeerleader (8/04/2015 10:12 pm)

By my reading if there is one type of arm that enjoys near absolute protection it is a semi-auto sporting rifle like the AR-15.  -  Jeer

Ok, I suppose there is where we would disagree, and as time goes by and weapon technology continues to evolve, I believe there comes a time when a sane society needs to say, "No, you can't have that thing."

I think we've crossed that line with the AR-15.  You and I see it differently, but I'm sure there is a line you wouldn't cross, either, but I guess you feel we haven't crossed it yet.

Interesting perceptions on the Constitution and the Bill of Rights. If these "rights" are somehow inherent and above the realm of possibility of change by "the government" or mortal men, why did the founding fathers have the foresight to realize the need for a methodology to adjust these documents, and the rights contained within, in the future due to different unforeseen circumstances the could arise?

Interesting perceptions on the Constitution and the Bill of Rights. If these "rights" are somehow inherent and above the realm of possibility of change by "the government" or mortal men, why did the founding fathers have the foresight to realize the need for a methodology to adjust these documents, and the rights contained within, in the future due to different unforeseen circumstances the could arise?  -  rongone

Good question.

How is it that the 'well regulated militia' portion is never addressed?  -  CT

And another good question.

Jeer, you may want to take a look at the post offered by Tennyson, and explain how that bumpfire AR-15 sucker should be legal and not a machine gun.  Would you say that's a semi-automatic sporting rifle?
 

Last edited by Just Fred (8/05/2015 9:59 am)

Just Fred wrote:

Ok, I suppose there is where we would disagree, and as time goes by and weapon technology continues to evolve, I believe there comes a time when a sane society needs to say, "No, you can't have that thing."

Problem is, simply because "time goes by" does not kick in a process that permits government to expand its powers. 

In DC v Heller the Court said; "We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”  This is recognizing that as technology advances the "in common use" protection test will become less important.   Will a "Phased Plasma Rifle in the 40 Megawatt range" be a weapon enjoying protection under the 2nd Amendment and offered for sale in gun stores?  If it is being used by the military then chances are good . . .

As I said, it is my position that there isn't a gun out there now that fits both the original "militia" reasoning and the "citizen protecting liberty" principles.  I can't think of any legal, supported constitutional reasoning that would alter that and allow any ban to survive constitutional challenge.  It is time for the "BAN THEM!" side to either come up with valid (legal, supported constitutional) reasoning that would allow government to ban them -- or to just admit that the Constitution doesn't matter to them anymore.  The latter becomes very problematic when rights the "BAN THEM!" side cherishes, are being attacked.

Those whose arguments amount to nothing but saying they just don't like it when the Constitution is mentioned as an impediment to their proposals, are not even worthy of a response.

Just Fred wrote:

I think we've crossed that line with the AR-15.  You and I see it differently, but I'm sure there is a line you wouldn't cross, either, but I guess you feel we haven't crossed it yet.

Well, I think that full-auto weapons fall under the protection criteria but as Scalia noted; they are not now "in common use".  Also, the federal regulatory scheme that restricts possession and use of Title II weapons (machine guns, short barrel rifles and sawed-off shotguns, etc.) is written in the tax code and thus is very different than "normal" gun control laws written under the commerce clause (employing very suspect interpretation and thus open to wider challenge). 

I do believe the government has been granted the power to regulate the heavy weapons of open warfare because the power to organize, arm and provide for the army and navy has been conferred (surrendered) by the People.  The same principle behind the Constitution's restriction on Privateers can be applied today to sustain restrictions on private citizens acquiring and possessing missiles, artillery, bombs and of course, NBC weapons.

Simply put, I don't claim any right to do what has been conferred to government.  OTOH, I want government to refrain from trying to control things that the People have not surrendered power over and have fully retained a right to do.