close

Privacy guaranteed - Your email is not shared with anyone.

Are There any Legitimate Gun Restrictions?

Discussion in 'The Okie Corral' started by ancient_serpent, Apr 17, 2012.

  1. ancient_serpent

    ancient_serpent

    Joined:
    Jun 6, 2008
    Messages:
    3,113
    Likes Received:
    229
    I had to answer this question as part of a class I recently finished. While it is a bit long and I'm not a very good writer, I would appreciate any of your observations or criticisms as to the subject matter and evaluations of my responses.

    I do realize it is a bit long and if this violates any forum rules, I apologize. As far as I can tell it doesn't so, here it is:

    Common Sense and Firearms

    With our nations instant access to sensationalized news stories of violence splayed across the internet, television and newspapers, many people have begun to wonder if the 2nd Amendment to the U.S. Constitution is sufficiently restrictive. In a recent case seen by the Supreme Court we have taken a closer look at the Amendment itself and the context in which it was created. A question that remains to be answered is if there are any legitimate restrictions on gun ownership. Given context provided by the Supreme Court ruling, other Constitutional Amendments and the perilous times and situation in which the Amendment was created, I believe that there are very few legitimate restrictions on firearm ownership.
    In the case District of Columbia (D.C.) versus Heller, one finds arguments that touch on every conceivable aspect of the Second Amendment. Since 1975, the District of Columbia had banned the possession of unlocked firearms within D.C. resident’s homes. The law required that residents keep any of the few firearms allowed in the District unloaded and disassembled or fitted with a trigger lock. It may be difficult for those not familiar with firearms to understand how this would stop the people living in D.C. from using those weapons in a defensive role. Essentially, the amount of time it would take to reassemble, load or unlock a firearm effectively prohibited the people of D.C. from using firearms in self defense. If this is doubted, one merely need ask if police officers or military members would care to keep their weapons unloaded, disassembled or fitted with a trigger lock. One may also consider that the armed guards for the many government buildings in D.C. do not keep their weapons in such a condition.
     
    Last edited: Apr 18, 2012
  2. ancient_serpent

    ancient_serpent

    Joined:
    Jun 6, 2008
    Messages:
    3,113
    Likes Received:
    229
    The 1770’s and 1780’s were a desperate time for the colonies. Reeling from defeats at the hands of the massive British occupation force, the colonials found themselves short on food, clothing and weapons. The Continental Congress had very little luck in convincing the various colonies to donate adequate money to properly supply the small army. For many men, they only had what supplies and weapons they had brought with them. Part of the success the American army later found was in their ability to call up armed people that were ready to fight. Early on in the Revolutionary War, relatively few units had enough weapons. This was not lost on the people that drafted the Bill of Rights.
    When the first ten Constitutional amendments were written in 1791, the intention was not to grant the rights listed, merely to highlight them. As Thomas (2010) explains, “It [the Bill of Rights] does not grant you, for instance, the “right” to “the freedom of speech” or “the free exercise of religion.” Rather, the bill of Rights....remind (s) us of the limits of governmental power” (p.85). Most of the Amendments were based off of preexisting English law and were understood to be inalienable rights intrinsic to free people. There were many delegates that expressed great concern over the lack of protection for individual liberty in the Constitution alone. Others feared that specifically listing certain rights would make any that were not listed subject to the whim of government. This was later resolved in the wording of the Tenth Amendment.
     
    Last edited: Apr 17, 2012

  3. ancient_serpent

    ancient_serpent

    Joined:
    Jun 6, 2008
    Messages:
    3,113
    Likes Received:
    229
    The availability of a preexisting body of armed people that could be called up to defend the nation was an attractive option to a Continental Congress that opposed the formation of a permanent army. Given that the individual citizens of our nation are viewed as members of a nation-wide militia, it stands to reason that the population should be reasonably expected to privately own weapons that are comparable to standard military arms. As Encyclopedia Britannica (2012) cites the Second Amendment, “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.” In a common sense view, this is a reasonable set of restrictions on the right to bear arms: for the Continental Army, state of the art weapons included single shot, muzzle loading rifles, pistols of a similar make as well as a host of swords and other hand held instruments of warfare. In modern times, this translates to shoulder fired, magazine fed, select-fire rifles such as the M4 Carbine, magazine fed semi-automatic pistols such as the M9 Beretta or M1911A1 service pistols and a series of combat and folding knives commonly found in the armed services. While these ideas are less restrictive than existing firearm laws, it fits well within the idea that the individual members of the citizenry be available for military service should the need arise. While this view is not fully supported, in that our nation maintains nearly 20,000 gun control laws, it makes sense in context and in view of the legal support of an individual right to bear arms.
     
    Last edited: Apr 17, 2012
  4. ancient_serpent

    ancient_serpent

    Joined:
    Jun 6, 2008
    Messages:
    3,113
    Likes Received:
    229
    The most common argument for advocates of firearm ownership restriction is that the wording of the Second Amendment refers to collective rights, rather than individual. As observed by author Saul Cornell:
    It would, says Cornell, “be impossible to overestimate the militia’s centrality to the lives of American colonists.” Militias were quintessential collective associations. He emphasizes that “[c]olonists who bore arms did not act as isolated individuals, but rather acted collectively for the common defense, and did so within a clear set of legal structures established by colonial and British law” (as cited in Levinson, 2008, p. 2).
    The idea that the individual has a right to bear arms as a separate entity from any sort of state sponsored or maintained organization is one that finds support among many firearm control advocacy groups. A collective view of firearm ownership provides a basis for a line of reasoning that allows for restrictions. If one assumes the premise of a collective right, rather than individual, it stands to reason that the state has a right to place restrictions upon a militia that they maintain. Thus, the state has a right to restrict their militia members to certain types of weapons. Furthermore, if viewed through a lens of militia service, then firearms must necessarily be of a type of particular use to the state. This would give ground to ban any types of weapons that the states decides are of no particular use. Additionally, in support of existing restrictions, according to the United States Supreme Court (2007), Justice Scalia writes:
    We also recognize another important limitation on the right to keep and carry arms…. as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons…. 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.
    Although Justice Scalia supported the individual view of the Second Amendment as part of the majority opinion, he clearly felt that certain restrictions were applicable and bore mention. The above passage describes the justification for and historical context behind restrictions on certain dangerous or unusual weapons, specifically select fire rifles such as the M16 which is the basis for the current family of military rifles. Justice Scalia’s opinion lends credence to the view that militia members would not be expected to have military grade firearms in their private possession, but rather those of use in hunting, target shooting and self defense purposes.
     
    Last edited: Apr 17, 2012
  5. ancient_serpent

    ancient_serpent

    Joined:
    Jun 6, 2008
    Messages:
    3,113
    Likes Received:
    229
    In response to the collective view of firearm ownership and restriction, one merely need look at the context provided by the Fourth Amendment to the US Constitution. As cited in Fourth Amendment (2012):
    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
    This Amendment, along with the wording of the Second Amendment itself, suggests these rights are individual in nature and not dependent upon any collective right. The text of the second amendment reading “the right of the people to keep and bear arms, shall not be infringed” (as cited in Second Amendment, 2012) is a reference to the need for a pool of armed individuals that could be called upon to protect the state in times of emergency. The fourth amendment, given the same wording of “the people”, clearly does not refer to a collective right. One must disregard not only half of the Second Amendment to suggest a collective right, and hence, restrictions, but also the context provided by other Amendments with similar wording such as the Fourth and Ninth Amendments.
    In response to Justice Scalia, his view on restriction is disingenuous and does not fit within the context of the point of the case. The District of Columbia has expressly listed loaded, readily available firearms as dangerous weapons and effectively banned their possession for purposes within the scope of the Second Amendment as supported by the Supreme Court ruling in Heller versus D.C. If we ignore that the military arms of the day were common in the home and in military service, then why should it be different in our day and age? It seems as if Justice Scalia is biased in his interpretation of the historical context due to prior government restrictions on select fire weapons, i.e., they are not readily available to the population and are unusual and dangerous. Furthermore, Justice Scalia commits a simple logical fallacy in his position. As Mosser (2011) describes begging the question, “To beg the question is to commit a mistake in reasoning by assuming what one seeks to prove. Often this kind of reasoning is criticized as "circular reasoning," in that the premise that supports the conclusion is in turn supported by the conclusion, and thus goes in a circle” (p.4.2). In other words, Justice Scalia is saying that select fire weapons are restricted by the government and not common in American households, since they are not common in American households they can be restricted. One could also say that as we do not base our interpretation of the First Amendment, the freedom of speech, off of technology we should not do so for any other amendments. Certainly the authors of the Bill of Rights did not anticipate the invention of television or the internet, yet we still maintain that freedom. At the time the Bill of Rights was written the arms maintained by the civilian population were the most technologically advanced in the world. Those arms matched those of the British army in every way. Why, then, would it make sense to assume that the meaning and intent of the amendment has changed, given the individual ruling on the Second Amendment from the court itself?
     
    Last edited: Apr 17, 2012
  6. ancient_serpent

    ancient_serpent

    Joined:
    Jun 6, 2008
    Messages:
    3,113
    Likes Received:
    229
    In answering if there are any legitimate restrictions on gun ownership, the historical context and wording of the Second Amendment suggests that few restrictions should apply to individual arms. Despite the many pre-existing gun control laws, the U.S. Supreme Court upheld the view that the right to bear arms is individual in nature. Following the ruling of the Supreme Court, the very nature of existing gun control regulations should be reexamined and future laws implemented with the ruling in mind. Lastly, an expectation of military service suggests a need for military style weapons; it stands to reason that as the common military arms of the day were used when creating the Amendment, standard military arms of the modern age should be the standard for restrictions today.

    References:
    Fourth Amendment. (2012). In Encyclopædia Britannica. Retrieved from
    http://www.britannica.com/EBchecked/topic/215219/Fourth-Amendment
    Levinson, S. (2008). Guns and the Constitution: A Complex Relationship. Reviews in American
    History, 36(1), 1-14. Retrieved March 25, 2012, from Research Library. (Document ID: 1451048051).
    Mosser, K. (2011). Logic an Introduction. San Diego, CA: Bridgepoint Education, Inc.
    Second Amendment. (2012). In Encyclopedia Britannica. Retrieved from
    http://www.britannica.com/EBchecked/topic/531357/Second-Amendment
    Thomas, G.. (2010). Who's Afraid of Original Meaning? Policy Review,(164), 75-93. Retrieved
    March 25, 2012, from ABI/INFORM Global. (Document ID: 2296604311).

    United States Supreme Court. (2007). District of Columbia et al. v. Heller.

    Retrieved from http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

     
    Last edited: Apr 17, 2012