The 2nd Amendment protects the right to own Weapons of War, no?

[Aim1]

People talk about the practical uses of semi-automatic weapons like the AR15 for hunting, self-defense, competition, and recreational shooting however the 2nd Amendment protects the right of individuals to own firearms to protect against enemies of the country and in case our own government becomes tyrannical, not hunting, competition, or recreational shooting. And for this purpose a fully automatic weapon would be far better than a semi-automatic one.

Obviously we've accepted the fact that fully automatic weapons are basically banned (National Firearms Act if I'm correct) and most likely will never come back to common ownership, but in reality, isn't this the exact weapon that the 2nd Amendment is supposed to protect us owning? The law just bans it and we've never really fought too hard in getting them back and now a days I don't think we could.


Doesn't the 2nd Amendment protect the right to own weapons of war?


Even if we were allowed fully automatic weapons up until this point in time I'm not sure how long it would be before they were banned.

 

[Rudolph31]

The 1938 Miller decision ruled that Miller’s short barreled shotgun wasn’t protected by the Second Amendment as it had no military use.

 

[Good Ol' Boy]

Stop regurgitating MSM terms.

The 2A is meant for us to have the same weapons that our govt has, in order to fight tyranny should it ever be necessary.

 

[barnbwt]

Yes. The reason the hunting angle is pushed, is because hunting is easily restricted or prohibited. If hunting is the only accepted use for firearms (i.e. before 1994) then the government can more or less ban anything it cares to declare as 'non-sporting' and completely control how whatever is left gets used. This is the exact pattern repeated from England to Japan.

 

[barnbwt]

The 1938 Miller decision ruled that Miller’s short barreled shotgun wasn’t protected by the Second Amendment as it had no military use.

And yet short shotties were in the trenches ten years prior...

 

[George P]

Condi Rice is WRONG

 

[Sovblocgunfan]

Keep in mind that the gist of your question is largely academic, and doesn’t match well with real world application. So my answer will be the same.

The left is fond of saying the first amendment protects our ability to say whatever we want; and therefore the most odious speech protected because it needs protection the most.

Yet our speech is often regulated in practice. There is the old saw about yelling fire in a crowded theater, you can’t libel or slander someone without penalty, and “hate speech” is a crime.

The second amendment is supposed to protect those arms that need protection the most, yet these are the ones that are the most heavily regulated. I can have a tank, but rgulations surrounding the gun and ammo are oppressive and onerous. It’s easier to demill the gun, and thus my behavior is self-regulated.

Yeah. The second is supposed to protect my right to own and arm a tank. Or fighter plane. Or battleship. But here we are.

 

[George P]

you can’t libel or slander someone without penalty, and “hate speech” is a crime.

Not if you're a progressive socialist - you get a free pass

 

[hdwhit]

Aim1 asked with respect to fully automatic weapons,
...isn't this the exact weapon that the 2nd Amendment is supposed to protect us owning?

Not according to the courts. Cases like Farmer v. Higgins, 967 F.2d 1041 (1990) and, more recently, Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) have held against private possession of machine guns (except for those already registered in 1986) and the Supreme Court has seen fit to let the decisions stand.

The decision in Hollis, id., concludes by saying, "...machineguns are not protected arms under the Second Amendment." So, to answer your question, the courts have concluded and the Supreme Court has not seen fit to correct them in ruling that machine guns are not the exact weapons the 2nd Amendment is supposed to protect us owning.

 

[hdwhit]

But, Aim1, if you want something more than a layman's answer based on a couple of minutes of Lexis research, I suggest you post your question to the Legal forum and let the attorneys explain the current state of Second Amendment case law.

 

[KYregular]

I never saw where the second ammendment banned cannons so, I believe the answer is evedent.

 

[AlexanderA]

And yet short shotties were in the trenches ten years prior...

Absolutely. But no evidence had been introduced to that effect in the Miller case record, and the Court was unable to take "judicial notice" of this as a commonly-accepted fact.

The Miller case was taken to the Supreme Court as a vehicle for upholding the NFA. It was all orchestrated. While I like the rationale of the Miller case (under that rationale, a machine gun would have been protected by the 2nd Amendment, since the Court could not help but take judicial notice that machine guns were ordinarily used by the military), we need to be honest. If in fact Miller's crime was possessing a machine gun, the Court would have found some other rationale to uphold the NFA. Under no circumstances were they going to declare the NFA unconstitutional.

Nevertheless, as precedent, I like the Miller case a lot better than Heller.

 

[AlexanderA]

People talk about the practical uses of semi-automatic weapons like the AR15 for hunting, self-defense, competition, and recreational shooting however the 2nd Amendment protects the right of individuals to own firearms to protect against enemies of the country and in case our own government becomes tyrannical, not hunting, competition, or recreational shooting. And for this purpose a fully automatic weapon would be far better than a semi-automatic one.

Obviously we've accepted the fact that fully automatic weapons are basically banned (National Firearms Act if I'm correct) and most likely will never come back to common ownership, but in reality, isn't this the exact weapon that the 2nd Amendment is supposed to protect us owning? The law just bans it and we've never really fought too hard in getting them back and now a days I don't think we could.

Doesn't the 2nd Amendment protect the right to own weapons of war?

I agree with you completely. IMO, the 2nd Amendment's original purpose was that the people (synonymous with the militia) be as well armed as the standing army. However, after the Heller case, that's not the state of the law today. We have Justice Scalia to thank for emasculating the Militia Clause, turning it into a "prefatory" nullity. In Scalia's view, the core of the Amendment revolves around personal self-protection. And, according to the decision, a handgun kept in the home (licensed and registered) appears to be adequate for that. This is what's so frustrating about the Heller decision. It's almost the exact opposite of the Founders' intent, as expressed in their historical documents. And this coming from Scalia, an "originalist"! The only charitable explanation I can give for this is that he was trying to convince Justice Kennedy, the swing vote.

 

[Curator]

The FDR Supreme Court Upheld the NFA because it was a revenue producing TAX which the government is allowed to impose. The Miller case was a clear case of political arm-twisting by FDR as at least two of the justices knew that short barreled shotguns were in use by the military at that time. I am sure Mses Sotomayor, Ginsberg and Kagan are above political pressure. Miller clearly makes the case for "Military-type" firearms as being protected for use by Americans. Not that MSNBC, CNN, or PBS much care. Emotion is always stronger than reason or logic.

 

[CoalTrain49]

Congress voted. Congress is elected by the people. The people didn't want anymore full auto weapons in the civilian population (NFA 1934). I doubt they would want them to return.

We are having a very hard time just keeping semi-auto weapons in the civilian population.

NFA isn't a discussion anyone in congress is having right now.

Are you current?

 

[herrwalther]

ANY weapon is a weapon of war. If your life is on the line and you have a gun, that is what you have. I don't care if its a stick, gun, or taser. If it comes down to lethal force, anything you have is a weapon. Acts of Congress and Supreme Court interpretations have watered down the Second Amendment quite a bit over the last 90 years.

 

[bnolsen]

Me personally I would like 2 or 3 round burst as full auto is only useful for suppression. We as civilians should be working on accuracy in the field and not using the combined armed approach the military uses since we don't have easy access to arty or aircraft to elimate any suppressed enemies. Just my generally useless opinion which only applies to our current level of technology. The whole SBR thing is really what burns me the most.

 

[caribou]

The Right to Bear Arms is to defend on's self, and country. The Constitution of the United States IS our country.

The Right to Bear Arms for Militia is expressly a Military in nature, and we the Citizens ARE the Militia, we are every able body.

The Right to Bear arms is to stop or unroot a Tyrannical and criminal govornment.

Just read the Preamble to the Declaration of Indipendance , it explains it pretty well.


''We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.''
ETC, Etc,Etc.

And with that, we delared war on England.

Thats how it started, and why the 2nd A is there. An armed poulace, even with just small arms, is a threat enough to be under constant attack by those who fear it ralther than embrace it and take reponsibilty for its use, care and implamentaion.

Be a Citizen, buy a gun, use it responsibly.

 

[Jackal]

Its not a weapon of war until you've used it in war. Same with assault weapons. Its not an assault weapon until its been used in an assault. If you shoot targets with it, its a target rifle. If you shoot varmints, its a varmint rifle. The only thing that makes a rifle a sniper rifle is the sniper. Etc.

 

[yokel]

Indeed, the anti-gun factions have historically made substantial progress by frightening the American public. The execrable NFA & GCA legislation passed into law due to the hysteria created in the general population.

It is chilling to watch our "elite" and their unwitting teenage dupes hunt around for someone or something to use as a scapegoat to justify their failed policies and continuous grasp for power and control.

America's most dangerous enemy is its own imagination run wild. There is an epidemic of people convinced that our world or society is coming to an end for one reason or another. They say something horrible will happen unless drastic steps such as the National Firearms Act of 1934 or the Gun Control Act of 1968 are taken. Their fears will become a self-fulfilling prophesy unless people stop looking at our society as a place where the tyranny of the majority forces its concept of "good" on its neighbors.

 

[AlexanderA]

The Miller case was a clear case of political arm-twisting by FDR as at least two of the justices knew that short barreled shotguns were in use by the military at that time.

For a judge to "know" something (personally) is not the same thing as the doctrine of "judicial notice." "Judicial notice" is a limited exception to the rule that every material fact in a case must be introduced as evidence at trial (subject to objections by the other side, etc.), and then be part of the appellate record. It is rare to thus be able to short-circuit the rules of evidence.

Miller's trial lawyers blew it, and the fact that he presented a weak case may have been one reason why the case was taken up by the Supreme Court, as fodder to hold the NFA constitutional. Besides that, Miller himself was already dead by the time his case got to the Supreme Court.

 

[AlexanderA]

Miller clearly makes the case for "Military-type" firearms as being protected for use by Americans.

Yes, but Justice Scalia completely gutted that reasoning in the Heller case. First he said that the Militia Clause was inoperative "prefatory" material, and then he said that "dangerous" weapons, such as machine guns, were not protected. The Miller case was not formally overruled (by Heller), but, yes, it was overruled for all practical purposes. The Miller result (that the NFA is constitutional) is still good law, but the rationale isn't.

(Scalia went overboard in negating the Militia Clause because he was arguing (against the dissenting Justices) that the 2nd Amendment described an individual, and not a collective, right. He overlooked the idea that the individual right is inherently contained within the collective right, if we correctly assume that "the people" is synonymous with "the militia," and that "the people" is made up of individuals. For such a vaunted "intellectual," Scalia fell flat on his face intellectually in writing the Heller opinion. If you parse the nuances of the Heller opinion, it's just terrible. It's intellectual garbage. And to think that gun-rights people were overjoyed when it came out...)

 

[AlexanderA]

The 2A is meant for us to have the same weapons that our govt has, in order to fight tyranny should it ever be necessary.

I agree, but the Supreme Court doesn't agree, and their opinion counts more than ours. Thank Justice Scalia for that. He would have labeled us "insurrectionists."

 

[JeffG]

Be a Citizen, buy a gun, use it responsibly.

That's the biggest takeaway from all of this!!

 

[edwardware]

Even a passing familiarity with the concurrent writings of the founders (Federalist Papers, etc) leaves no doubt: the Second Amendment enshrined (not created) the right to possess military arms, for the purpose of fighting military (foreign or domestic) opponents.

If it were possible to invent a firearm that was only useful for sporting, but not for warfare, you would have no 2nd Amendment right to own it.

I suspect that next major challenge in 2nd Amendment jurisprudence is going to be the jump from firearms (with clear technological lineage to muskets) to handheld energy weapons.

Just like it was a challenge to apply the 4th Amendment protections against search and seizure to digital property, it's going to be a challenge to apply 2nd Amendment protections to non-firearm arms.