More mythology on the Constitution

[Hermit]

Well, technically the laws are not "unconstitutional" because they "reasonably regulate" the exercise of the right without actually banning anything, and as I said the NFA is a tax law, not technically a gun control law.

The 1968 Gun Control Act is an infringement on the right to bear arms in so far as it prohibits the importation of automatic firearms. The 1986 Hughes Amendment is an infringement on the right to bear arms via the outright ban on private ownership of automatic guns that were manufactured after 1986. I would argue that the imposition of a 200 dollar tax on every automatic weapon by the 1934 National Firearms Act is a real and material infringement too. For all practical intents and purposes the tax restricts the right to bear automatic firearms to men of means. $200 in 1934 are equivalent of about $3000 today. As the the 2nd Amendment stands, there is no such thing as a reasonable regulation to the right to bear arms, automatic or not, via taxation. If there were, there'd be nothing bar resistance by the public to stop Congress to tax that right out of existence.

[Tero]

You're going to have to ban all tax then. It infringes on the life liberty pursuit of happiness thing.

[pErvinalia]

Seth wrote:

...We'll be working on that once Obama is out of office and we have both a Republican President and a Republican Congress...

That man is deluded!

[pErvinalia]

That's precisely why it is necessary for law-abiding, god-fearing, Americans to arm themselves with rocket propelled grenade launchers loaded with purpose-built anti-personnel fragmenting high-explosive ammunition. To defend against criminals armed with two or more machine guns.

You can own an RPG and rockets if you like

I'm aware.

What I'm wondering at is where the 'defensive' arming ends. Do you feel secure enough in owning an RPG or do you require a tactical nuke or perhaps something even larger?

Nukes are "weapons of mass destruction" and therefore don't qualify and that canard is but an appeal to the consequences of a belief fallacy.

But, I do know people who own tanks, artillery and other large-bore weapons, along with ammunition for them. Interestingly, the only crime committed by a civilian with a tank was committed by a guy who STOLE IT from a National Guard armory because the idiots there didn't think to put a padlock on the turret hatch. Now they remove the batteries when the tanks are in storage.

Why should there be an "end" to what "arms" a law-abiding American can own? So long as it's kept and borne in a law-abiding fashion, it's not a threat to the public at all and it's quite literally none of your business, or anybody else's, who owns what and where they keep it. And if it's misused, well, we deal with that on a case-by-case basis as they occur, just like we do every other kind of crime. For example, we don't cut the dicks off of male babies and sew up the vaginas of female babies on the premise that the male babies might one day rape someone or that the female babies might become prostitutes, now do we? That's called "prior restraint" and it's a very dangerous power to allow government to wield because it is so frequently and easily misused...to far more detrimental effects than all of the firearms owned by all of the law-abiding people anywhere in the world.

Then, without the government stepping in and regulating what kind of arms you can own, where would the 'defensive' arms race end? With an M60 Patton tank in every driveway and a neighbourhood watch with a fleet of F-15 Strike Eagles?

[Seth]

Well, technically the laws are not "unconstitutional" because they "reasonably regulate" the exercise of the right without actually banning anything, and as I said the NFA is a tax law, not technically a gun control law.

The 1968 Gun Control Act is an infringement on the right to bear arms in so far as it prohibits the importation of automatic firearms. The 1986 Hughes Amendment is an infringement on the right to bear arms via the outright ban on private ownership of automatic guns that were manufactured after 1986.

Sorry to be so technical but it's NOT a ban on private ownership of machine guns made after 1986, it's a ban on MANUFACTURING or IMPORTING a machine gun for SALE TO private persons. Each machine gun produced has to be individually approved via either a Form 1 or Form 2. Form 1 is for non-SOT (Special Occupational Taxpayers, which is to say FFL licensees authorized to make NFA items) "making" of things like a short-barreled rifle or silencer yourself (not for sale) and Form 2 is for the FFL manufacturer and has to be submitted by the end of the next business day from when the firearm was finished or imported.

To sell any NFA item to anyone, including the military or police, a Form 4 (private tax-paid transfer) or Form 5 (police no-tax transfer) must be filed and approved by the BATFE before the NFA article can be transferred into the possession of the buyer. Thus, if one attempts to transfer a machine gun manufactured after 1986 to a private person on a Form 4, the transfer will be denied. But the law is not a "ban on the possession" of machine guns, just a ban on the transfer of NEW machine guns to private persons under the Commerce Clause authority of Congress, which is how it avoids conflicting with the 2nd Amendment. The thumb-your-nose aspect of the NFA to private persons is "Sure, you can own a machine gun...if you can find one and afford it." This is because the Supreme Court has not seen fit to overturn the Congress' authority to "regulate trade among the several states" that is the justification for banning the selling of new machine guns to civilians...which it should do.

I would argue that the imposition of a 200 dollar tax on every automatic weapon by the 1934 National Firearms Act is a real and material infringement too.

It used to be, and quite deliberately so. When it was enacted in 1934 you could buy a Thompson machine gun (Tommy-gun) at the local hardware store for about $150, so a $200 tax put it out of the reach of most people, quite deliberately. Fortunately Congress has not allowed that tax to be raised, ever, and now $200 is a pittance if you're paying $15,000 for a machine gun... which should cost about $800.

For all practical intents and purposes the tax restricts the right to bear automatic firearms to men of means.

Since when has that ever been a bar to Congressional actions?

$200 in 1934 are equivalent of about $3000 today.

Yup. But today it's nothing, which is why silencers are now so popular.

As the the 2nd Amendment stands, there is no such thing as a reasonable regulation to the right to bear arms, automatic or not, via taxation. If there were, there'd be nothing bar resistance by the public to stop Congress to tax that right out of existence.

Not really. All rights are subject to reasonable regulation in the public interest, including the right to free speech (you can't incite a riot or falsely shout "fire" in a crowded theater), the free exercise of religion (you can't practice human sacrifice or marry 12 year old girls...just ask Warren Jeffs), the freedom of the press (newspapers cannot public classified documents), and the right to keep and bear arms (you can't possess a firearm if you're a felon).

The sticking point is what is defined as "reasonably regulate." At the moment, any infringement on any fundamental right must face the "strict scrutiny" test the Supreme Court has established for such controversies. In the strict scrutiny test the burden lies with the government, when challenged, to prove that the government has a "compelling need" to regulate to begin with, that the regulation be the "least restrictive" possible degree of infringement that achieves a legitimate compelling public purpose, and that it actually accomplishes that legitimate compelling public purpose.

That's a pretty high standard, but it's not an impossible one by any measure.

Here the question would be whether there is a compelling need to ban the possession of, let's say, both machine guns and semi-automatic variants of military machine guns, whether such a ban is the least restrictive way of achieving whatever goal the government has set, and whether the regulation actually achieves that goal. Fail any of the three prongs and the law is unconstitutional.

So, let's say that Obama says "Mass murders using 'assault weapons' are a scourge that must be eliminated" and Congress passes an outright ban on the possession of such arms.

The first prong of the test asks "Can the government support the claim that eliminating "mass murders" in the US comprises a "compelling need." The second prong asks, "Is a complete ban on the private possession of such arms the least restrictive means of accomplishing the goal of eliminating mass murders? The third prong asks, "Does this regulation actually achieve the stated goal of eliminating mass murders?"

Arguably, the first prong could be met, as eliminating mass murders is certainly a compelling need. However, the second and third prongs are where this regulation would fail the test. Would banning all such arms be the "least restrictive" way of achieving the goal? Clearly not, because registered machine guns have never even been used in such a crime, and all of the mass murders committed with semi-automatic firearms that look like military weapons have been committed with weapons that were ostensibly legally purchased after a required background check, and the number of such weapons used in mass murders is an infinitesimal fraction of the total number of such weapons already in public hands. It would be a tough sell, ignoring the whole issue of such arms being essential to Congress' power to raise armies, to say that a few notable mass killings using such weapons justifies banning all of them is the "least restrictive" regulation on the fundamental right to keep and bear arms. And finally, would the regulation actually achieve the intended goal? Clearly not, because the goal is to eliminate "mass murder" and that can be committed (and has been) with a can of gasoline and a match. In fact the most deadly such mass murder was committed with exactly those tools, neither of which the regulation of arms would in any way prevent.

[pErvinalia]

I see that evil Marxist, Obama bin Laden, is going to attempt to sort out your shithouse gun laws to an extent with presidential authority. Are you and the teabillies going to finally overthrow the gubmint now?

[Seth]

I see that evil Marxist, Obama bin Laden, is going to attempt to sort out your shithouse gun laws to an extent with presidential authority. Are you and the teabillies going to finally overthrow the gubmint now?

Nah, we'll just wait a year and then the new President will revoke all of his rules by executive order. You see, what can be done by executive order can be undone by executive order, which is the flaw in Obama's plan.

He's just being a dog in the manger and he's trying to polish his "legacy" so he can ignore all the completely fucked-up things he's done as President that make him the worst president in the history of the United States. Nothing he can do is irreversible. All that is required is patience and determination.

[JimC]

I see that evil Marxist, Obama bin Laden, is going to attempt to sort out your shithouse gun laws to an extent with presidential authority. Are you and the teabillies going to finally overthrow the gubmint now?

Nah, we'll just wait a year and then the new President will revoke all of his rules by executive order. You see, what can be done by executive order can be undone by executive order, which is the flaw in Obama's plan.

He's just being a dog in the manger and he's trying to polish his "legacy" so he can ignore all the completely fucked-up things he's done as President that make him the worst president in the history of the United States. Nothing he can do is irreversible. All that is required is patience and determination.

I don't think Hilary will do that...

[laklak]

From what the pundits are saying he's going to try to Executive Order his way around the apocryphal "Gun Show Loophole", which is pretty thin fucking beer. I've no problem with expanding background checks to include private sales, if you can't afford the $25 to an FFL to run the check you probably can't afford the fucking ammo anyway. I don't see how that requirement would seriously infringe on the 2nd. He might try magazine limits but that won't fly, Congress will end-run that one pretty quickly even in it's current incarnation, and besides, who gives a shit? Any half assed rifleman can change out a 10 round in a second or so. Again, that's a non-starter for me.

Guns are as American as H. 'Rap' Brown, they ain't going anywhere.

[Tero]

Laklak! Long time no see!

We've already established gun shows are minimal leaks. Criminals get guns via straw purchases.

[pErvinalia]

I see that evil Marxist, Obama bin Laden, is going to attempt to sort out your shithouse gun laws to an extent with presidential authority. Are you and the teabillies going to finally overthrow the gubmint now?

Nah, we'll just wait a year and then the new President will revoke all of his rules by executive order.

Except the new prez is going to be a Democrat. You can't seriously think any of the nutbag extremists who are currently leading the GOP race are going to be voted in as president, can you?

[piscator]

He'll be a Republican if Obama keeps clumping down this path...

[Seth]

Laklak! Long time no see!

We've already established gun shows are minimal leaks. Criminals get guns via straw purchases.

Theft, mostly. And the thing about straw purchases is that to get caught before the firearm makes it to the criminal, you have to be incredibly stupid at the gun dealer and let him know you're buying it for someone else.

The latest terrorists had their straw buyer buy the rifles YEARS before they used them, and no background check would have, or did, prevent them from getting the rifles.

So, exactly how are "expanded background checks" going to stop straw purchases, pray tell?

Clue: They aren't, which is why such an "administrative" expansion sans Congressional permission is flatly unconstitutional because neither Obama nor the BATFE can make law, only Congress can do that.

As for Obama's purported plan to redefine what "in the business" of selling firearms means, that will not do a bit of good either because, as before, background checks only keep criminals from buying guns over the counter, which is NOT how criminals get their guns. Therefore, even if someone who only sells 50 guns a year as a hobby is required to get an FFL and do background checks, it will have exactly zero effect on keeping guns away from criminals, because if the "kitchen table unlicensed dealer" does background checks, criminals won't approach him, and if he does NOT do background checks because he knows the buyers are disqualified, he's going to do it off-paper anyway, just as those who trade in illegal guns do right now.

So, nothing so far proposed will have the slightest effect on keeping criminals from getting guns. Which makes such regulations facially unconstitutional because they infringe on the gun rights of both buyers and the sellers and the authority of Congress, but do not accomplish anything at all, much less the intended goal.

[Seth]

I see that evil Marxist, Obama bin Laden, is going to attempt to sort out your shithouse gun laws to an extent with presidential authority. Are you and the teabillies going to finally overthrow the gubmint now?

Nah, we'll just wait a year and then the new President will revoke all of his rules by executive order.

Except the new prez is going to be a Democrat. You can't seriously think any of the nutbag extremists who are currently leading the GOP race are going to be voted in as president, can you?

Compared to the nutbag extremist already in office and the two nutbag extremists currently in the running for the Dems, all of the Republican candidates look positively ordinary and inoffensive. Obama's out of there, Hillary is a pathological liar to a greater extent that Obama is and is an ancient cunt anyway, and Sanders is a self-professed Marxist/socialist who hasn't a chance in hell of winning. What Sanders CAN do, thank God, is to suck left-wing extremist votes away from Hillary, which leaves the GOP in the catbird seat, regardless of who gets the nomination.

[JimC]

It's not just about criminals getting guns, it's about their mental stability...