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Gun Rights: Not All Firearms Are Constitutionally Protected As Some Would Have You Believe. [278*3]

Updated on April 25, 2016
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MY ESOTERIC likes to think of himself as a bit of a polymath with degrees in Statistics, Accounting, Computer Science, & Operations Research

What did District of Columbia v Heller Actually Say?

LET'S START WITH A LINK TO THE HELLER OPINION. You will note that nothing presented in this Hub will contradict what is included in the Heller opinion.

Here is the question the Justices sought to answer:

"Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?" (courtesy of Hoodathunk)

The above devolves into three questions:

  1. Does the Second Amendment protect individuals as opposed to groups?
  2. Is there a nexus between the Militia and personal possession of a firearm?
  3. What purposes for possessing a firearm are constitutionally protected?

The Answers to these questions the Justices came to are:

  1. Yes, the Second Amendment applies to individuals
  2. No, there is no nexus between the individual right to own a gun and service in the militia
  3. Any lawful purpose, including self-defense, is protected by the Second Amendment

Not asked, however, but was nevertheless answered with some degree of clarity, is what weapons fall within the protected class which individuals may possess.

It is this Courts ruling regarding whether or not there is a limit on the types of weapons which an American may possess which has engendered such a vigorous debate between the fringe gun owners who want zero gun control, regular gun owners, those who don't own guns, and the very few who advocate banning all guns. Whether they know it or not, those in first and last groups are fighting a losing cause because Heller, and many other court opinions, simply do not support their views. That is what this Hub is about.

It is safe to ignore the views of the last group, those who want to ban all guns, because the right to bear arms is simply 1) settled law and 2) ingrained in the American culture. Further, it is not necessary to consider the second and third cohorts either because they already agree that not all firearms are covered by the 2nd Amendment; that owning some guns can be outlawed.

All Guns vs Some Guns

AS NOTED ABOVE, THERE IS NO ISSUE WITH REGULAR GUN OWNERS and NON-GUN OWNERS that the Second Amendment does not apply to all firearms that can be carried by individuals. But, there is a spectrum of opinions among those who espouse the need for few or no regulations regarding possession of firearms.

Some believe that there is no weapon what so ever that, if a person can carry it, should be legal to own. Others in this fringe group think that some weapons, like shoulder-fired anti-air weapons or bazookas, can be illegal to own. Even more might extend the list to machine guns like the M-60. Often they cite Justice Antonin Scalia as supporting such views.

This, however, is very wrong! Here is Scalia from the Heller opinion as well as some legal interpretatons;

1 "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 on the commercial sale of arms."

2. Scalia stated: "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." "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." "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." "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."

3. Justice Antonin Scalia's opinion for the majority provided Second Amendment protection for commonly used and popular handguns but not for atypical arms or arms used for unlawful purposes, such as short-barreled shotguns.

4. The Supreme Court thus emphatically rejected the extravagant, or as Justice Scalia characterized it, startling notion, still promoted by some, that the Second Amendment could fulfill its original purposes only if citizens were guaranteed a right to arm themselves to the teeth, matching in their private armories essentially the full array of weapons possessed by the United States Military.”

5. Justice Scalia explained the basis in history for exempting certain types of regulations from Second Amendment review. Certain limitations on gun ownership are constitutionally permissible, he contended, because there were some regulations that were acknowledged at the time [of the Founding. For example, there was a tort called "affrighting" . . . if you carried around a really horrible weapon just to scare people, like a head ax or something. . . . What the justice evidently meant was that regulating weapons because they are chosen specifically for their intimidating appearance is constitutionally unproblematic because the very use of intimidation is unnecessarily disruptive to organized society.

6. The Federal Assault Weapons Ban (AWB) — officially, the Public Safety and Recreational Firearms Use Protection Act — is a subsection of the Violent Crime Control and Law Enforcement Act of 1994, a United States federal law that included a prohibition on the manufacture for civilian use of certain semi-automatic firearms it defined as assault weapons, as well as certain ammunition magazines it defined as "large capacity." ... Several constitutional challenges were filed against provisions of the ban, but all were rejected by reviewing courts.

It Is Settled Law that Some Firearms Simply Are Not Protected By the Second Amendment; Yet They Argue On!

FROM THE ABOVE, THERE SHOULD BE NO QUESTION that some firearms which can be borne by an individual are not protected by the Second Amendment. Yet there is! The NRA leadership (not its general membership) and a fringe, but nevertheless very loud group of gun owners who simply ignore the facts, question it. They

  • ignore the opinion of their hero Justice Scalia,
  • ignore the opinions of vast number of their fellow gun owners that the Second Amendment is not all powerful
  • they ignore an even vaster number of Americans who, in general, report they feel the same about the Second Amendment.
  • ignore previous Court rulings which do place certain limits on what kind of weapons are not covered by the Second Amendment

In discussions with the vocal extreme fringe of gun-rights proponents one thing became quickly apparent - 1) they don't read what you write but see what they want to see and 2) facts don't matter. For example, on many more than one occasion in both hubs and comments I have made it patently clear that I favor the right to gun ownership. But they declare that people like me "want to take their guns away from them". Then they ignore my response that "no, I don't want to take your guns away, I just want sensible regulation of ownership to help reduce the number of people who die from gunshots." by rejoinding that "I want to take their guns away." Arrrrggggh!

Ignoring the Dead and Red Herring Arguments

HOW DO YOU GET THROUGH THAT AMOUNT OF PARANOIA? You can't, but you hope your logic resonates with others reading the post.

Besides ignoring an author's words, another tactic this side takes is to totally ignoring the fact that the majority of deaths from guns is suicide, some 16,000/year. Worse, they actually profess that 1) the only dead people who count are those from violent crime; which represent the minority of deaths and 2) they even go so far as to blame suicide victims for their own deaths; as if they made a rational decision to kill themselves in the first place -- ridiculous! But then, for those who grudgingly admit suicides are real dead people, they will claim that every one (100%) of those intending to shoot themselves, but can't find a gun, will use some other means - provably wrong!!

While these rationales make sense to those who need them to, they nevertheless are false. The fact is that the dynamics of suicide are such that 90% of those who attempt suicide and fail, DO NOT TRY AGAIN. The same logic applies to those who are at the unbalanced mental state as to shoot themselves, but can't acquire a gun, give up trying. They pick a gun because they believe it will be quick and painless; unlike knives, hanging, drowning, and other messy means of dying.

If these people can't find a gun, then often the moment passes. Unfortunately, those who oppose gun safety controls want these people to die (actually, it is more like that they probably don't care.)

(AU Note - The Left, amazingly, also ignores suicides, but for different reasons, and focuses on a losing battle saying there is a strong link between the rate of gun ownership and the rate of violent crime (or at least homicides). This is the wrong way to approach gun regulations because, while statistically it is more likely than not that guns and violent crime are linked (besides common sense) than the other way around, you can't take those statistics to the bank yet; at least the ones I developed and I haven't seen another study which takes into account as many variables as I do. All one can say is it "leans" in the direction of such a relationship. On the other hand, the statistical relationship between gun ownership rates and rates of successful suicides by gun is strong, as is the link between sensible regulations and rates of gun ownership.)

Another red herring I often see is the popular claim that "guns don't kill people, people kill people". Perfect logic in the sense that an inert gun with no other forces acting on it, will kill people. It is illogical if you tack on the rest of the saying "guns don't kill people, people kill people with guns". Now the logic is very gray. But even that is neither here nor there. Why? Because gun regulations regulate people, not guns.

This red herring is particularly frustrating in is stupidity and persistence, it goes something like " the laws we have on the books that make murder illegal, yet it happens everyday; so what good are gun regulations?" The obvious hole here is the unrealistic belief by these supporters of a no-holds-barred approach to gun ownership is that a law should stop 100% of the crime; if it doesn't, it is worthless and shouldn't be there at all. By analogy, since it is impossible for any gun control law to stop all gun violence then one shouldn't bother enacting them. Absurd!

In reality, the whole point and the only legitimate point of gun regulations is to keep guns out of the hands of the people who shouldn't have them in the first place. But that reality is drowned out in all of the blind, vitriolic rhetoric by a force of paranoid gun owners ... a group that, ironically, does not represent the vast majority of rational gun owners.

No Guns At the Republican National Convention



AT THE WRITING OF THIS HUB, THERE IS A MAJOR FIGHT GOING ON regarding whether guns can be brought to the Republican National Convention in Cleveland, OH. The GOP powers that be say NO. Gun Rights Advocates are pushing hard to reverse that decision. If they fail, then that gives the Democrats a wonderful weapon in their arsenal against the GOP this November.



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© 2016 Scott Belford


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