How far does it go?

[mikeyb]

Rationally and morally, no one should have WMD.

I interpret the 2A as items readily available for military infantry usage.

The 2A was written with specific objectives in mind, and they had the foresight to not put limitations on the RKBA by enumerating those objectives. Commonly accepted reasons for the 2A: Defense of self; Defense of State; Hunting; Repelling invasions; Self-governed Law Enforcement; Quelling rebellions. All of those reasons are primarily defensive or reactive measures. Nuclear weapons and other WMDs are offensive or retaliatory.

The intent, in my opinion, of the 2A is not to promote an offensive and reactionary population, but to defend and preserve what we hold dear.

I get the whole "Arms means arms" position, I really do. I think it'd be great for a private citizen to have their own F/A-18 or M1 Abrams. But the problem we face is the absolute lack of impulse control in our nation. We have people driving through fast food joints because the eatery ran out of chicken nuggets. My country's population does not instill in me a sense of domestic tranquility.


If I had the power to change the laws:
Firearms would not require a background check. NFA items would be reclassified. NFA items would be grenades, grenade launchers, rocket launchers, and RPGs. NFA items would require a background check. You could not sell any item to a prohibited person. Stricter penalties for those that do.

Mechanical/motorized military items would be for sale, with a background check and registration. We just can't have just anyone buying military gear then eBaying it or putting it on Alibaba.

 

[utbagpiper]

But our opinions do not answer whether the government limiting which/what "arms" the people are "allowed" to have violates the 2nd Amendment. Should the government enforce our opinions on where that line should be (and that opinion differs from the rabid anti gunner to the fervent supporter of the 2nd Amendment) that defines the right to keep and bear arms?

I think you're missing the point that some are making. This isn't about our opinions on where the line is between protected and non-protected weapons. The question is, what does the 2nd amendment actually say, what was the intent (or opinion if you like) of those who drafted it and those who voted to ratify it.

The 1st amendment says congress shall make no law prohibiting the free expression of religion. Does this require us to permit human sacrifice or jihad against non-believers? One can argue that both are expressions of religion. But they violate the rights of others are rightly prohibited.

Marshaul has argued that there are no circumstances under which an active WMD can be used without violating the rights of others. As such, any supposed right to possess the WMD is a bit pointless even if it did exist. (What is the 2nd amendment use of a weapon that cannot be used?) And because any use of the weapon--even accidentally or negligently--has such a high risk to others' rights, a ban on possession is necessary to protect those rights. A firearm simply isn't comparable on either front. And while driving is not a right, his analogy was spot on since nothing in it relied on the particulars of driving being a licensed privilege. He might just as well have written of randomly firing shots into the air as not being protected.

WalkingWolf, meanwhile, has argued from the linguistics of the amendment itself that the amendment only protects those arms that can be "borne" against government tyranny (and I would add foreign invasion and domestic insurrection). He has argued that "to bear" means something other than "to carry"; that it means to use in opposition to something. WMDs cannot be so "borne" and so are not protected. I've argued much the same point from an original intent context. What is the purpose of the 2nd amendment.

Now, these are all merely "opinions" and since nobody here (so far as I know) is Justice Kennedy, the value of those opinions is a bit limited. But these are not merely emotional or purely subjective feelings as we often get from gun grabbers about scary looking guns. These are some rational, objective lines based on the language and original intent of the amendment itself.

Admittedly, the founders did not directly address the issue of WMDs so far as I know. But I did offer the example of whether anyone had ever tried to argue that keeping corpses around, infected with plague or small pox, was protected. Those were the WMDs of the day.

The genius of the 2nd amendment, like most of the rest of the constitution is that the wording is so precisely chosen as to provide proper governance 200 years later under vastly different circumstance.

Charles

 

[marshaul]

Apples and oranges indeed since there isn't an enumerated right to drive yet there is an enumerated right to keep and bear arms.

Rights do not derive from enumeration. If you believe they do, this discussion was over before it started because the SCOTUS has already decided that the 2A does not protect the right to own "any weapon" whatsoever. Moreover, I think this is the correct analysis of the 2A. WW's "borne" argument (as re-articulated by utbagpiper) makes the point better than I was prepared to, I think.

And using small arms to end the life of an individual person, even in self defense, could be considered a violation of that person's right to life.

Did you even read what I wrote?

 

[Bikenut]

I think you're missing the point that some are making. This isn't about our opinions on where the line is between protected and non-protected weapons. The question is, what does the 2nd amendment actually say, what was the intent (or opinion if you like) of those who drafted it and those who voted to ratify it.

Well? What does the 2nd Amendment say? Does it say that it is permissible for the government to limit which arms the people are allowed to keep and bear? Cites and/or links please.

 

[SovereigntyOrDeath]

I've only just stumbled on this thread, and thought I'd offer my $.02. I apologize for the long post (you may just skip to the linked article if you so choose).

The argument that only weapons which can be wielded by the individual are the "arms" referred to in the Second Amendment would not stand up to scrutiny in the context of the Militia of the time (which is what the founders saw, agreed with, and wanted for the future). That is to say, that the militia/citizens then DID have access to "military-grade" implements of war and private ownership was limited only to what the individual could afford, which included implements that a single individual could not possibly wield even in that time (ships, cannon).

Cannons then, tanks today. Cannons on warships then, main battery and turrets on warships now. Even if we were to entertain the notion of a multibillionaire somehow wanting to own his/her own nuclear warhead, wouldn't his/her misuse or threats be dealt with conclusively and swiftly by his/her well-armed fellow citizens?

The concept of the Militia (being the People), and of having --- not "allowing" or permitting, but simply "not prohibiting" --- the People be armed with all sorts of war materiel is based on the understanding that whereas a government or standing military may become tyrannical and attempt to dominate the People by force, a well-armed People could not be easily subjugated, nor would the People turn the threat of force on themselves (citizens would come together against enemies threatening the "security of a free state").


Here is a very thoughtful and thought-provoking piece regarding the matter at hand (even if the author only argues for "small arms of military utility" and "weapons of the individual soldier"):

http://bearingarms.com/yes-professo...ve-wanted-us-to-have-rpgs-and-assault-rifles/

Exactly! The 2nd Amendment was to prevent a tyrannical government ,or POTUS from becoming a king or dictator. With that said, we should be able to own anything the military has. How can we counter a modern standing army with small arms? We can't.

Lets say POTUS decides he is not going to step down due to an emergency. POTUS decides, for the good of the little people POTUS needs to stay in office indefinitely and there are enough military who support it. For the little people's safety of course. Now what? I'll tell you what, arms confiscation and FEMA camps for all who owned said arms.

“Their swords, and every other terrible implement of the soldier, are the birthright of an American.” Tenche Cox, Pennsylvania delegate to the Continental Congress........emphasis added

 

[Bikenut]

Rights do not derive from enumeration. If you believe they do, this discussion was over before it started because the SCOTUS has already decided that the 2A does not protect the right to own "any weapon" whatsoever. Moreover, I think this is the correct analysis of the 2A. WW's "borne" argument (as re-articulated by utbagpiper) makes the point better than I was prepared to, I think.

We are talking about the right to keep and bear arms and that one while being a natural right... is enumerated.

I'm curious, without being a jerk, honestly curious...where is the right to drive? Cites and/or links please.

And when the SCOTUS decided the 2nd Amendment does not protect the right to own "any weapon" did that decision violate the 2nd Amendment? Which would actually be my original question of if the government limiting which weapons are allowed violates the 2nd Amendment because it doesn't matter which branch of "the government" does it.... it is still the government.

 

[WalkingWolf]

We are talking about the right to keep and bear arms and that one while being a natural right... is enumerated.

I'm curious, without being a jerk, honestly curious...where is the right to drive? Cites and/or links please.

And when the SCOTUS decided the 2nd Amendment does not protect the right to own "any weapon" did that decision violate the 2nd Amendment? Which would actually be my original question of if the government limiting which weapons are allowed violates the 2nd Amendment because it doesn't matter which branch of "the government" does it.... it is still the government.

Right to travel 9th amendment, covers going from point A to point B. Since driving a motor vehicle has become the most common way to travel, IMO, it is covered by the ninth amendment.

 

[marshaul]

I'm curious, without being a jerk, honestly curious...where is the right to drive? Cites and/or links please.

This is off-topic. As Charles pointed out, my analogy works independently of whether we agree on a preexisting "right to drive".

However, since I do believe there is a preexisting right to drive (with the stipulation that this, as always, does not infringe on other rights), I will answer the question. There are two different conceptions of natural rights. According to the first, we might say things like "man is naturally alive, therefore he has a right to life. Man is naturally free, therefore he has a right to be free. Man naturally travels, therefore he has a right to travel." (In contrast, while it's presumably true that, in "state of nature", some men killed, killing doesn't possess the inherency that being alive, being free, and moving about would in a state of nature.) Man naturally will acquire and defend property (chattel and homestead, anyway), so he has a right to this sort of property. Etc.

If a man has a right to property and a right to travel, it follows then that he has a right to travel with his property. The distinction between traveling with one's property, and traveling by motive means of one's property seems pedantic at this point. Of course, it can easily be argued that one does not have a right to pollute, or to recklessly or egregiously endanger others, and so the right to travel cannot necessarily entail either of those. Ideally, this would be the justification and extent of regulation on the right to drive: to mitigate pollution, regulate driving habits, etc.

There is another, broader conception of rights, based on the first. According to this view, there are lots of things which are naturally part of the human experience, but which may not exist in "state of nature". For instance, I have a right to create and enjoy art, to participate in organized religion, and to engage in political discourse. The natural conclusion from this is Herbert Spencer's Law of Equal Liberty (although he is by no means unique in this view, he does have a convenient wiki page to point to). The way I like to put it is, "the sphere of right extends, and is limited, to all such actions as do not infringe on another's equivalent sphere of liberty."

(A brief aside: note that my definition is intentionally recursive. Like any recursive algorithm, it requires "edge cases" to prevent infinite recursion; in this case these are the previously-established right to life, to travel, to property, etc.)

According to this (my) view, I have a right to do anything which does not limit another's equal liberty. So, if I may drive my car upon a road without preventing another from doing so, then we both ipso facto possess a right to drive our cars upon the road. So, I may not drive recklessly, but I certainly may drive in some (safe) manner. I may not have a right to drive a car which pollutes (if that infringes on another's property rights), but I certainly do have a right to drive a vehicle which is "environmentally clean". Etc etc etc.

Another aside: having read my copy of Jefferson's complete writings a couple of times, I firmly suspect that Jefferson would share my view on this. As he said, "the rights of conscience we never submitted.... The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

If you really want "authoritative" arguments, I submit SCOTUS's "popularity doctrine", as articulated in Heller. The 2A doesn't protect all weapons, but it certainly protects at least the most popular weapon (specifically, the semi-automatic handgun). By analogy, the (first amendment-implied) right to travel does not protect every possible means of travel, but at the very least it must protect the most popular means of travel (obviously the car).

 

[Bikenut]

Originally Posted by Bikenut

We are talking about the right to keep and bear arms and that one while being a natural right... is enumerated.

I'm curious, without being a jerk, honestly curious...where is the right to drive? Cites and/or links please.

And when the SCOTUS decided the 2nd Amendment does not protect the right to own "any weapon" did that decision violate the 2nd Amendment? Which would actually be my original question of if the government limiting which weapons are allowed violates the 2nd Amendment because it doesn't matter which branch of "the government" does it.... it is still the government.

Right to travel 9th amendment, covers going from point A to point B. Since driving a motor vehicle has become the most common way to travel, IMO, it is covered by the ninth amendment.

The 9th Amendment references rights not enumerated in the BOR so has the right to travel been established as one of those rights? And if traveling has been decided to be a right where does the right to travel mean the right to drive? Or fly an airplane? Or ride a bus or train?

Please understand I'm not being a jerk when I ask for cites and/or links.

If we want to go down this road (no pun intended) and say that the right to travel include using methods of locomotion then why wouldn't the actually enumerated 2nd Amendment mean any and all ... arms?

 

[marshaul]

IMHO the 1A is a better source for a right to travel than the 9th. Courts have already agreed that the 1A right to "assemble" necessarily entails a right to travel (how may we "assemble" if we may not travel to the place of assembly?).

Nobody thinks you're being a "jerk" for asking for cites/links, but we do think you're missing the point, including the very point of the 9A.

How can I "cite" my right to draw circles and color some of them red and the rest blue? Do you dispute that I possess such a right?

 

[WalkingWolf]

The right to travel is also covered/inferred in article 4 privileges and immunities clause. The right to travel is far more reaching than assembly, though that argument can be used. Clearly the writers did not think something so common sense needed to be enumerated.

 

[marshaul]

The right to travel is also covered/inferred in article 4 privileges and immunities clause. The right to travel is far more reaching than assembly

Of course, but I still find that argument persuasive, coupled with your observation that

Clearly the writers did not think something so common sense needed to be enumerated.

Let's use both the 1A and the 9A for the best argument:

Given that the founders did not enumerate a right to travel, but also given that such is necessarily required for the 1A to make any sense, and also given the 9A, we can infer that the founders assumed the right to travel was, itself, a given.

 

[Bikenut]

If you really want "authoritative" arguments, I submit SCOTUS's "popularity doctrine", as articulated in Heller. The 2A doesn't protect all weapons, but it certainly protects at least the most popular weapon (specifically, the semi-automatic handgun). By analogy, the (first amendment-implied) right to travel does not protect every possible means of travel, but at the very least it must protect the most popular means of travel (obviously the car).

Ok... you told me what you believe about the right to drive and I respect your right to hold your beliefs. I still don't see where there is a right to drive just because driving is the most popular way to travel.

Does having the right to travel by driving be protected mean the right to travel by flying a plane isn't protected?

After all... if we go with popularity as the standard then the right to keep and bear arms becomes limited to whatever arms happens to be popular at any given time.

I do not like the idea that the government can pick and choose which rights, or which portion of which right, will be protected from itself. I also do not like the idea that good honest intelligent folks have bought into the idea that rights are things that can be chopped up into segments that the government decides are protected or not protected.... from the government itself.

Bottom line is the 2nd Amendment is a law that says the government is not allowed to regulate or control the people's right to keep and bear arms. It doesn't say anything about which arms or how they are borne or the popularity of any arms or even the destructive potential of those arms. It says.... "keep and bear arms".

Unless I am sorely mistaken the intent of the 2nd Amendment was for "we the people" to have "arms" in sufficient quantity and power to counter the "arms" an out of control government has. So... what "arms" does the government have and would they use them against the populace?

 

[utbagpiper]

How can we counter a modern standing army with small arms? We can't.

Now THAT is an argument we often get from the gun grabbers. "You can't defeat a modern army anyway. So the 2nd amendment is void. You have no need for your ARs and AKs."

My favorite response to that is simply this: If a modern army cannot be defeated with small arms, please give me the telephone number of the French or American military command in Vietnam or the Soviet or American military dictator of Afghanistan. Admittedly, some SAMs and some crew served anti-aircraft weaponry were very useful to the Vietnamese and Afghanistanis. But I'm not aware of either group of guerillas using WMDs against the foreign invaders, on their own soil.

Small arms cannot be used to conquer a nation with a modern standing army. But they most certainly can be used to prevent a successful occupation.

If the president goes nuts and the military allows him to nuke his own nation, it is game over anyway. Not much left to conquer or defend.

Charles

 

[SovereigntyOrDeath]

Of course, but I still find that argument persuasive, coupled with your observation that



Let's use both the 1A and the 9A for the best argument:

Given that the founders did not enumerate a right to travel, but also given that such is necessarily required for the 1A to make any sense, and also given the 9A, we can infer that the founders assumed the right to travel was, itself, a given.

However.....rogue judges have turned it into a privilege. Hence my argument that when one starts down the slippery slope of making rules and regulations for safety, this is what happens. A clear right of the people usurped. Now one needs a license, and insurance, and to register the vessel.

The frog is boiled alive.

We need all the weapons the military has to counter a rogue POTUS and armed forces that side with him in an attempt to be dictator or king.

 

[utbagpiper]

Well? What does the 2nd Amendment say? Does it say that it is permissible for the government to limit which arms the people are allowed to keep and bear? Cites and/or links please.

Respectfully, you're being obtuse. WalkingWolf has dissected the verbiage of the 2nd amendment very carefully. Read it. It says "....the right of the people to keep and bear arms shall not be infringed."

It protects a right to bear arms. WalkingWolf has discussed what that means.

Disagree with him if you like. But you have your citation: the 2nd amendment itself.

You can find quotes from the founders about the people being well armed. I don't find anything from them supporting any "right" of the people to keep plague infected corpses on hand to use as a weapon against any power. Beyond that, you're looking at court rulings that endlessly remind us that no rights are absolute and all have limits.

Charles

 

[SovereigntyOrDeath]

If the president goes nuts and the military allows him to nuke his own nation, it is game over anyway. Not much left to conquer or defend.

Charles

Then scorched earth it is my friend.

The trumpets are sounding and we will soon be home.

Live free or die.

 

[SovereigntyOrDeath]

Ok... you told me what you believe about the right to drive and I respect your right to hold your beliefs. I still don't see where there is a right to drive just because driving is the most popular way to travel.

Does having the right to travel by driving be protected mean the right to travel by flying a plane isn't protected?

After all... if we go with popularity as the standard then the right to keep and bear arms becomes limited to whatever arms happens to be popular at any given time.

I do not like the idea that the government can pick and choose which rights, or which portion of which right, will be protected from itself. I also do not like the idea that good honest intelligent folks have bought into the idea that rights are things that can be chopped up into segments that the government decides are protected or not protected.... from the government itself.

Bottom line is the 2nd Amendment is a law that says the government is not allowed to regulate or control the people's right to keep and bear arms. It doesn't say anything about which arms or how they are borne or the popularity of any arms or even the destructive potential of those arms. It says.... "keep and bear arms".

Unless I am sorely mistaken the intent of the 2nd Amendment was for "we the people" to have "arms" in sufficient quantity and power to counter the "arms" an out of control government has. So... what "arms" does the government have and would they use them against the populace?

Exactly!

 

[Bikenut]

IMHO the 1A is a better source for a right to travel than the 9th. Courts have already agreed that the 1A right to "assemble" necessarily entails a right to travel (how may we "assemble" if we may not travel to the place of assembly?).

Nobody thinks you're being a "jerk" for asking for cites/links, but we do think you're missing the point, including the very point of the 9A.

How can I "cite" my right to draw circles and color some of them red and the rest blue? Do you dispute that I possess such a right?

At least you guys understand that I'm asking questions in the hopes of causing good discussion and that my intention is not to be a jerk.

But just because one has the right to travel does that automatically mean one has the right to travel by the means available? If so wouldn't that mean the right to keep and bear arms means one has the right to keep and bear arms that are available?

About drawing circles... do you think it is Ok for the government to step in and decide how many circles of what size and whether you need a permit to carry red and blue crayons? That isn't a facetious question.

Back to my question (which is the point). The OP asked....

As asinine as the arguement is of "should you be able to own nukes, then?" It got me thinking-

IS there a line of what weapons the 2nd amendment applies to? For example, does it cover chemical weapons?

I've always thought of it as a "gun" amendment. But in a completely literal sense, where, if anywhere, is the line drawn? And how would you respond to this *asinine* (at times) question?

Apologies for the asinine question

Bold added by me for emphasis.

And I wanted to know...

Does the government violate the 2nd Amendment when it limits what arms "we the people" are "allowed" to have?

Because it would be the government that would be... drawing that line. And it would be the government that would be not only doing the "allowing" but also the "not allowing".

 

[Bikenut]

Respectfully, you're being obtuse. WalkingWolf has dissected the verbiage of the 2nd amendment very carefully. Read it. It says "....the right of the people to keep and bear arms shall not be infringed."

It protects a right to bear arms. WalkingWolf has discussed what that means.

Disagree with him if you like. But you have your citation: the 2nd amendment itself.

You can find quotes from the founders about the people being well armed. I don't find anything from them supporting any "right" of the people to keep plague infected corpses on hand to use as a weapon against any power. Beyond that, you're looking at court rulings that endlessly remind us that no rights are absolute and all have limits.

Charles

Plague infested corpses again?

I am not being obtuse. I am asking questions and getting personal opinions and beliefs for answers.

And I have been referencing the 2nd Amendment all along when I ask:

Does the government violate the 2nd Amendment when it limits what arms the people are allowed to have?

Well.... the key word is "allowed" because if the government is regulating the right to keep and bear arms by being in control of the "allowing" then the government is violating.........

"shall not be infringed"

by also being in control of the .... not allowing.

It doesn't matter if I, you, or anyone, agrees with what the government is not allowing nor does it matter if we agree with why the government is not allowing. What matters is when the government is in control of the allowing/not allowing then the government is violating the "shall not be infringed" part of the 2nd Amendment.

Thinking that court cases decided by government courts in favor of government being in control of defining what will and what will not be allowed in regards to the right to bear arms is accepting the idea that it is Ok for the government to decide what rights and/or what parts of rights will be protected and what will not.

And I submit that the government has been driving us down that road for a very long time.