Quote:
Originally Posted by detbuch
I don't think it addressed Federal regulations in light of the Second Ammendment.
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Heller settled the "fundamental right" question, at least for self-defense. This determines the level of scrutiny applied to contested law.
Quote:
Originally Posted by detbuch
Originally, and as it was adjudicated throughout the 19th Century, the Second Ammendment was strictly a prohibition against the Federal Government. States were allowed restrictive gun laws if they so chose. Heller now, at least affirms, that the states cannot abridge the Second Ammendment in regards to arms in common use.
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McDonald v Chicago in 2010 finally applied the 2nd Amendment to the states via the due process clause of the 14th Amendment (Incorporation). The primary outcome of
Heller was the invalidation of the "militia right" and "state's right" perversions inserted into the federal courts in 1942 by the First and Third Circuits. This ended 70 years of lower federal and state courts being off the rails and forced them into the constitutional holding that SCOTUS has consistently held for the right to arms for 170 years.
Quote:
Originally Posted by detbuch
But it still leaves the door open for state restrictions of other types of weapons.
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"Type" of weapon is of vital importance to answering the question of what restrictions are constitutional. I addressed this a ways back.
Quote:
Originally Posted by ReelinRod
Governments can only claim power to restrict "dangerous or unusual' arms. But . . . government does not get to begin its action presuming the arm is "dangerous and unusual" because it doesn't think the citizens have any good reason to own it, or it isn't used in hunting (i.e., the present idiotic "Assault Weapons" ban hoopla).
The Supreme Court in 1939 established the criteria for courts (and presumably legislatures  ) to determine if an arm is afforded 2nd Amendment protection.
If the type of arm meets any one of them then it cannot be deemed 'dangerous and unusual' and the right to keep and bear that weapon must be preserved and any authority claimed by government to restrict its possession and use is repelled.
Those criteria state that to be protected by the 2nd Amendment the arm must be: - A type in common use at the present time and/or
- A type usually employed in civilized warfare / that constitute the ordinary military equipment and/or
- A type that can be employed advantageously in the common defense of the citizens.
Failing ALL those tests, the arm could then and only then be argued to be "dangerous and unusual" and the government would be permitted to argue that a legitimate power to restrict that type of arm should be afforded .
"Dangerous and Unusual" is what's left after the protection criteria are all applied and all fail . . . Think of it as legal Scrapple . . .
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Quote:
Originally Posted by detbuch
Which is why I also asked Jim, and he didn't answer
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That seems to be a common theme here among those who are proposing sweeping gun control (at least when one is discussing the Constitution and the law
1,
2,
3, . . . assorted red herrings and tangential diversions into the weeds are engaged with enthusiasm though).
Quote:
Originally Posted by detbuch
So, under what Constitutional provision, enumeration, whatever, does the Federal Government have the power to legislate individual gun ownership?
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There is none.
No power was ever granted to the federal government to have any interest whatsoever in the personal arms of the private citizen and in fact, the private citizen and his personal arms are twice removed from any Congressional "militia" authority.
People forget (purposely I think) what the framers considered the nature of our rights to be . . . To them, rights were "exceptions of powers never granted" . . . essentially the "
great residuum" of everything not conferred to government. It was asked, why add a "bill of rights" to a specific, clearly defined "bill of powers"?
The
Federalists argued emphatically against adding a bill of rights; to them a bill of rights was considered a redundant and dangerous absurdity.
A bill of rights "
would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
Of course the Federalists "lost" the debate over adding a bill of rights but the 9th and 10th Amendments stand as testament to the universally accepted status of their arguments.
Quote:
Originally Posted by detbuch
And if the answer is the Commerce Clause, or General Welflare Clause, that is mostly the kind of non-sensensical, muddied-up "interpretation" that has pretty much made the Constitution a toy for judges rather than a structure of government, and is the type of "interpretation" that Madison referred to when he said "If not only the means but the objects are unlimited, the parchment should be thrown into the fire at once."
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But it is precisely that kind of invented powers that the left needs and rests its arguments on.
Now it is being threatened that
gun control measures will be "enacted" through Executive Order.
Are these Constitutional idiots really that stupid?
Can any supporter of this administration explain how gun control can be "enacted" by EO?
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