NationStates Jolt Archive

In the 2nd amendment to the US Consititution, it says that citizens have the "right to bear arms" (weapons), but it does not specifically mention guns. Could it be possible that someone could try in a Supreme Court case to apply to this Constitutional right to other weapons, tasers, mace, etc? 7 states, inculding New York, currently have bans on civillians buying or possesing tasers, could someone in one of those states challenge the state bans under that kind of argument? (I'm not asking about the validity of such an argument, but could a court case like this be possible, and how far would the case go?)

All the second amendment says is that a citizen's arms cannot be hacked off by the government for no reason. *nodnod*

All the second amendment says is that a citizen's arms cannot be hacked off by the government for no reason. *nodnod*

(Laughing) I heard there was a routine by southern comedian "Larry the Cable Guy", and it was based on that he supposedly believed that the 2nd amendment was the right to wear sleeveless shirts. ;)

(Laughing) I heard there was a routine by southern comedian "Larry the Cable Guy", and it was based on that he supposedly believed that the 2nd amendment was the right to wear sleeveless shirts. ;)

Actually, the 2nd ammendment guarantees all resturant patrons that, if they so desire, they can return their order of chicken wings in exchange for a plate of bear arms.

Bah! Everyone knows it was a clerical error. They meant to write bare arms.

other weapons, tasers, mace, etc?
rocket launchers? nukes?

In the 2nd amendment to the US Consititution, it says that citizens have the "right to bear arms" (weapons), but it does not specifically mention guns. Could it be possible that someone could try in a Supreme Court case to apply to this Constitutional right to other weapons, tasers, mace, etc? 7 states, inculding New York, currently have bans on civillians buying or possesing tasers, could someone in one of those states challenge the state bans under that kind of argument? (I'm not asking about the validity of such an argument, but could a court case like this be possible, and how far would the case go?)

Actually, the US Supreme Court specifically mentions firearms
The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force that the States could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time...
http://caselaw.lp.findlaw.com/data/constitution/amendment02/

The other five Supreme Court cases directly related to the Second Amendment are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people," U.S. v. Verdugo-Urquidez (1990)

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."

Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The Court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.
http://www.guncite.com/gc2ndsup.html

rocket launchers? nukes?

Hell, if you can afford an Abrams tank, I say go for it.

In the 2nd amendment to the US Consititution, it says that citizens have the "right to bear arms" (weapons), but it does not specifically mention guns. Could it be possible that someone could try in a Supreme Court case to apply to this Constitutional right to other weapons, tasers, mace, etc? 7 states, inculding New York, currently have bans on civillians buying or possesing tasers, could someone in one of those states challenge the state bans under that kind of argument? (I'm not asking about the validity of such an argument, but could a court case like this be possible, and how far would the case go?)

It is more than possible that someone could challenge laws regarding other weapons, but it is rather unlikely the Supreme Court would hear such a case. It would most likely be handled by U.S. District Courts and U.S. Courts of Appeal.

The recent and most clear decision by the Supreme Court regarding the Second Amendment is District of Columbia v. Heller (http://www.law.cornell.edu/supct/html/07-290.ZS.html), 554 U.S. ___ (2008). That case was specific to firearms, primarily handguns, but in that decision the Court said the following things relevant to what weapons are protected by the 2nd Amendment:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

....

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

....

We may as well consider at this point (for we will have to consider eventually) what types of weapons [United States v. Miller, 307 U. S. 174 (1939),] permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

...

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

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.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.



(Note: I copied the above from a post I made on a related subject a few days ago).

I think the Court's analysis could logically be extended to weapons for personal defense like tasers and mace, but I think it most likely the courts would view the 2nd Amendment as referring to common firearms. Regardless, it would not extend to machine-guns, tanks, nuclear weapons, etc.

Actually, the US Supreme Court specifically mentions firearms
The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force that the States could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time...
http://caselaw.lp.findlaw.com/data/constitution/amendment02/

Although Findlaw is a fine source, the above discusses U.S. v. Miller and has not been updated to reflect the decision in Heller. Nor is what you cite particularly relevant to the OP question.

The other five Supreme Court cases directly related to the Second Amendment are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people," U.S. v. Verdugo-Urquidez (1990)

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."

Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The Court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.
http://www.guncite.com/gc2ndsup.html

Beware of relying on Guncite for legal analysis, as they are more than a bit biased. Regardless, none of the above is relevant to the OP question. (Also, although you didn't quote it, the Guncite "quote" from Heller isn't actually from the Heller opinion, but rather from the syllabus of the case--which has no legal value. :wink:)

-snippage-

Much thanks for the Heller summary. I've had other things to worry about, so I've not had a chance to read it yet. Mainly focusing on law pertaining to public administration lately. That whole masters degree thing, y'know?

I hope the Supreme Court sits to decide on the case of Daddy vs Chips.

Mace

http://www.weaponsemporium.com/WE-Studded-Mace.jpg

or mace

http://www.buyteargas.com/images/1big.jpg

?

thanks for all the info...very good job ...and anyone can buy a tank - people do it all the time...just go to a government auction. (some are done on the net) .have ID and no felony record...register...and you can buy almost anything, including parts for nukes. People then turn around and sell them to Iran..for example. F-14 parts are high on the list of things to buy and resell on e-bay/craigslist. You can even buy missile silo sites.....

Mace

http://www.weaponsemporium.com/WE-Studded-Mace.jpg

or mace

http://www.buyteargas.com/images/1big.jpg

?

both?

there is an easy way to put this to rest. when the definition of something in the constitution is in doubt turn to the federalist papers.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

I demand the Government respects my right to have a high powered laser gun in my basement.

Who said it applies only to real weapons? The government must fund research of super lasers! I demand my rights be respected!

*attaches laser pointer to trigger device*
Here you go sir
now buy it off me for 300 dollars and be sure your congressman sponsors a bill to give me 1 billion dollars to cover research, and also acknowledges my sole copyright holder status of any and all laser weaponry.

there is an easy way to put this to rest. when the definition of something in the constitution is in doubt turn to the federalist papers.

As much as I agree with using The Federalist Papers to help us understand the Constitution, you'll have to explain how Federalist #46 helps answer the question of what weapons are protected by the Second Amendment.

I raise this primarily because the section you quoted says nothing pertinent to the type of weapons covered by the Second Amendment, but also because Federalist #46 was written in defense of a Constitution that did not include the Bill of Rights -- in fact it was an argument saying that no such provisions were necessary. It was more than a year later that the Second Amendment was proposed to the Congress.

Remember that rights specifically protected in the constitution are not meant to deny or disparage those not mentioned. Don't be too focused on what the constitution protects - rather, ask what powers Congress is granted and whether it has the authority to regulate any given area.

Remember that rights specifically protected in the constitution are not meant to deny or disparage those not mentioned. Don't be too focused on what the constitution protects - rather, ask what powers Congress is granted and whether it has the authority to regulate any given area.

Good point .....

EXCEPT the OP was talking about STATE bans of certain weapons.

Also, Congress has many constitutional bases for laws like the National Firearms Act.

http://6.media.bustedtees.com/bustedtees/mf/2/3/bustedtees.ef270fa215d10509c3fd5a7396959940.gif

This is why the Constitution sucks....

Quoted from TCTs post: We may as well consider at this point (for we will have to consider eventually) what types of weapons [United States v. Miller, 307 U. S. 174 (1939),] permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

I mean, who gives a shit about how the term 'arms' was defined back in the day.

Either you make good laws or not, there's plenty of data to follow. You can make a reasonable decison on whether people can carry machine guns around without worrying about what people thought in the 18th century. This incessant 'it's in the constitution' crap simply muddies the issue.

I have the same issue over abortion, either it's good law or not, the whole 'right to privacy' is just a smokescreen.

Heck, we may see this one out the window.