Roe and Guns

[Bootstrap]

Roe found new constitutional rights that went way beyond historical interpretation, legislating from the bench. Just like recent decisions on guns.

If we don't want legislation from the bench, I think that applies to both.

The Constitution explicitly mentions a right to bear arms and the country had plenty of historical precedent to exercise this right. If you read Thomas’s decision, he lays out exactly what this historical precedent is.

The Constitution doesn’t mention a right to abortion at all and there is no historical precedent for it either.

Neither does the Constitution mention a right to bear arms for the purpose of self-defense. The 2nd Amendment did not apply to states at the time it was passed, it only blocked the federal government, and it specifically discusses this in the context of "a well regulated militia" and "a free state" - which should not be disarmed by the federal government:

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.

For most of American history, the 2nd Amendment was rarely discussed. Of course states and cities had the right to regulate guns. And we now have a standing army. And state militias are not the primary military force the way they had been. So the 2nd Amendment wasn't terribly controversial or terribly interesting until more modern controversies about extending gun rights.

In 2008, Heller was the first Supreme Court opinion to say that this was about the right to have a gun at home for the purpose of self-defense as well. And this week, the Supreme Court says that you have a right to bear arms for the purpose of self-defense outside of the home. That's not in the Constitution. And it's not miles apart from what Roe did when it said that the Constitution gave people the right to live their own lives without government interference, finding a right of privacy. Here, the court found a right of bearing arms for the purpose of self-defense.

In their ruling that overturned Roe, the Supreme Court says that abortion law was up to the States until Roe. That was basically true of gun laws too. In Heller and in last week's decision, the Supreme Court extended new rights on guns, trumping state law.

[Soloist]

If people have the right to bear arms for the point of a well regulated militia then one could rightly argue that the weapons should be capable of actually defending against military incursion.

From that perspective, a rifle that can fire 1 round before reloading is no serious threat to a military but a semi auto capable of firing 30 rounds in reasonably rapid fire is a threat to infantry. Now to properly address vehicle threat, we also need to permit rocket launchers.

Now to address the well regulated militia aspect, perhaps a compromise is that anyone wishing to own weapons capable of defending against military incursion should have to take an oath and respond to orders from government officials as required for defense of the state. This would also require background checks, mental health evaluation and a physical to deem if this person is capable of mounting defense in the name of the state.

Now if you were unwilling to comply with any of the requirements to be a well regulated militia member then your goal is hunting and you have no need of a rapid fire weapon and could be limited to 1-3 rounds prior to reloading.

Problem solved. Now everyone is mad.

[Robert]

Neither does the Constitution mention a right to bear arms for the purpose of self-defense.

It does not have to. The right to bear arms is a God given right that should not be infringed upon as the other rights in the Bill of Rights without due process.

The 14th Amendment supports this also.

[Bootstrap]

Problem solved. Now everyone is mad.

If I were on the Supreme Court, I would be extremely tempted to leave this up to the states. And extremely reluctant to make decisions that break new legal ground, find new rights, and trump the authority of states to decide what works best for them.

New York has very different feelings on this subject than Wyoming does. And a very different history. That said, rural and urban New York have very different feelings on this subject ...

But why is the Supreme Court legislating here?

[Bootstrap]

Neither does the Constitution mention a right to bear arms for the purpose of self-defense.

It does not have to. The right to bear arms is a God given right that should not be infringed upon as the other rights in the Bill of Rights without due process.

The 14th Amendment supports this also.

So if the Supreme Court thinks something is a God given right, they can require it even if the Constitution does not? Is there a limiting principle here?

[Only an Anz]

Neither does the Constitution mention a right to bear arms for the purpose of self-defense.

It does not have to. The right to bear arms is a God given right that should not be infringed upon as the other rights in the Bill of Rights without due process.

The 14th Amendment supports this also.

....according to what Scripture?

[Ken]

Modern warfare is not about small arms anyway. The idea that a militia of men carrying automatic rifles would have much combat effectiveness against an invader is not born out by any military experience since about the Civil War. For example, the Pentagon did a lot of studies of the use of combat arms during WW2 and found out the following: http://history.amedd.army.mil/booksdocs ... tm#table14

A report on the causative agents of battle casualties in World War II showed the comparative incidence of casualties from different types of weapons for several theaters. Compilers of the report believed that, while the more detailed subdivisions within their three major classes were open to question, their findings on the percent of total casualties due to small arms, artillery and mortars, and "miscellaneous" were reasonably accurate.

From these they drew the following conclusions:

1. Small arms fire accounted for between 14 and 31 percent of the total casualties, depending upon the theater of action:

The Mediterranean theater, 14.0 percent

The European theater, 23.4 percent

The Pacific theaters, 30.7 percent.

2. Artillery and mortar fire together accounted for 65 percent of the total casualties in the European and Mediterranean theaters, 64.0 and 69.1, respectively. In the Pacific, they accounted for 47.0 percent.

In other words, if you want to stand up a militia that will be remotely effective against any type of modern military force you need to focus on artillery and mortars. Yet I don't see anyone claiming that we need to arm up civilians with mortars much less artillery howitzers, rocket launchers and the like. Those all meet the definition of "arms" under the 2nd Amendment, especially if we are talking about militia combat. And those are pretty much the focus of most of the fighting today in Ukraine. In addition to armor, anti-tank weapons, and anti-aircraft weapons. Ukraine isn't fighting the Russians with squads of militias carrying AR-15s.

And that doesn't even get into the subject of air power. An Apache helicopter is an "arm" as is an Abrams Tank. Do I have a "God Given" right to own an Apache helicopter armed with Hellfire missiles to defend my home against my neighbor or foreign invaders?

[Szdfan]

Neither does the Constitution mention a right to bear arms for the purpose of self-defense.

It does not have to. The right to bear arms is a God given right that should not be infringed upon as the other rights in the Bill of Rights without due process.

The 14th Amendment supports this also.

....according to what Scripture?

I had the same thought. What’s the basis for proclaiming gun ownership a God-given right? The Constitution never mentions God. The Declaration of Independence mentions God but not gun ownership.

[Ken]

It does not have to. The right to bear arms is a God given right that should not be infringed upon as the other rights in the Bill of Rights without due process.

The 14th Amendment supports this also.

....according to what Scripture?

I had the same thought. What’s the basis for proclaiming gun ownership a God-given right? The Constitution never mentions God. The Declaration of Independence mentions God but not gun ownership.

And God never ONCE mentions guns anywhere in the Old or New Testament.

[Szdfan]

....according to what Scripture?

I had the same thought. What’s the basis for proclaiming gun ownership a God-given right? The Constitution never mentions God. The Declaration of Independence mentions God but not gun ownership.

And God never ONCE mentions guns anywhere in the Old or New Testament.

Obviously, you’re reading the wrong Bible.