Gun Ban is Constitutional

According to this, the federal appeals court has determined that states may legislate the type of firearms you may own.  For what it’s worth, they are right.

The 2nd amendment to the Constitution is binding on the Federal government.  It is not binding on the states.  Many states also have state constitutions.  Virginia, for example, specifically recognizes an individual right to own arms.

No constitution grants unrestricted rights to weapons.  Therefore, a state may pass legislation to restrict certain brand names, or even something as stupid as a color or firearm.  The test for constitutionality would be, “does this law make the mere possession of firearms a criminal act or does this legislation make firearms ownership so unattainable that it effectively restricts the rights of the individual.

Hypothetical case 1:  If the state of Bloatsylvania passed a law that regulated all handguns must be 9mm para and all other forms of handguns less than 12” in length shall be confiscated, that law would not be in violation of the constitution.  It is simply regularizing a firearms standard.  The wisdom of doing so is not relevant.

Hypothetical case 2:  The City of New Bloat passes a law requiring gun owners to pass a competency test.  The test is only conducted by the police department once a year and classes are limited to the first 5 people who apply.  The cost of the class is $5000.  This would violate the constitution because it would effectively create a barrier to the private ownership of firearms.

Hypothetical case 3:  The Nation of ‘Murica passes a law in congress that declares the 2nd amendment only applied to muzzle loaded black powder firearms.  This would be unconstitutional since it would effectively prevent access by the people to EFFECTIVE firearms.

Arguments about the militia are not relevant.

Arguments about the stupidity of magazine size restrictions are irrelevant.

Arguments about your demands to own a specific brand name or design are irrelevant.

The Constitution does not guarantee you can buy any gun you want, or even any gun you can afford.  Nor can the constitution demand that new gun technology will be created and compete favorably in the future marketplace.

The Heller decision is irrelevant (and wrongly decided).

Military utility is irrelevant.

What is relevant:

  1.  You have a God Given right to self preservation. If you are an atheist you don’t.
  2. The US Constitution recognizes that you have a right to possess the means to that preservation in the form of effective firearms.  As such, the Constitution forbids the Federal government from infringing on that right.
  3. Some States also respect that right, others do not.
  4. Regulating the brand names features or styles of firearms is not regulating firearms, it is regulating commerce, in exactly the same way government at various levels do all the time.
  5. The check and balance on this system is to vote out politicians who try to disarm you and replace them with people who won’t.
  6. The federal appeals court is not empowered to decide if a state law is a good idea.  They have a very limited scope of authority.  Despite many courts overstepping their authority, their authority is limited to deciding if the law violates the federal constitution.

In this case, the courts decided rightly, but they did it for all the wrong reasons and even when the law was on their side, they just couldn’t help themselves.  They obviously upheld the law because they agreed with it’s purpose, not because of the merits of the case.  It makes me wonder why we bother to have Senate confirmation of judges when there is a 50-50 chance of getting a better judge by randomly selecting people at Walmart.


About No One

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6 Responses to Gun Ban is Constitutional

  1. Heresolong says:

    MacDonald incorporated the Second Amendment. It therefore applies to state governments to the same extent that it applies to the federal government. The only ones left unincorporated are III: quartering of soldiers (apparently the states can still do that to you although none ever do), V grand jury, VII jury trial in civil cases, and VIII excessive fines. Easily found list on Wikipedia.


    • No One says:

      Doesn’t matter. The points of my argument are unchanged. As long as guns are available in the marketplace, the right is not infringed. Regulating trade is constitutional.


  2. Heresolong says:

    Wait, how was Heller wrongly decided? DC had a gun ban. You couldn’t get a permit to own a gun unless you already had one pre-sometime in the 70s. DC is a federal enclave so falls directly under the purview of the federal government. Everything they do is by permission of Congress. If there were one place in the US that the Second Amendment absolutely should apply, even absent incorporation, it would be DC.


    • No One says:

      The Second Amendment right is not absolute and a wide range of gun control laws remain “presumptively lawful,” according to the Court. These include laws that (1) prohibit carrying concealed weapons, (2) prohibit gun possession by felons or the mentally retarded, (3) prohibit carrying firearms in sensitive places such as schools and government buildings, (4) impose “conditions and qualifications on the commercial sale of arms,” (5) prohibit “dangerous and unusual weapons,” and (6) regulate firearm storage to prevent accidents.
      Thus, the court could point to Heller to take both sides of the law that “reasonable purposes” decided by courts trumps the civil right.


  3. Heresolong says:

    Nope. An outright ban does not qualify as “reasonable restrictions”. Wouldn’t fly under any protected right other than the Second, shouldn’t fly under the Second. Otherwise one could ban free speech, free exercise, etc completely and then make the same argument that you are only imposing reasonable restrictions. A right that is banned is, by definition, not a right. Heller was 100% correct and MacDonald was just a long overdue extension that had been granted for every other right.

    So just out of curiosity, are you arguing that the government could ban the printed and electronic dissemination of information on the grounds that so long as you can still speak your right to free speech has not been infringed? Are you also arguing that the government could adopt a single standard firearm (say a .17 caliber air rifle), make one and only one available to each person who wanted one, make one round available to each person each year, and then claim that this satisfied the protection? I don’t think your definition of what constitutes a “right” holds too much water.


    • No One says:

      The term “right” does not carry the legally significant weight you think it does. It is synonymous with grant, license, and priveledge in the English language and under law. Yes. Congress may “regularize” the firearms TRADE just like any other TRADE. If you will let your government tell you how much water to use to flush your toilet, you will literally permit anything.


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