General Question

deadleaf's avatar

Are gun laws unconstitutional?

Asked by deadleaf (212points) May 31st, 2010

I have seen there are 2 regulatory requirements, MA (Massachusetts) and CA (California), respectively; Are required for those states when purchasing weapons. It’s also more difficult to get a weapon in other states. Are these rules, regulations, laws, and bans illegal? I’m no pro in the the 2nd amendment.

“Right to keep and bear arms” ... Is this accurate?
show me some lurve

Observing members: 0 Composing members: 0

35 Answers

lillycoyote's avatar

Well, maybe yes, maybe no but does anyone want the “right to bear arms” to be totally unregulated and unrestrained? Should/do we all have the right to possess tactical nuclear weapons if we want to? And the entire amendment reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” I’m not a lawyer and not an expert in constitutional law certainly, but it doesn’t just say “the right of the people to keep and bear Arms, shall not be infringed.” There was an intention behind it.

gasman's avatar

Two years ago (June 2008) the US Supreme Court struck down the District of Columbia’s handgun ban (Story), citing the 2nd Amendment’s “right to gun ownership.”

I don’t understand this. Everyone agrees the wording of the 2nd A. is ambiguous and the founding fathers’ intentions may have been lost in the mists of time. But if they unconditionally meant that “the right of the people to bear arms shall not be infringed,” then why the preamble to the amendment—the part about a well-regulated militia? What is the purpose of that first clause?

I’m usually as much a libertarian as the next guy—government should not intrude where it doesn’t belong. But firearms are so exceptionally dangerous (able to instantly kill covertly at a distance) that only law enforcement and the military should be authorized to carry them. People who keep a gun at home for self-defense are more likely to get shot by their own weapon than to successfully fend off an attack [citation needed].

None of that explains why shootings are so much more common in America than in other countries, whether guns are legal or not. See Bowling for Columbine by Michael Moore.

filmfann's avatar

At the birth of this country, the founding fathers were worried about the creation of a standing army. They felt this would make us a more war-like state, and thought the best way to avoid the creation of a standing army was the employment of State Militias. This would be ordinary people who could be called upon by their state to handle sudden aggression upon us.
To ensure this was a viable option, they wrote the 2nd amendment, preventing States from outlawing guns.
In 2008, the Supremes ignored the first part, and jumped to the meat of the Amendment, which was silly, because that was where the justification for it is. I encourage you to read the decision, because Scalia resorts to name calling against the opposing justices.

cheebdragon's avatar

Technically “the right to bear arms” does not apply to you & I, however, I do support the NRA. If my life or property is in danger, I’m sure as fuck not going to wait around for the police to show up, because I learned my lesson the first time….

YARNLADY's avatar

Any time a question abridges the words that are in the constitution to the few that seem to make their point, I see a question that is technically flawed.

bobloblaw's avatar

You have to consider a few things. First, is the law in question a federal law? In the situation you described, no, the gun laws of CA & MA are not federal laws.

Second, is this particular right incorporated? Incorporation is the process by which the Bill of Rights is applied to the states via the 14th amendment (Note: not all Constitutional rights are incorporated). The answer to this question, when it comes to guns, is a bit hazier. There hasn’t been that many cases about guns that have gone up to SCOTUS so there isn’t much guidance. Even the latest case, DC v. Heller, does not address the 2nd Amendment. At most, it says:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Even this was a footnote in the case. THUS, while most states probably have a 2nd Amendment equivalent in their constitutions, SCOTUS has yet to extend the Federal 2nd Amendment (regardless of how you wish to interpret it) to the states. So, those laws you’re asking about? They’re most likely legal.

CaptainHarley's avatar

There has always been some question about whether the 2nd Amendment applied only to the Federal Government, or to the states as well. As I understand it, there are currently four cases bearing on this issue making their way to the Supreme Court, which is expected to decide that the entire Bill of Rights applies to the states and municipalities as well as to the Federal Government. It does seem logical that if the other rights stipulated therein apply to the states, the 2nd Amendment should also apply to the states.

bobloblaw's avatar

Oops, I meant to say that DC v. Heller doesn’t really address the issue of incorporation.

Nullo's avatar

You could certainly make the case that they are. The so-called “assault weapons” ban probably was.

@cheebdragon The Constitutionally-inferred militia is made up of everyday citizens. You raise the militia, deal with the problem, and then everybody goes back home. Under that system, letting the citizenry keep and bear arms ensures a certain degree of readiness (and a better response time than if you had to outfit everybody), keeps deadly force away from the central government, and saves the States the expense of outfitting its militia (guns tend to be really expensive single purchases for what they are, and it doesn’t look much prettier when you buy ‘em in bulk).

LostInParadise's avatar

Even if we assume that the Second Amendment means that everyone has a right to bear arms, that does not prevent the state from placing restrictions on the number or types of arms used. I think we can all agree that there is something wrong with people having missile launchers in their backyard.

gorillapaws's avatar

The most reasonable interpretation of the second amendment in my opinion is that the federal government can’t disarm a State’s national guard. In other words, your state has the right to it’s own militia force to fight against the federal government if it ever became tyrannical (i.e. tried to impose a coups). In our modern society, “militia” = the National Guard.

CMaz's avatar

“we can all agree that there is something wrong with people having missile launchers in their backyard.”
And we don’t.

“In our modern society, “militia” = the National Guard.”
No There is the National Guard. Then there is the militia.
As we currently see in the middle East. The National Guard is being sent over to fight. Not their original intent.

If there was a confrontation on our borders. The national guard would be going to the front to defend the Nation. The militia is there to defend the people. As a last line of defense.

The National Guard actually has a program for the militia. They can volunteer at National Guard bases. They don’t get paid, they are not given guns. The intent is back up if the Guardsmen have to move out.

LostInParadise's avatar

So far people are not stocking up missile launchers. They tend to be a bit pricey. Somewhere, though, there is a boundary between what people stockpile and what is acceptable. I do not see the need for automatics or semi-automatics and I see no problem in placing a limit on the number of guns a person purchases in a year.

deadleaf's avatar

Again, People, you are missing the point in owning firearms. It’s for PROTECTION! If your enemy has an automatic weapon, and you have a knife. You WILL LOSE. If your enemy is a sniper and you have no weapons. YOU WILL LOSE. Protection!! Protection!!! I cannot emphasize this more. BTW, I just bought myself a sig sauer p220 combat handgun. It’s beautiful.

Nullo's avatar

@deadleaf Tell that to Sam FIsher. :D

@LostInParadise It’s actually really easy for a not-a-nut to buy a lot of guns in a short period of time.
Say your buddy takes you deer hunting. You like it, so you decide to get your own deer rifle for next season. You also get a small game rifle, because they’re cheap and you can usually hunt small game during deer season. While at the gun store your eye is caught by a beautiful 9mm and you think about how your neighborhood is getting seedier.
But deer season is quite a way off. Meanwhile, you take an interest in turkey hunting, which (in Missouri, at least) requires a shotgun. Then it’s waterfowl season, and that calls for a different kind of shotgun because the one that you bought is specialized for hunting turkeys and doesn’t have a removable choke.
Around this time, you take an interest in black powder rifles…
And then you start collecting exotic and/or antique firearms, and your wish list grows like bamboo.

What’s the point, though, in limiting sales-per-year? If you intend to be criminal with your firearm, you only need one.

gorillapaws's avatar

@ChazMaz just because the National Guard isn’t behaving like a militia doesn’t mean it doesn’t qualify under the 2nd amendment. I still believe that if the federal government wanted to disarm a state’s national guard they would be prevented in doing so by the 2nd amendment—that’s it’s purpose.

Also it explicitly states a “well-regulated” militia, so a bunch of guys dicking around on the weekend won’t cut it.

Nullo's avatar

@gorillapaws The Guard came after the Amendment. Methinks that they’re not what the Founders had in mind.

YARNLADY's avatar

@deadleaf I think the biggest protesters about “the right to bear arms” are talking about defending yourself against the government, when you disagree with their laws and regulations, not about defending yourself against any so-called enemy.

Nullo's avatar

@YARNLADY No, most people who want to bear arms really do it for protection from civilian-grade threats. If gun ownership keeps the federal government honest, all the better.

@gorillapaws I read an article in an old Popular Mechanics once about what amounted to militias distilled from the hunting community that formed in the United States in the early days of World War II in response to the threat of a Japanese land invasion.
They were freelance at first, but it wasn’t long before they were organized.

gorillapaws's avatar

@Nullo The Guard is the evolution of the “well regulated militia” that the founders were talking about, just like the internet is an extension of “speech.”

Interesting point about the hunting community in WWII, In my mind whether or not such a group has the right to arms would depend on whether it meets the criteria of being “well regulated.” I’m sure someone with more knowledge of military history, regulations, and organization would probably be able to give a good interpretation of what it takes to satisfy that criteria.

Nullo's avatar

@gorillapaws I’m pretty sure that the Guard is more like the armed forces’ response to the militia, not its replacement. Like as not, the two could exist simultaneously.
Armed forces which, curiously enough (and with the exception of the Navy), are technically unconstitutional. Congress may raise an army, but must put it back when it’s done.

LostInParadise's avatar

@deadleaf , The justification for guns is to protect yourself from criminal activity, not to engage in some blood battle against “enemies.”

@Nullo, The reason to restrict the number of guns sold to an individual is to cut back the market in illegally purchased guns.

CMaz's avatar

“I do not see the need for automatics or semi-automatics and I see no problem in placing a limit on the number of guns a person purchases in a year.”
So let us give the illusion of protection. Arming everyone with slingshots would have been just as effective as rifles agents the British army.
And if you can’t handle that responsibility then don’t you take on that responsibility. Its called freedom of choice.

“so a bunch of guys dicking around on the weekend won’t cut it.”
You will find that those individuals that are :dicking” around. Take that responsibility and the responsibility of their firearms VERY serious.
They understand and respect those 2nd amendment rights.

LostInParadise's avatar

If by British army you are referring to the American Revolution, then you should know that the American declaration of war was a formal procedure conducted by the Continental Congress. It was not a bunch of private citizens deciding individually to take on the British.

gorillapaws's avatar

@ChazMaz “You will find that those individuals that are :dicking” around. Take that responsibility and the responsibility of their firearms VERY serious.”

You mean like this guy ?

That kind of nonsense would not happen in a well regulated militia.

CMaz's avatar

“That kind of nonsense would not happen in a well regulated militia.”
We have car accidents even with well regulated driving rules/laws.

We are back to remove the guns, ban baseball bats.

I associate with other gun enthusiasts. Gun handling and management is taken VERY seriously.

gorillapaws's avatar

@ChazMaz In my mind a well regulated militia has a chain of command, training, regulations, etc. And comparing the actions of Roger Witter to a car accident is a pretty major understatement, it’s more like driving the wrong way down the interstate doing 90mph.

Just because the 2nd amendment doesn’t apply outside of well regulated militias doesn’t mean you can’t have guns, and that someone’s going to take your guns away. I for one think it’s financially impractical for the government to buy all of those guns back from people, and it certainly doesn’t have the right to seize anyone’s property without compensating them.

deadleaf's avatar

Gimme some lurve with this great question! I wanna be high in the ranks like the rest of you.

To all who are for and against the guns. Love them or hate them, they are here. If there are laws that ban them, or laws that promote them, those who we wish not to have them, WILL. Enemy, Thief, Robber, Hoodlum, Your Lawyer, Your car salesman… Anyone of these people still hold the potential to use deadly force and so should you. You will never sacrifice your child unless you are completely nihilistic.

throssog's avatar

The nature of Constitutional Amendments is such as to require an analysis of the “why” of them, i.e., Bill of rights, Amendments, etc. before the Amendment itself is subjected to analysis.
The Bill of Rights was not a “grant” of “rights” to the people. It was a recognition of apriori rights that belonged to persons by the nature of the existence of the person. This was ‘why’ women , children and blacks,et alia, were not considered “real persons”. Now, of course, illegal aliens, mentally impaired persons and felons are the non-real persons who may be denied to possess rights.
The nature of the 2nd Amendment is such as to deal with the existence of the individual right to self protection and the collective right of joining together to resist , as an organized group, i.e., militia, the efforts of any other group to oppress or disenfranchise people or persons…or groups.
The Amendments (first 10) were a listing of areas that the government was to regard as not within their mandate to control. Of especial interest are the 9th and 10th Amendments, which I would submit to your consideration. Thus has so much bad law been created around the attempt of government to assume powers for which it cannot have authority.
Should you doubt this last assertion take a look at 4th Amendment law and its current state. Most enlightening, imho.

Nullo's avatar

I was reviewing my second amendment recently when I realized something: it really isn’t about the militia at all.

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Flip things around the comma and we have:

“The right of the people to keep and bear arms shall not be infringed, a well regulated militia being necessary to the security of a free state.

See? The militia is an application of the amendment, not the final point.

gorillapaws's avatar

@Nullo if you re-read it, you’ll realize that it’s the “well regulated militia” that’s the necessary thing, and the bearing of arms that’s presumed to be the vehicle to support that necessity. You can invert things all you want, but I think that radically distorts the intent (just as inserting “not” into certain places would).

Nullo's avatar

@gorillapaws The flipping-around-comma was to dispense with the more archaic mode of English. The meanings are all still there.

gorillapaws's avatar

@Nullo that’s fine, but I still think it’s pretty clear that the millitia is the thing that’s being described as being “necessary.” If you want to flip things around I would thing the phrasing would go along the lines of:

“the right of the people to keep and bear arms shall not be infringed, because a well regulated militia is necessary to the security of a free state.”

I still think this latter re-arrangement indicates that the keeping and bearing of arms is a right insofar as it services the necessity of a militia. I think a well-regulated state militia (“the people”) can’t be disarmed by the federal government. In other words, there is a guarantee for the people that the federal government cannot become tyrannical, because the states have the ability to fight back (this was the issue the founders were terrified of), not defending the rights of anyone to walk into a gun store and buy weapons capable of massacring dozens of people in the span of a couple of minutes.

Answer this question




to answer.

This question is in the General Section. Responses must be helpful and on-topic.

Your answer will be saved while you login or join.

Have a question? Ask Fluther!

What do you know more about?
Knowledge Networking @ Fluther