IMHO "Assault Weapons" Ban Is Not Unconstitutional

[bushmaster1313]

From my perspective, it is not unconstitutional to ban scary looking guns.

Many of us believe that the "Assault Weapons" ban was rather silly because it banned cosmetic features. The ban might be silly, but that does not make it unconstitutional.

Let's assume that a bayonet lug and a flash suppressor are both cosmetic features and there is no justification to ban them based on public safety. That does not mean it is unconstitutional to ban them. If they are truly cosmetic, the right to keep and bear arms is not infringed by not being able to have them.

We want assault rifles precisely because they are more effective in certain situations than a "hunting rifle".

A ban on high capacity magazines may or may not be constitutional, but it is certainly NOT a cosmetic feature.

More to the point. What if a statute was enacted banning handguns printed with pictures of baby animals? This would certainly be constitutional because banning such handguns would not be expected to infringe on anyone's right to keep or bear arms.

And if you do not like that, how about banning handguns imprinted with the message: "This is a fake gun" Lots of good constitutional reasons to ban such firearms.

 

[General Geoff]

I would argue that cosmetic features being banned does not violate the second amendment, but it does indeed violate the first (cosmetic features could be considered aesthetics, even art. First amendment protects most art).

So, unconstitutional for a different reason, but unconstitutional nonetheless.

 

[bushmaster1313]

First amendment protects most art

Good point, but the right to untasteful art does not extend to untasteful art that is also unsafe.

 

[General Geoff]

Actually, a lot of times, it does. Chainsaw ice sculpting isn't exactly the safest activity, but it is still protected art. Also protected are tetanus-ridden hulks of twisted, rusted metal known as junk yard art. There's plenty of literature that's considered dangerous (anarchist's cookbook, anyone?), yet is still protected.

 

[DeepSouth]

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..... Unless it is a scary looking gun!

No offence but it don't read like that.


Your wrong, IMO.

 

[General Geoff]

Good point, but the right to untasteful art does not extend to untasteful art that is also unsafe.

Furthermore, I contest your presumption that any cosmetic feature banned by a current state or local AWB is inherently unsafe.

 

[bushmaster1313]

I was very concerned that the Heller case was going to protect long guns but allow a ban on handguns. It's hard to say that a homeowner standing on his or her threshold with a shotgun is not keeping and bearing arms! Fortunately the Court was convinced that some people of smaller stature and strength might need a handgun because a shotgun is too large.

However, the Second Amendment, IMHO, means that the Government cannot prevent the citizen from keeping and bearing arms.

The Second Amendment was not intended to protect the ability of the individual to express his or her personality based on the cosmetic features of their firearms.

The choice to keep a weapon in one's home. Recognized by Heller.
The choice to bear arms in public. Recognized by me
The right to have a firearm in the color of one's choice? I don't think so.

 

[Rail Driver]

From my perspective, it is not unconstitutional to ban scary looking guns.

So from your perspective it's also not unconstitutional to ban a person from entering a particular place because of his cosmetic appearance?

Sorry, your original post comes off as a bit silly to me, hence the equally silly response.

On Edit: Also, the Bill of Rights is a single document, and each amendment in that document (as well as the rest of the amendments, and the constitution itself) are intended as a single document. Though the document and it's intent and purpose aren't perfect, each amendment and each section, and each article was meant to work with the rest of them. We can't have a 2nd Amendment without the 1st Amendment, and what would the Bill of Rights be without either, not to mention the rest of them.

Would it be constitutional for the government to ban everything except slingshots since slingshots are "arms" so the right to keep and bear arms is still in effect, just regulated to the point we can only have slingshots?

It's statements and ideas like yours that are to blame for the Boxers and Bradys and Pelosis and Dalys we're dealing with now.

 

[bushmaster1313]

Furthermore, I contest your presumption that any cosmetic feature banned by a current state or local AWB is inherently unsafe.

I do not say that any of the cosmetic features are inherently unsafe.
What I say is that an unsafe feature not related to utility could be banned, such as pictures of cute animals or the false identification of a real gun as a toy.

 

[bushmaster1313]

So from your perspective it's also not unconstitutional to ban a person from entering a particular place because of his cosmetic appearance?

Sorry, your original post comes off as a bit silly to me, hence the equally silly response.

Many say that it is unconstitutional to ban a gun based on cosmetic features.

To me, if the feature is only cosmetic, its banning is not an infringement on the right to keep and bear arms.

Would it be constitutional for the government to ban everything except slingshots since slingshots are "arms" so the right to keep and bear arms is still in effect, just regulated to the point we can only have slingshots?

I was afraid that this might happen but delighted that it did not.

Please explain how the banning of pink guns would prevent someone from keeping and bearing arms.

 

[General Geoff]

What I say is that an unsafe feature not related to utility could be banned, such as pictures of cute animals

Again, first amendment.

Also, I really doubt a ban on writing on a firearm that says "this is not a real gun" would hold up in court, in the same way that it's not illegal to paint the tip of your rifle orange, despite the fact that most toy guns are required to have orange painted tips.

Dumb? yes. Illegal? no.

To me, if the feature is only cosmetic, its banning is not an infringement on the right to keep and bear arms.

Fortunately, the right to keep and bear arms isn't the only right protected by the Constitution and Bill of Rights.

 

[DeepSouth]

With your line of thinking they could ban guns that have a bolt handle, after all they make them look like "Sniper Rifles" How about pistols with hammers, the hammers are just cosmetic, lots of manufactures make pistols without hammers.



If the rest of the country thought like we would have nothing but Muskets, and according to your line of thinking no Constitutional violations would have occurred, because we were still bear arms.

 

[Schofield3]

wow, with a name like bushmaster I didn't expect a thread like this coming....

 

[General Geoff]

Please explain how the banning of pink guns would prevent someone from keeping and bearing arms.

Everyone who only owns a pink gun.

 

[Greg Koziol]

The 2nd amendment was purposely enacted by the creaters of this country to protect US, THE PEOPLE, from TYRANNY and OPPRESSION. They knew what life was like under british rule and they didn't want their kids and grand kids, and great grand kids, and other generations in front of them to suffer like they suffered. They wanted to make America a better place... the 2nd amendment not only gives us the RIGHT TO KEEP AND BEARS ARMS, but also we have a 2nd amendment right to ASSEMBLE INTO MILITIAS... which is clearly stated in the 2nd amendmendt. Unfortunately the Devil is using his pawns in washington D.C. to fool and trick the masses into abolish the 2nd amendment so the Devil can grow his kingdom on earth by reducing our power to assemble and to protect ourselves.

 

[DeepSouth]

IMHO "Assault Weapons" Ban Is Not Unconstitutional

Many say that it is unconstitutional to ban a gun based on cosmetic features.

To me, if the feature is only cosmetic, its banning is not an infringement on the right to keep and bear arms.

Are bayonet lugs ONLY cosmetic......NOPE
Are Flash suppressors ONLY cosmetic .........NOPE

So do you think the AWB is unconstitutional or not?

Please explain how the banning of pink guns would prevent someone from keeping and bearing arms.

Please explain to me how banning all guns that are not painted blaze orange is not a Constitutional violation, you could still bear arms, right.

 

[FTSESQ]

Good point, but the right to untasteful art does not extend to untasteful art that is also unsafe.

Um... actually it does. Especially when it comes to speech (aka verbal art). Many would argue that Neo-Nazi or KKK speeches, pamphlets, rallies, and demonstrations are unsafe (can easily incite riots, brawls, etc) but their right to free speech is still protected no matter how ugly.

The main reason of the Second Amendment is protection. Protection of the individual, and protection of the country, from all enemies; foreign or domestic, even if that means protecting the country form its government. When you ban the "scary" "features" you are actually banning the features that make the weapon a better tool for which it was designed. Thus, you are indeed undermining the Second Amendment, in-turn, making said ban unconstitutional.

 

[FTSESQ]

Please explain how the banning of pink guns would prevent someone from keeping and bearing arms.

It could be argued that this would unfairly build in an anti female bias, thus preventing females from fully participate in their Constitutionally protected rights. Look at so many of the causes championed by women, such as Breast Cancer Awareness, they use the color pink as a symbol of feminine strength. Preventing this would be discrimination on the basis of gender, and thus unconstitutional.

 

[bushmaster1313]

My point is that if a feature is only cosmetic its banning doesn't really amount to a hill of beans.

Therefore, IMHO, we should not rely on the "cosmetic" nature of the assault weapons ban when seeking help from the Constitution.

If we want those features because those features make them better weapons we should not call them "cosmetic". The Second Amendment protects the right to keep and bear arms, not cosmetic features.

By the way, a folding stock can be a safety feature. A folding stock allows certain rifles, which might otherwise not be safely secured in a home with small children, to be safely secured in a carpenter's box while the kids are still small.

 

[FTSESQ]

My point is that if a feature is only cosmetic its banning doesn't really amount to a hill of beans.

But this opens the door to the what is cosmetic and what is functional question. What if something is both cosmetic and functional? Does it have to be at least 51% functional to be considered legitimate? Are we to result to the old "I can't define it but I know it when I see it" line? The point is that the people that we employ (and we pay them A LOT of money) to safeguard our liberties should not be making any decisions, or attempting to make policy, based on something as silly as a cosmetic feature, functional or not. In fact, they should not be advocating the undermining of any of our liberties. Their main focus should be securing and expanding our rights.

 

[JDoe]

From my perspective, it is not unconstitutional to ban scary looking guns.

Well since SCOTUS says that the 2A is a fundamental right* and incorporated against the states through the Due Process clause of the 14A Rational basis review is out so that leaves intermediate or strict scrutiny.

Strict scrutiny arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the "liberty" or "due process" clause of the 14th Amendment...

So intermediate scrutiny is probably out as well.

...To pass strict scrutiny, the law or policy must satisfy three prongs:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

So yeah, I think your perspective is incorrect but it did provoke an interesting discussion.

*From page 31 of the McDonald decision. "In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

 

[General Geoff]

My point is that if a feature is only cosmetic its banning doesn't really amount to a hill of beans.

What part of "first amendment" don't you understand?

AWBs that exist currently, did not get there on the premise that they banned scary looking cosmetic accessories, they were enacted due to the erroneous belief that those features somehow made them more lethal or dangerous (due to being "military-style"). Assuming these rifles are deemed to be protected by the 2A by the courts, it doesn't matter what the features are, be they practical or cosmetic in nature; they will be protected by the second or the first amendment.



edit; in summation, if those who want to keep the bans in place acquiesce to the reality that most of the features are mostly cosmetic, the government has no compelling reason to ban them, thus it's unconstitutional re: the first amendment. If they continue to hold that the features actually make them more effective weapons, then they are protected under the second amendment, again making the ban unconstitutional. The bans will fall either way.

 

[ForumSurfer]

I feel it is road best left untraveled. First, they start banning items on my scary black rifles, like bayonet lugs and flash suppressors. That means all of a sudden, my black rifle and some of my father's wwi and ww2 era firearms are illegal. We modify them to keep up. Then let's ban anything over ten rounds. Now we have to spend more time reloading when shooting on weekends. Now let's outlaw detachable magazines "because you don't need them for hunting" is a common argument. So I have to sell my ar's for aluminum scrap.

Let's ban pink rifles, too. I'm currently pricing out ruger 10/22 parts for my girlfriend, who coincidentally turned out to be a natural and out-shoots me from time to time. I can see why the pink thumb-hole stock that I was going to have modified (breast cancer ribbon burned into the stock in memory of her grandmother) is a bad idea. Pink guns get people involved in shooting and we don't want that.

While it may not be exactly unconstitutional, it paves the way to infringement. Are we going to get together and burn scary books next? What next? Scary boats? Scary cars that are designed to travel in excess of the max US posted speed limits?

 

[CSballer89]

Good point, but the right to untasteful art does not extend to untasteful art that is also unsafe.

How exactly is a flash suppressor and a high-cap magazine unsafe? I can say that I am just as accurate with 10 Rds. as I am with say, 30. and last time I checked a flash suppressor does nothing to the trajectory of ballistics, does not increase armor penetration, or even make it quieter. I agree that a bayonet may be dangerous but banning those is basically telling someone who has a rifle that they are bad for having a knife. You make very little if any common sense.

 

[FIVETWOSEVEN]

One thing to take to mind is that those that write these bills typically know nothing about guns. They look at hunting guns which typically don't have a flash surpressor or a bayonet lug and they figure that we don't need them. Also they add a look to the gun that makes it look "more scary" and thats the main reason why.

(Disclaimer: Its late for me and I'm tired so this may not be the best worded thing i've typed or express my point accuratly.)