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Tremendous Victory for the Second Amendment in Ohio:

A few minutes ago, the Ohio Senate voted 21-12 to override Republican Governor Bob Taft's veto of a bill to reform Ohio's gun laws. The Ohio House had previously voted 71-21 to override the veto of House Bill 347. Because both houses achieved the necessary 3/5 majority, the bill will become law in 90 days.

Today's vote is the first time that the Ohio legislature has overridden any veto since 1986, when a line-item budget veto was overridden. It is the first time since 1977 that a veto of an ordinary bill has been overridden.

The bill makes a variety of changes to Ohio's Shall Issue law for concealed handgun licenses. It explicitly prohibits local governments from creating no-carry zones, except in places where state law already forbids carryings. The bill also removes the requirement that concealed carry permitees must, when driving, keep the handgun in plain view in the car, or in a locked container.

Even more significantly, the bill eliminates over 80 anti-gun local ordinances, including bans on cosmetically-incorrect self-loading firearms (so-called "assault weapons") in Cleveland, Columbus, Dayton, and Cincinnati. Like the vast majority of states, Ohio does not have an "assault weapon" ban, but Ohio has had more cities with local bans than has any other non-ban state.

As I detailed in a 2003 Issue Backgrounder for the Independence Institute, almost all states have some form of preemption law which restricts or prohibits local gun laws. The strong, ccomprehensive preemption law enacted in Ohio is the model used in about half of the states with preemption.

Some other features of the bill:

The bill begins: "The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio..."

The bill bans all local gun control laws which do not duplicate state or federal law. Litigants who bring a successful suit under the bill are entitled to attorney's fees.

Localites may still enact zoning laws which: 1. Ban gun stores in residential or agricultural areas. 2. Impose laws about hours of store operation, as long as those same laws are imposed on other non-gun stores.

In practical effect, the Ohio bill is the most significant roll-back of gun control that has ever been enacted by a state. Preemption laws swept the country in the 1980s, after Morton Grove, Illinois, banned handguns. In most state legislatures, the bills were intended to prevent future local gun bans, since there were few local bans that were in effect. I am not aware of any other state where a preemption law has wiped out so many local ordinances which were already on the books.

Among the Senators voting for the override was Democrat Marc Dann, the Attorney General-elect of Ohio. I knew Marc when he ran that Gary Hart campaign in Michigan in 1983-84, for which I was a volunteer. He is a good man with limitless energy.

The NJ Annuitant (mail):
This is great news. I regret that such a bill would never be enacted in New Jersey.


[DK: When I was in Ohio testifying for CCW in the mid-1990s, an experienced local activist told me that preemption would be essentially impossible to enact. So don't give up hope.]
12.12.2006 5:11pm
Beerslurpy (mail) (www):
Hey, is there a list of issue backgrounders that have already been done? They might make a handy reference guide. It would also show areas that are in need of fresh research, for those of us who have months of time to spare and westlaw/lexisnexis accounts.

[DK: All Independence Institute backgrounders and issue papers are available for free at i2i.org. My own II materials are also available at www.davekopel.org]
12.12.2006 5:11pm
Beerslurpy (mail) (www):
In NJ it wouldnt matter, since you have more than a fair share of noxious state level laws. In NY, it would be a very good thing, but it has about as much chance of passing there as gay people have of being legally married in alabama.
12.12.2006 5:13pm
DJR:
Yes a great victory. Huzzah for the right to wonder what nutjob that you cut off in traffic is legally carrying with the gun handily in plain view. Ohio is now saved.

[DK: That's a point relevant to Ohio's enactment of Shall Issue in the first place, not to today's reform of the required method of automobile carry.]
12.12.2006 5:17pm
Jeff Leyser (mail):
This is a bit of a tangent, so I understand if the moderators delete the post. And let me also explicitly say that I am not the least bit interested in a "guns are good" "guns are bad" argument. But....

I can see how the Right to Bear Arms was an important right in a world where the best weapon anyone could have was a musket, or maybe a cannon. But in the modern age, where the government has bombers, fighters, tanks &hand grenades versus the citizen's pistols &shotguns, how does this right protect the citizenry? And if it doesn't protect us, what good does it do?


[DK: I suspect that the Ohio legislature was not concerned with revolution against tyranny, but with protection from criminals, for which guns are fine, and tanks, etc. are inappropriate.]
12.12.2006 5:17pm
te:
Jeff

You could look at that two ways: 1) people should be allowed to own their own tanks and planes.

But, more realistically, if you want evidence of the usefulness of small arms in combatting modern military weapons - see the "insurgency" ongoing in Iraq.
12.12.2006 5:24pm
Nobody (mail):
Can a constitutional right to bear arms be squared with, for example, laws that would prohibit me from erecting a private nuclear arsenal in my backyard?

I'm not trolling--I'm uninformed on the nuances of 2nd amendment theory, and am genuinely interested in knowing if there is an answer to this question.

By the same token: how do proponents of Second-amendment-as-individual-right justify laws that, for example, prohibit convicted felons from owning handguns? Surely no one would argue that the first amendment contains an exception for convicted felons (speaking here of people who have done their time, are no longer in jail or on parole or probation). What's the justification (from a constitutional interpretation perspective) of denying convicted felons a (purported) fundamental right guaranteed by the constitution?

(Again--I mean these as serious questions. I'm not trolling. If there's a site somewhere online that answers these questions, I'd be grateful for a pointer.)


[DK: The main 19th century test was "civilized warfare" weapons were ok; that is rifles, swords, etc., but not bowie knives, or other weapons associated with brawlers. In this article, I suggest updating the test to encompass ordinary police equipment (e.g., rifles, shotguns, handguns); this test would leave out nuclear weapons, etc. http://davekopel.com/2A/LawRev/19thcentury.htm. As for convicted felons, the 19th century case of Cummings v. Missouri (discussed in a footnote in the above-cited article) might support your theory, but the modern federal Court of Appeals cases are unanimously on the other side.]
12.12.2006 5:29pm
Nobody (mail):
One more question:

If I have a constitutional right to keep and bear arms, but the US Marshals at the local federal courthouse won't let me into the building while carrying my handgun, are my constitutional rights being violated? Can the government deny me access to a government service (entry into federal building) only on the condition that I effectively waive a constitutional right?
12.12.2006 5:35pm
Beerslurpy (mail) (www):
You can't live inside a tank. And tanks dont maintain themselves or reproduce. Soldiers and especially advanced equipment require enormous civilian involvement to supply, maintain and create. Even a first world army quickly crumbles when placed under seige from its own citizens. If the army is even slightly uncooperative when ordered to open fire on the citizenry, the game is pretty much up.

It is remarkable how many despotic regimes have endured through either disarming and starving their populations or through heaps of outside aid that allow them to maintain a powerful army despite lack of a civilian population of contributing to its upkeep.

History is full of tyrannical regimes and 1st world invaders being overthrown by unsophisticated peasant armies. Our right to keep and bear arms comes from one such shocking upset.
12.12.2006 5:36pm
Spartacus (www):
I would personally argue that only felons convicted of violent crimes should have their 2d Amend. rights infringed. I don't think it's too hard to see why. 1st Amend. rights are also limited where appropriate. Just because you've paid your debt, dopesn't mean you aren't still a risk. However, I'm not sure that all violent offsnders should permantently lose all 2d amend. rights. Perhpas their could be a judicial process akin to an expungement hearing or what some states have for gettign back your voting rights. However, under current laws in most places, all felonies seriously limit your 2d Amend. rights. Pretty silly when you think about what qualifies as a felony (esp. under fed law).
12.12.2006 5:36pm
Beerslurpy (mail) (www):
Also, even a strict scrutiny approach wouldnt prevent the government from:
-banning violent felons from owning weapons. There is a compelling soceital interest here in preventing criminals from reoffending- people with a history of committing violent crimes should be barred from weapons ownership
-banning civilian ownership of nuclear weapons. Little benefit from civilian ownership of nukes and strong compelling interest in not having nukes being set off, even for supposedly good reasons.
-regulating use of tanks on the roads or the use of fighter jets in the air. Newsflash, civilians already can own tanks and fighter jets. Where do you think hollywood gets tanks from when it does WWII movies? They borrow them from civilian collectors. But you have to obey all the regulations already in effect for using vehicles on public roads or flying planes in the air. This is already the law.
12.12.2006 5:43pm
Nobody (mail):
Spartacus,
That's a policy argument for denying guns to certain felons. I was looking for a constitutional argument. Maybe I should give a hypothetical to ensure clarity.

Steve beats a friend to death with a baseball bat and is convicted of murder. He is sentenced to 20 years in prison. Upon his release, he self-publishes and distributes a pamphlet arguing in favor of federal funding for stem-cell research. The police arrest him for "pamphleteering by a convicted felon." Clearly his 1st amendment rights have been violated--I hope we can agree that no court would allow Steve to be punished for such pamphleteering.

After his arrest gets thrown out, he goes to a gun shop to buy a handgun to protect himself and his family. The gun shop owner informs him that he can't buy a gun because he's a convicted felon.

My question: assuming that the second amendment guarantees the right of some individuals to keep and bear some arms, what is the constitutional argument (under the 2d amendment or some other constitutional provision) for denying those rights to certain individuals on the basis of their having been convicted of a crime?
12.12.2006 5:44pm
PersonFromPorlock:
DJR:

Yes a great victory. Huzzah for the right to wonder what nutjob that you cut off in traffic...


I could suggest learning better driving manners, but in fact people who go legally armed tend to be very careful not to lose their tempers; so feel free to continue driving boorishly.
12.12.2006 5:46pm
Matt Tievsky (mail):
Hm, why call this a "victory for the Second Amendment"? I saw that title and expected to learn about a case recently decided by a federal court. Isn't it simply a victory for the right to bear arms?
12.12.2006 5:48pm
Malvolio:
<blockquote>Huzzah for the right to wonder what nutjob that you cut off in traffic is legally carrying with the gun handily in plain view.</blockquote>I wouldn't worry about it too much. A bullet from a legally-carried gun hurts about the same as one from an illegal gun.
12.12.2006 5:50pm
Sebastian (mail):
Nobody:

I think it could be argued that since being convicted of certain crimes allows the government to remove many of your basic civil rights for a period of time (throwing someone in prison is a pretty extreme violation of someone's civil rights), then legislatures can choose to remove civil rights upon conviction of a crime. I suppose then the issue would be whether it's "cruel or unusual" punishment to disbar someone of their second amendment rights. Personally, I think there should be provisions for restoration of rights, but I'm not sure I would argue that the right to bear arms trumps disarmament of people convicted of certain crimes.

But that's just my opinion, and certainly not a lawyerly or scholarly one.

As far as the nuclear arsenal issue, I think the reasonable argument is that the second amendment applies to ordinary private arms that would be useful for self-defense and are equipment normally fielded by individual soldiers. Nuclear weapons wouldn't apply here, and perhaps neither would other types of heavy ordnance.

If you want my opinion, the second amendment should be read to apply to personal arms, which, to many other people's disagreement, would include fully automatic assault rifles and many other light infantry weapons. But crew served weapons and ordnance generally only useful in context of an organized army wouldn't be covered. I also thing the second amendment wouldn't prevent states and local government from prohibiting possession of ordnance in contexts where it would be inherently dangerous to the community, so if you wanted a mortar launcher, that would be fine. The mortar shells themselves might be regulated or prohibited depending on circumstance. Same with grenades and other explosive ordnance.

But I'm not a laywer or legal scholar. It's just what I've come up with thinking a lot about the subject. I'm sure there are some hard core libertarians out there who will be pissed I'm arguing they don't have a constitutional right to own their own Pershing Missile ;)
12.12.2006 5:53pm
Jacobus:

in fact people who go legally armed tend to be very careful not to lose their tempers


yikes, that's an awfully unsupported sounding "fact."
12.12.2006 6:10pm
Hattio (mail):
Remember, it's not just felons who can no longer own firearms. It's also anyone convicted of a crime of domestic violence (as defined under federal law). And given how broadly crimes of domestic violence are defined, that potentially effects a lot of people. But it gets worse. It's also a crime to own a gun if you are under a restraining order and you had a chance to answer the charges. These DV provisions sweep up a lot of people that the felony law provisions don't.
12.12.2006 6:11pm
PersonFromPorlock:
Jeff Leyser:

...But in the modern age, where the government has bombers, fighters, tanks &hand grenades versus the citizen's pistols &shotguns, how does this right protect the citizenry? And if it doesn't protect us, what good does it do?

Jeff, disarmed people are at the mercy of any lout with a rock, so they become dependent on government for protection. Big-government types, whether Republican or Democrat, favor gun control precisely because it encourages this dependency.

Armed people, having a defense of their own, are a lot less prone to buying into big government. Although it's doubtful they could prevail against a modern military, they are unlikely to give government so much power that prevailing would be necessary.
12.12.2006 6:12pm
PersonFromPorlock:
Jacobus:

yikes, that's an awfully unsupported sounding "fact."

Personal experience as a sometime carrier, also supported by the rarity of legal carriers shooting in anger; either legal carriers are saints to begin with or something makes them very patient!
12.12.2006 6:18pm
L. J. O'Neale (mail):
I suggest that the "paid his debt to society" is a conceptually incorrect model for viewing the rights of a felon. Felons are stripped of certain rights because the commission of certain defined acts with the requisite criminal intent is deemed to demonstrate that they are persons who are unfit for, and have implicitly renounced, those rights. If it were a true "debt" situation, one could voluntarily enter prison for, say, five years, and would then be free to commit any crime having a maximum five year sentence - "society" would owe a "debt" to that person. Perhaps he/she could commit a lesser crime - how would "society" make change?
12.12.2006 6:21pm
Beerslurpy (mail) (www):
Nobody, even constitutional rights are subject to policy considerations- the level of protection for the right determines the threshhold at which policy concerns justify government action.

As I pointed out in the post above yours, even strict scrutiny permits some level of government interference with a right. It just has to be a compelling interest, with the interference narrowly tailored to serving that interest without otherwise infringing upon the right.
12.12.2006 6:26pm
Mark Buehner (mail):
Huzzah for the right to wonder what nutjob that you cut off in traffic is legally carrying with the gun handily in plain view.

But you're ok with them operating a two thousand pound machine that reaches speeds of 100 miles an hour and routinely passes within inches of school buses, ambulances, crosswalks,etc. Interesting. Wanna compare many people are victims of vehicular homicide each year compared to firearms on the road?
12.12.2006 6:43pm
JunkYardLawDog (mail):
Nobody,

*Steve* in your example should have gotten the death penalty and been executed. Then no need to consider his post release pamphleteering or desires to own a gun. We should just give somebody a couple bucks to beat *Steve* to death with a baseball bat and then make his surviving family members pay for the bat and the labor involved.

Says the "Dog"
12.12.2006 6:52pm
Clayton E. Cramer (mail) (www):

After his arrest gets thrown out, he goes to a gun shop to buy a handgun to protect himself and his family. The gun shop owner informs him that he can't buy a gun because he's a convicted felon.

My question: assuming that the second amendment guarantees the right of some individuals to keep and bear some arms, what is the constitutional argument (under the 2d amendment or some other constitutional provision) for denying those rights to certain individuals on the basis of their having been convicted of a crime?
I think there's a legitimate argument for denying a convicted felon the right to keep and bear arms--but I think the same is true for First Amendment rights also. Remember that a felony at the time the Bill of Rights was being adopted was a pretty serious crime. At least one of the distinctions between felonies and misdemeanors was that felonies were at least theoretically capital crimes. When reading through Colonial Pennsylvania newspapers, I would often see people executed for murder, but sometimes they would be executed simply for "felony." They didn't identify which one, but I guess that was enough.

The notion that rights were unlimited and could not be taken away, even for life, would have been quite confusing to the Framers, who had certain notions of what citizenship meant. For example, the 1777 Test Act of Pennsylvania declared "whereas allegiance and protection are reciprocal, and those who will bear the former are not nor ought not to be entitled to the benefits of the latter" the Act specifies (on pages 112-113) that all white males refusing to take the oath "shall during the time of such neglect or refusal be incapable of holding any office or place of trust in this state, serving on juries, suing for any debts, electing or being elected, buying, selling or transferring any lands, tenements or hereditaments, and shall be disarmed by the lieutenant or sub-lieutenants of the city or counties respectively." There are similar laws in Virginia and some other colonies. My book Armed America hitting bookstores next month discusses this.
12.12.2006 6:59pm
Clayton E. Cramer (mail) (www):



in fact people who go legally armed tend to be very careful not to lose their tempers


yikes, that's an awfully unsupported sounding "fact."
You might start by asking the people that initially opposed changing the law, such as Harris County District Attorney John B. Holmes, who predicted that they would need to add another grand jury to handle all the shootings that were going to result--and a few months later, admitted that he was wrong about this, and used the expression "eating crow" to describe his feelings. Ditto for the Florida Sheriffs Association lobbyist, who admitted that the expected problems didn't develop. And the Ada County Sheriff, here in Boise, who initially opposed it, but is now neutral.

The gun control groups have tried very hard to find a bunch of examples of concealed weapon permit holders murdering people with their guns. They have found a very few--and very few of those cases fit the "lost his temper, drew his gun" scenario. At best, they suggest that concealed carry permit holders are committing lots of murders, but somehow getting away with it, because the police never arrest them for these murders.
12.12.2006 7:11pm
frankcross (mail):
DK: I don't see where you get the "civilized warfare" condition from the original meaning of the 2nd Amendment.

And I don't see why nuclear weapons (or RPGs, etc.) would not qualify as civilized warfare. They are certainly modern implements of warfare. The 19th century cases use the term to rule out concealed weapons and would seem to support a concealed carry ban.
12.12.2006 7:17pm
English teacher:
A bit off topic, but I have a federalism/second amendment question, and the VC seems like a group of folks who might have an answer:

Current federal law prohibits a person from purchasing a gun in any state except where he is a resident. Because the Second Amendment has never been incorporated, it doesn't apply to the states. Therefore, the legislature of a state that has no provision for the right to bear arms in its state constitution can enact a law prohibiting the sale of some, or even all, firearms. Because of the federal law prohibiting out-of-state purchases, this effectively prohibits residents of that state from purchasing some or all firearms, even if they NEVER bring those firearms into their home state. For example, a person could belong to a gun club in another state that provides secure storage facilities. Thus, a state legislature can make it impossible for its residents to do something out-of-state that is completely legal in that other state.

For this reason, I just don't understand how the federal requirement for purchasing in your own state withstands constitutional scrutiny. It is a mechanism for a state legislature to control what happens in a location where it has no jurisdiction. Is there a simple answer to this question that I am missing?
12.12.2006 7:32pm
Clayton E. Cramer (mail) (www):

DK: I don't see where you get the "civilized warfare" condition from the original meaning of the 2nd Amendment.
The "civilized warfare" test is wrong on several different levels, but is primarily focused on a belief that the right to keep and bear arms was limited to keeping the government afraid of the people. See Aymette v. State (Tenn. 1840). While this might have been true with respect to the Tennessee Constitution's RKBA provision, the Aymette court provided no evidence to support that position.

Understanding the decisions of this period without the context of the struggle over dueling is pretty difficult. See my book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger, 1999) and in less detail, For the Defense of Themselves and the State (Praeger, 1994).

And I don't see why nuclear weapons (or RPGs, etc.) would not qualify as civilized warfare. They are certainly modern implements of warfare. The 19th century cases use the term to rule out concealed weapons and would seem to support a concealed carry ban.
"Arms" in the sense that they are used in the Second Amendment meant small arms. A grenade might well qualify; there are newspaper ads of the time offering "hand grenadoes" for sale. (Being as they were filled with black powder, they were probably closer to a modern pipe bomb than a TNT-stuffed hand grenade.)

Nuclear weapons, however, aren't really "small arms" in any sense that the Framers would have understood. If you showed up at the Constitutional Convention with a Glock, or an M-16, everyone would have been very impressed, but these would be recognizably a "small arm." Sure, the rate of fire is higher, and the accuracy is somewhat better (and I emphasize "somewhat" for a reason), but there is less functional difference between a pepperbox of 1789 and a Glock 21 than there is between a hand-operated printing press and a modern newspaper printing plant.

On the other hand, a nuclear weapon--even a Hiroshima-sized weapon--is many orders of magnitude more destructive than even the most fearsome battleship of the day--or even a fleet of them.
12.12.2006 7:41pm
Clayton E. Cramer (mail) (www):

Current federal law prohibits a person from purchasing a gun in any state except where he is a resident.
Handgun. I believe the contiguous state rule still allows you to buy a long gun in a contiguous state to your state of residence, provided that nothing in either state prohibits it.

Because the Second Amendment has never been incorporated, it doesn't apply to the states.
A few state supreme courts have disagreed, either striking down state laws because the Second Amendment is a limitation on state law as well as federal law, such as Nunn v. State (Ga. 1846), In re Brickey (Ida. 1902); or citing the Second Amendment with respect to determining whether a particular state law is constitutional, such as State v. Chandler (La. 1850); State v. Smith (La. 1856); State v. Jumel (La. 1858); Cockrum v. State (Tex. 1859); State v. Nickerson, 126 Mont. 157, 166 (1952).

Therefore, the legislature of a state that has no provision for the right to bear arms in its state constitution can enact a law prohibiting the sale of some, or even all, firearms. Because of the federal law prohibiting out-of-state purchases, this effectively prohibits residents of that state from purchasing some or all firearms, even if they NEVER bring those firearms into their home state. For example, a person could belong to a gun club in another state that provides secure storage facilities. Thus, a state legislature can make it impossible for its residents to do something out-of-state that is completely legal in that other state.
Yup.

For this reason, I just don't understand how the federal requirement for purchasing in your own state withstands constitutional scrutiny. It is a mechanism for a state legislature to control what happens in a location where it has no jurisdiction. Is there a simple answer to this question that I am missing?
Yes, and that is that judges today seldom actually follow the Constitution and the law on matters that really matter to them--like disarming the riff-raff (that's you and me).
12.12.2006 7:51pm
jdkjr:
Regarding a felon's 2d Amendment Rights:

If there is a process, under the 5th and 14th Amendments, that suffices to deprive someone of life, liberty, or property, certainly there is a process that is sufficient to deprive one of their 2nd or 4th amendment rights. That process for a felon was their trial. The punishment for a conviction extends beyond a temporary (or permanent) loss of liberty. It can extend to warrentless searches (in prison or during probation) or deprivation of gun rights (in prison or otherwise). This extends as well to other unenumerated natural rights, i.e. right to travel.

This leads to a related question: What is the difference between these rights and rights that no process is sufficient to deprive? Or do such untouchable rights exist?
12.12.2006 8:16pm
Clayton E. Cramer (mail) (www):

This leads to a related question: What is the difference between these rights and rights that no process is sufficient to deprive? Or do such untouchable rights exist?
Probably not. I recall that one of the tax resisters, a guy named Gordon Kahl, was convicted of some tax-related federal offense. Upon his release from prison, a condition of probation was that he was not allowed to speak about the income tax system. If convicted felons did not lose the right to exercise their First Amendment rights, I am sure that the ACLU would have filed suit on Kahl's behalf. :-) Perhaps he should have paraded around naked covered with chocolate sauce.

Instead, when federal marshals came to arrest him for delivering a speech, he got into a bloody shootout that left a number of people dead.
12.12.2006 8:24pm
Beerslurpy (mail) (www):
Just out of curiosity, what stops people who would follow the constitution from becoming federal judges?
12.12.2006 8:31pm
A. Zarkov (mail):
"But in the modern age, where the government has bombers, fighters, tanks &hand grenades versus the citizen's pistols &shotguns, how does this right protect the citizenry?"

We can learn something about the effectiveness of small arms against heavy military equipment from the history of the Battle of Stalingrad, a turning point in WWII. Soviet snipers like Ivan Mikhaylovich Sidorenko (500 kills) and Vasily Grigoryevich Zaytsev (200 kills) were tremendously effective against, and greatly feared by the German Army. German superiority in tanks and other military equipment proved ineffective against the entrenched Russian defenders. The bombed out buildings provided cover for the snipers, and the debris-strewn streets made tanks virtually useless.

Didn't the Germans have snipers too? They did, and some very good ones like Heinz Thorvald (400 kills), but the Soviets had a seemly trivial, yet important equipment advantage: a much better telescopic sight. The German scope required tools and an average of 5 trials to align the scope, while the Soviet scope had hand-operated adjustments and could be aligned in 3 trials. For this and other reasons, Soviet sniper fire was far more effective than the German.

So don't put down the effectiveness of small arms, particularly for urban warfare.
12.12.2006 8:35pm
Fuz (mail) (www):
"What's the justification (from a constitutional interpretation perspective) of denying convicted felons a (purported) fundamental right guaranteed by the constitution?"

There used to be a program that allowed convicted felons to apply to have their 2nd-amendment rights restored. IIRC, Spiro Agnew applied to that program in the late 70's. Just like there are many State programs to restore felons' voting rights. Big difference, though, voting isn't a 'natural right.'

That program was defunded by Congress during Clinton's presidency. The Federal courts will not accept motions to reinstate these rights in an effort to circumvent the defunded program.
12.12.2006 8:59pm
Robert Racansky:
Can a constitutional right to bear arms be squared with, for example, laws that would prohibit me from erecting a private nuclear arsenal in my backyard?...
[DK: The main 19th century test was "civilized warfare" weapons were ok; that is rifles, swords, etc., but not bowie knives, or other weapons associated with brawlers. In this article, I suggest updating the test to encompass ordinary police equipment (e.g., rifles, shotguns, handguns); this test would leave out nuclear weapons, etc. http://davekopel.com/2A/LawRev/19thcentury.htm.

See also "Day Dream Believers" (July 30, 2002), in which we suggested that gun-control-exemptions for police should be eliminated.

Since the police do not possess nuclear weapons, I don't see a problem with prohibiting private possession of nuclear weapons. However, something is seriously wrong when politicians want to ban semi-automatic rifles because "they're only useful for mass murderers," and then exempt the police from such restrictions.

Such an amendment may or may not affect a military dictatorship, but it would serve as a measure of protection against a Police State.
12.12.2006 9:18pm
byomtov (mail):
Zarkov,

OT, but could you elaborate? Seven hundred kills by snipers, in the context of Stalingrad, hardly seem significant.
12.12.2006 9:23pm
Rick Schwartz (mail):
I recall that one of the tax resisters, a guy named Gordon Kahl, was convicted of some tax-related federal offense. Upon his release from prison, a condition of probation was that he was not allowed to speak about the income tax system.


This is a topic that I have long argued with my deeply pro-2nd A. friends. If a felon "does his time" completely, no probation, no contact with the penal system at all, then he should have ALL his rights back.

The example that Clayton gives us here still has the man under the thumb of probation which means in many areas he still has to answer to the state, and he does have some of his rights proscribed. But what about five minutes AFTER probation ends?

Which right is not given to felons who are done with the system. The govt can't force them to testify against themselves... the govt can't wiretap them without a warrant... the govt can't barrack soldiers in their homes. Why are some rights, primarily the 2nd, more disposable than others?

Now, I have no problem with the state making every violent felony sentence a lifetime sentence, with it made clear upfront that some of it may be served outside the prison walls after that portion of the penalty is complete. If the person is still subject to the penal system, then I can see the 2nd A rights being modified. But it should be clearly stated that he is embarking on a lifetime sentence of punishment.
12.12.2006 9:41pm
John Frazer:
Clayton Cramer wrote:


I believe the contiguous state rule still allows you to buy a long gun in a contiguous state to your state of residence, provided that nothing in either state prohibits it.


Under the Gun Control Act of '68 you could only buy long guns in contiguous states, and only if the buyer's state specifically allowed it. (About 30 states still have obsolete laws on the books to do so.)

Since the Firearms Owners' Protection Act of 1986, you can buy a long gun from a licensed dealer in any state, as long as the transaction complies with the laws of both the buyer's and the dealer's states.

Congressman Phil Gingrey (R-Ga.) introduced a bill in this past Congress to allow interstate sales of handguns, under the same conditions.
12.12.2006 9:53pm
A. Zarkov (mail):
"OT, but could you elaborate? Seven hundred kills by snipers, in the context of Stalingrad, hardly seem significant."

I simply named two of the many Soviet snipers at Stalingrad (which included women), and as a parenthetic remark, I gave their war totals of kills to give some idea of the performance of a top sniper.

According to Wikipedia Soviet snipers killed 40,000 Germans in WWII. Eyeballing Soviet kill data for top Soviet snipers it looks like 300 is a good number. If we assume these are "3-sigma" shooters and the kill-number is Poisson distributed then, I get about 240 as the average Soviet sniper kill for the whole war. Vasiliy Zaitsev had a total of 400 kills with 150 at Stalingrad. Lets assume they got half their war total at Stalingrad or about a 100. If they had only a 100 average snipers at Stalingrad, then they would have killed 10,000 Germans there with sniper fire there. Very approximate, but it gives a conservative estimate.
12.12.2006 10:42pm
A. Zarkov (mail):
According to a review of the book "Notes of a Sniper," the Red Army snipers killed 1,200 Germans at Stalingrad. That would mean they had very few snipers at Stalingrad, something on the order of ten. Nevertheless since they mainly killed officers, sergeants, machine gunners and artillery spotters, they had a big impact on the German attackers.
12.12.2006 11:09pm
kdonovan:
Matt Tievsky asks 'Hm, why call this a "victory for the Second Amendment"? I saw that title and expected to learn about a case recently decided by a federal court. Isn't it simply a victory for the right to bear arms?'

In my view the 2nd Amendment will probably either be enforced poltically or not at all - judical rulings are neither a necessary nor sufficient condition to secure rights.

Kevin
12.12.2006 11:17pm
English teacher:
I'm aware of the exception for long gun sales in contiguous states, and of the bill that John Frazer refers to. I did not include these in my original question because both require that the purchase "comply with the regulations of the home state." Therefore, neither of these exceptions changes the basic question I was asking: How does the federal law that requires in-state purchase pass muster with the concept of federalism, since it allows state legislatures to regulate activities that occur outside that state?

Mr. Cramer's reply was that judges don't always follow the constitution, but I'm not aware of any instance where a judge has ruled on this. So, I'm still confused. (If there is such an opinion, I'd like to read it.)

I can appreciate that a legislature can make laws on what happens within the state. Therefore they could say that a resident who purchased an assault rifle out of state could not bring it back. But it seems to me that the federal law is out of bounds since it distinguishes between what is legal for a resident of, say, Pennsylvania, to do in Pennsylvania and legal for a resident of New Jersey to do in Pennsylvania.

Are there any other instances of a federal law having this effect of constraining out of state activities? I'm no contitutional scholar --just a confused citizen-- so there may be something important that I'm missing here.
12.12.2006 11:20pm
Clayton E. Cramer (mail) (www):

Just out of curiosity, what stops people who would follow the constitution from becoming federal judges?
Law school? :-) No, there are judges that seem to take the Constitution seriously, but I'm not impressed with a lot of the decisions the Supreme Court has made in recent years, following stare decisis when convenient, and using false history when it suits their political ends (Lawrence v. Texas, for example).

Mr. Cramer's reply was that judges don't always follow the constitution, but I'm not aware of any instance where a judge has ruled on this.
There might not be. You want to be a test case?
12.12.2006 11:34pm
faux facsimile (mail):
Back to the question of what sorts of arms are protected by the 2nd Amendment, why is there a limitation to 'small arms'?

Perhaps I am being naive, but I can't think of any obvious examples of 'non-small' arms in a 1789 context.

Thanks.
12.13.2006 12:00am
Kevin P. (mail):
Congratulations to the good citizens of Ohio, particularly of Columbus.
12.13.2006 12:21am
David M. Nieporent (www):
Perhaps I am being naive, but I can't think of any obvious examples of 'non-small' arms in a 1789 context.
Cannon, just to state one obvious one.
12.13.2006 4:31am
John Mahler (mail):
In regards to whether a nuclear weapon is covered by the second amendment, we can go back to English Common law. This was the basis for much of the framers thinking.

English common law held that the right to bear arms was universal, but like most rights it had an outer limit. This limit included what were then termed 'Infernal Devices'.

At a certain level of destructive power, the danger to bystanders becomes too great, and in the conflict between their right to 'Life and Liberty' and your right to 'Keep and Bear Arms' a line is crossed. This is true of all Rights, including freedoms of Speech (Libel/Slander laws), Assembly (permits for large groups required in public spaces), Religion (Human sacrifice is not ok, Peyote is), etc.

It's part of the Judiciary's function to strike this balance as best it can.

John
12.13.2006 8:07am
DJR:
Regarding ex-cons:

> the govt can't wiretap them without a warrant...

On the contrary, see the Supreme Court's recent case, Samson v. California. A state can condition a felon's release on anything, including parolee status for life, and parolee status can include "consent" to suspicionless searches. The problem with your analysis is that you assume there is some fixed debt to society that can be repaid so that one is eventually free and clear. But the state gets to decide that equasion, and can decide that having comitted a particular type of crime, your debt is never repaid, because even if the immediate punishment is complete, we now know that you are a wife-beater or a child molester, or whatever, and we now have to keep an eye on you, so you don't get guns, we don't trust you to vote or hold security clearances, and we will search your ass whenever we feel like it.
12.13.2006 8:38am
rbj:
The First Amendment reads, in part "Congress shall make no law . . . abridging the freedom of speech. . ." yet there are laws against child pornography, disclosing national secrets, or even saying the seven dirty words via broadcasting. So there is an outlier even with speech. I'd argue that nukes fall into this category, something where the utilitarian benefit to the individual is so limited that the negatives outweigh any positive. (not to say that I agree with the FCC's actions).

And aren't felons who have done their time (including restitution &parole) still prohibited from consorting with other known criminals?
12.13.2006 8:44am
htom (mail):
Firearms rights should be restored with voting rights. If a State automaticly restores voting rights upon release from prison, then it should do the same with firearms rights.

I have not heard of it happening yet, but I can easily imagine a firearms owner becoming the subject of a restraining order and before he learns of this, he's arrested for violating it because of his possession of a firearm. "Mr. X, your wife and the county prosecutor have filed an order of protection against you, which the court has granted." "Thank you, officer." "Mr. X, you have a concealed carry permit. Do you have a handgun on your person?" "Yes." "You're under arrest for violating that order of protection."
12.13.2006 9:09am
Mark Buehner (mail):
Back to the question of what sorts of arms are protected by the 2nd Amendment, why is there a limitation to 'small arms'?


United States vs Miller


In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly 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.


One would assume a nuclear weapon to fall in the same catagory. An army where every soldier had a nuclear weapon wouldn't work.
12.13.2006 9:18am
Clayton E. Cramer (mail) (www):

The First Amendment reads, in part "Congress shall make no law . . . abridging the freedom of speech. . ." yet there are laws against child pornography, disclosing national secrets, or even saying the seven dirty words via broadcasting. So there is an outlier even with speech. I'd argue that nukes fall into this category, something where the utilitarian benefit to the individual is so limited that the negatives outweigh any positive.
Here's a relevant example. There was some regulation of the storage of gunpowder in some of the bigger cities in the Colonial and Revolutionary period. Usually there was a limit of five or six pounds of gunpowder that could be stored in a business or residence within a city without a license, which specified conditions of storage. Similarly, Boston prohibited the leaving of loaded firearms, grenades, mortars, and cannon in homes, because of the substantial risks if a house fire broke out. These were public safety measures, where the risks were substantial, and the actual damage that it did to the individual's right to bear arms was pretty limited. You can find more examples like this in my forthcoming book Armed America, which will be on bookstore shelves in mid-January.
12.13.2006 9:31am
Clayton E. Cramer (mail) (www):

Firearms rights should be restored with voting rights. If a State automaticly restores voting rights upon release from prison, then it should do the same with firearms rights.

I'm not keen on restoring either voting or firearms rights to violent felons, but there is some logic to what you say. Voting rights and the right to bear arms are linked because both are signifiers of citizenship. When free blacks lost the vote in American colonies, it was often the same year that they lost the right to own firearms. You can see something of this in Cooper and Worsham v. City of Savannah (Ga. 1848):

Free persons of color have never been recognized as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office.

With regard to this:

I have not heard of it happening yet, but I can easily imagine a firearms owner becoming the subject of a restraining order and before he learns of this, he's arrested for violating it because of his possession of a firearm. "Mr. X, your wife and the county prosecutor have filed an order of protection against you, which the court has granted." "Thank you, officer." "Mr. X, you have a concealed carry permit. Do you have a handgun on your person?" "Yes." "You're under arrest for violating that order of protection."
I believe that this is very nearly the situation in USA v. Emerson (5th Cir. 2001).
12.13.2006 9:36am
TWAndrews (mail):
I'm typically a very strong support of 2nd amendment rights, but I really don't like the state government invalidating local ordinances. No more than I like federal laws trumping state ones. I think individual communities ought to be given great leeway in determining what laws they wish to live under.
12.13.2006 10:02am
Tim in PA (mail):
Mark, by the time US vs Miller was decided, Miller had already passed away, if I recall correctly. Note the part, "in the absence of any evidence" -- it isn't that there wasn't any evidence that short barreled shotguns and rifles had no military utility, but that there was no one arguing this position on Miller's behalf.

(on the contrary, even back then short barreled long arms, especially shotguns, had military utility; even moreso today, look at the popularity of 10.5" and 11.5" barreled versions of the M16, not to mention the standard 14.5" M4)
12.13.2006 10:09am
rosignol (mail):
I can appreciate that a legislature can make laws on what happens within the state. Therefore they could say that a resident who purchased an assault rifle out of state could not bring it back. But it seems to me that the federal law is out of bounds since it distinguishes between what is legal for a resident of, say, Pennsylvania, to do in Pennsylvania and legal for a resident of New Jersey to do in Pennsylvania.

Congress explicitly has the power to regulate 'interstate commerce' as it sees fit. The term (and the relevant clause) have been abused beyond belief for several decades now, but if you can come up with an example of how a resident of NJ buying something in Pennsylvania isn't interstate commerce- in the original sense, if you like- I'd be interested in hearing it.
12.13.2006 10:17am
Mark Buehner (mail):
Tim, agreed, Miller never presented a defense and the prosecution claimed sawed-off shotguns weren't used in military contexts, which is absurd.

The court may have been under a misapprehension of the specifics in Miller, but their ruling still provides guidance. It seems like a pretty reasonable line to take- militia members show up with an infantrymans weapons, not tanks, not WMDs. Like it or not, the court has construed the 2nd Amendment as intimately tied to the militia context, and that doesnt seem likely to be uncoupled any time soon. The fact that the Second hasnt been incorporated by now is simply absurd, not to mention untenable for anyone interest in logic or consistancy.

RPGs and the like are a good question though. I'd imagine the argument would go that since only designated troops carry heavy and light machine guns, mortars, and grenade launchers, it would be assumed that those weapons systems are equivalent to tanks etc and hence not a basic rifleman's personal weapons. Sawed-off shotguns might fall in this camp. It would still be hard to proscribe hand-grenades themselves in this context.
12.13.2006 10:26am
Ken76 (mail) (www):
I am generally sympathetic to home-rule arguments, TWAndrews, but I must disagree in this case. The Constitution does not grant rights, it enumerates them. Paraphrasing John Adams, "You have rights antecedent to any earthly government...."

Therefore, the local government has no more authority to deny me a fundamental human right (effective self-defense against crime and tyranny) than does the state government, federal government, or Emperor Norton I. Local law ought to obtain, but no law ought to abridge fundamental human rights in an unjust fashion...and it doesn't get more unjust than the mayor of Cleveland trying to tell me I can't protect my family, while hiding behind the armored skirts of a phalanx of armed bodyguards paid from my taxes (back when I lived in Cleveland).

I voted for Marc Dann last month specifically because he was better on gunowners' rights than was Betty Montgomery. Bless him for being as good as his word.

Finally, the timing is amusing. I can't figure it as anything but the legislature laying a smackdown on Governor Emptysuit. Both governor-elect Ted Strickland and Ken Blackwell specifically pledged to sign HB347 during the campaign, though I suppose I don't quite trust Strickland on it, either.
12.13.2006 10:47am
Rick Schwartz (mail):
A state can condition a felon's release on anything, including parolee status for life, and parolee status can include "consent" to suspicionless searches. The problem with your analysis is that you assume there is some fixed debt to society that can be repaid so that one is eventually free and clear. But the state gets to decide that equasion, and can decide that having comitted a particular type of crime, your debt is never repaid, because even if the immediate punishment is complete, we now know that you are a wife-beater or a child molester, or whatever, and we now have to keep an eye on you, so you don't get guns, we don't trust you to vote or hold security clearances, and we will search your ass whenever we feel like it.


This isn't "contrary" to what I was arguing, this is what I was arguing for (not that I want them to do so), but this is the only way that I can see a state legtimately keeping a person banned from certain rights. Make it clear upfront that it's a lifetime sentence no matter which portion you spend behind bars.
12.13.2006 11:34am
big dirigible (mail) (www):
"I'm not keen on restoring either voting or firearms rights to violent felons."

The concept of a "violent felon" is subject to abuse. In Massachusetts, prior conviction for "failure to report a hotel or motel fire" apparently makes one a violent felon, and is suffient cause to deny a firearms license in perpetuity.

I don't think that's what popular imagination has in mind when the term "violent felon" is tossed around.
12.13.2006 12:10pm
The Sanity Inspector (mail) (www):

Huzzah for the right to wonder what nutjob that you cut off in traffic is legally carrying with the gun handily in plain view. Ohio is now saved.


Whence comes the proverb, "An armed society is a polite society."
12.13.2006 12:13pm
DougRob:
One question comes to mind. If thirty percent of the passengers on the flights on 9/11 would have been carrying handguns do you think that maybe the World Trade Center would still be standing and that we would not be planning a memorial for the hero's of flight 93?

Ohio needs to be a model for the way to combat terrorism.

Doug
12.13.2006 12:16pm
big dirigible (mail) (www):
"Perhaps I am being naive, but I can't think of any obvious examples of 'non-small' arms in a 1789 context."

The most powerful weapon of the day was an armed ship. The vast majority of armed ships were privately owned, if only due to the owners' reasonable interests in discouraging piracy. But these defensive weapons could also be used offensively. Hence the privateering commission and the Letter of Marque. These allowed the private armed ship to fire those guns at foreign nationals and others, and legally seize property, both afloat and ashore. Without the government paperwork (the commission or letter) these acts would be brigandage or piracy. But the paperwork had nothing to do with the weapons themselves, or their use in defense, which were apparently regarded as routine matters of ship operation and not fit for government regulation.

The US government in those days not only allowed these private armed ships, they counted on them to cause unbearable damage to both France (the Quasi-War of 1798-1800) and to England (the War of 1812). And they did so.

So, since the text of the 2nd Amendment says nothing at all about being limited to "small arms" - although of course it does reference "the militia" - it's not obvious that the authors of the 2nd had anything like our modern concept of "small arms" in mind.
12.13.2006 12:23pm
dick thompson (mail):
I find it funny that of the cities and countries that have snatched guns from citizens, New York is almost the only one that has lower crime rates involving guns. Right now Britain is going through a huge increase in crimes involving guns as is Boston in this country. I thought taking the guns was supposed to result in lower crime rates involving guns.
12.13.2006 1:59pm
Mark Buehner (mail):
Same with Canada and Australia.
12.13.2006 3:38pm
arbitraryaardvark (mail) (www):

Nobody asked: One more question:
If I have a constitutional right to keep and bear arms, but the US Marshals at the local federal courthouse won't let me into the building while carrying my handgun, are my constitutional rights being violated? Can the government deny me access to a government service (entry into federal building) only on the condition that I effectively waive a constitutional right?

Let me make your question less hypothetical.
I learned this morning from the Indiana Law Blog that the Indiana State Capitol is planning to ban guns, except for members of the legislature. At a hearing friday nobody spoke against it. I have email to try to find the address to submit comments. It's not the gun ban I object to so much as the metal detectors and searches.

I have filed suit and have a first hearing tomorrow in case about whether a person who doesn't want to be searched has a right to enter city hall to cast his provisional ballot.
I'm not trying to win on second amendment grounds. I don't even expect to win based on its being a suspicionless unwarranted search. My goal is to try to win by pointing out that the current searches are done in an arbitrary and capricious manner that is unreasonable.
I will probably lose the case, not because I'm wrong, but because I'm an inept lawyer and the taxpayer-funded lawyers I'm up against are pretty good. It's mostly a case about whether my client has to show a government-issued ID in order to vote.
If I can get the address to send comments to, I will plan to post it here.

I don't know whether the government can require us to insure our backyard nukes. Vinge's the Peace War is a fictional portrayal of the usefulness of the backyard nuke to the local militia. I don't know what the standard of review should be for the second amendment.

The bill is a victory for the second amendment,and not just gun rights, because it contains a legislative finding that the right is fundamental, applies in Ohio, and is enforceable with attorney's fees. That sort of legislation is well worth copying. No reason fundamental rights can't be protected by legislation and attorney's fees as well as other checks and balances.

English teacher: your question is reasonable one. The federal courts currently tend not to enforce the second amendment, so we tend not to bring such cases. The DC handgun ban case bears watching. Because congress has acted, we can't use a reverse commerce clause argument, which is the usual route to challenge not being able to do things in one state that you can do in another.
12.13.2006 6:33pm
arbitraryaardvark (mail) (www):
Here are the filings in the DC second amendment case, via howard bashman.
12.13.2006 6:46pm
Captain Holly (mail):
According to a review of the book "Notes of a Sniper," the Red Army snipers killed 1,200 Germans at Stalingrad. That would mean they had very few snipers at Stalingrad, something on the order of ten. Nevertheless since they mainly killed officers, sergeants, machine gunners and artillery spotters, they had a big impact on the German attackers.

I would expand on this. The advantage of snipers is not how many soldiers they kill, but who they kill. In the mostly-conscripted armies of WWII, taking out a single sergeant or lieutenant would affect the combat effectiveness of at least 30-40 troops because the lower ranks usually did not have the training or authority to carry on alone.

The same conditions existed in Saddam's Army: No one under the rank of colonel had any real authority to do anything, so by killing the commanding officer of a unit, or even simply disrupting his communications an entire regiment, brigade or even division could be paralyzed for hours.

There is also a psychological effect on the other troops: Seeing your comrades drop suddenly from a sniper makes you keep your own head down. Instead of focusing on the mission, you're focusing on not getting shot. In Viet Nam, US Marine sniper Carlos Hathcock and his assistant kept an entire company pinned down in a rice paddy for two days by just picking off the commander and those few troops who got up and tried to run away.
12.13.2006 7:22pm
byomtov (mail):
Zarkov, Captain Holly,

Interesting stuff about snipers. Thanks.
12.13.2006 7:39pm
Achillea:
Huzzah for the right to wonder what nutjob that you cut off in traffic is legally carrying with the gun handily in plain view. Ohio is now saved.

"The bill also removes the requirement that concealed carry permitees must, when driving, keep the handgun in plain view in the car ... " So, if it's the notion of handguns out in sight of god and everybody that fills you with such dread, you should be turning handsprings of joy right now. (Please be sure to move the furniture out of the way -- safety first, you know).
12.13.2006 11:04pm
Beerslurpy (mail) (www):
Link to "infernal devices" in english common law? Can't find anything.
12.14.2006 12:26am
JustAGuest (mail):
Regarding the definition of "arms" in the Second Amendment: If you review the writings from that era, especially correspondence amongst the generals and other officers and between the army and Congress, you will find that generally speaking "arms" typically referred to long arms such as rifles and muskets and occasionally to blunderbusses (i.e. shotguns), sometimes to pistols, sometimes to ammunition and sometimes to knives and swords. What we would now call "light weapons" and artillery were more generally referred to then as "cannon", although ordnance, mortar, field piece and artillery were terms also used. Here's actual text from the US Congress, May 4, 1798: "The President of the United States hath notified the House of Representatives that he this day approved and signed the bill, entitled "An act to enable the President of the United States to procure cannon, arms, and ammunition, and for other purposes;" Here, "cannon" and "arms" presumably denote two different things. See memory.loc.gov

Other examples: Letter from George Washington to President of the Convention of New Hampshire, Morristown, 1777 Jan. 23. "the Enemy" ... "will make themselves charters of our magazines of Stores, Arms &Artillery." Letter from George Washington to Henry Knox, 1781 February 16, "Applications have been also made to the Court of France for a large supply of powder, arms, heavy cannon, and several other essential articles in your Department." Letter from Henry Knox to George Washington 1782 March 10, "In my opinion we could spare some small Arms or [struck: small cannon] [inserted: field pieces]". (The above are from the letters of George Washington.)

I emphasize this terminology was only generally the case. However, it did occur often enough that an argument can be made that the "arms" noted in the Second Amendment are, and are limited to, small arms, i.e. rifles, shotguns, pistols, knives, etc. Refer to the papers listed in footnote 167 of Halbrook for additional details.

Regarding the argument that pistols (i.e. handguns) should not be considered as "arms" because they allegedly were not used in the Revolutionary War, you can, as just one example, refer to our government's own site at: nps.gov which says "Cavalrymen and officers used pistols."
12.14.2006 10:10am
JustAGuest (mail):
The above comments are in response to big dirigible's comment [So, since the text of the 2nd Amendment says nothing at all about being limited to "small arms" - although of course it does reference "the militia" - it's not obvious that the authors of the 2nd had anything like our modern concept of "small arms" in mind.] Since I am not a mind reader, especially one that can read the minds of the dead, I do not know what the authors of the Second Amendment really had in mind when they used the terms "arms". I can however look at the writing from that period and see how the term "arms" was used then and based on that, IMHO, "arms" in the Second Amendment most likely refers to small arms and not to cannon, nuclear weapons, etc. Of course the courts could rule that "the people" in the Second Amendment refers only to the people living at the time and since they're now all dead the Second Amendment no longer has any effect. Given the random number generator type of court rulings I've seen over the past decades that would not surprise me.

I must also add that the Second Amendment does NOT reference "the militia". The Second Amendment references "a ... militia". This is consistently overlooked by those debating the meaning of the Second Amendment. "A" is the indefinite article, meaning something general, "the" is the definite article, meaning something specific. Grammatically speaking "the militia" is a subset of "A well regulated Militia" and people in "the militia" are drawn from "A well regulated Militia". The distinction between "a" something and "the" something is not trivial. Refer to Blacks's Law Dictionary (6th ed. 1990) "In construing statute, definite article `the' particularizes the subject which it precedes and is word of limitation as opposed to indefinite or generalizing force `a' or `an'." There have also been several court rulings which discussed the difference between the indefinite article "a" and the definite article "the" and their implications in the interpretation of laws. If I can re-find those cases I will post a link.

"State" is used the same way, as something general. If you believe that "State" in the Second can only refer to a state of the US, erg. Virginia, Pennsylvania, etc. then does "State" in "foreign State" also only refer to a state of the US? The preamble to the Second is simply making a declarative comment that an armed populace is necessary to secure liberty (against foes both internal and external) in a state having political freedom. The Second Amendment is precisely what the preamble to the Bill of Rights says, declarative and restrictive clauses.
12.14.2006 10:44am
stiv (mail):
wasn't there a case around the time of the first world war where someone argued he had the right to a fighter plane, but it failed on reasoning that such weapons (and I assume this would include wmd) are beyond the scope of a militia, more the provence of an army? cannot remember the cite unfortunately
12.14.2006 7:34pm