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Comment by a_gnostic | Hacker News Reader

The supreme court, stacked or not, has no bearing over gun ownership, nor does congress. "Congress shall make no law […] the right to bear arms shall not be infringed." supercedes both of them.

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This isn't true under current US jurisprudence: if a law that infringes on a fundamental constitutional right can be shown to be narrowly tailored to, and the least restrictive means of achieving, a compelling state interest, then it passes strict scrutiny and is considered constitutional.

Isn't that for rights though? Surely these explicit limits on congressional authority are more fundamental?

>> no bearing over gun ownership

Except they have great sway over definitions. They dictate what "arms" actually means. They dictate whether that word includes entire classes of weapons. The court currently protects only guns, but a small reinterpretation of "arms" could easily expand it to include bladed or explosive weapons, both of which are not currently protected. Does the 2nd cover flamethrowers? SCOTUS gets to make that decision.

The current scope of "arms" does include most conventional weapons but intersects with other boring regulatory considerations, especially at the State level. Anyone that can buy a gun can also fill out the paperwork to buy or manufacture much heavier weaponry. Most people don't because exercising the right is a headache. You can't drive a main battle tank on a public street or store a surface-to-air missile system in your backyard for basic infrastructure, zoning, and safety reasons that have nothing to do with the weapons per se. Small arms present much less of a practical safety or nuisance risk regardless of type, the same as any firearm.

The paperwork required is the trivial part. I have friends that, essentially for a laugh, filed for and received every Federal approval required to acquire basically the entire range of conventional weaponry. It had a similar level of scrutiny as applying for Global Entry at the airport. If you exercised this, you still need to comply with all the industrial regulations that apply to non-weapons with similar properties, which is expensive and inconvenient.

>> The current scope of "arms" does include most conventional weapons but intersects with other boring regulatory considerations

If those other conventional weapons were covered as "arms" under the 2nd, then those other boring regulations don't matter. The fact that those regs even exist is because so many weapons are specifically not covered as arms. I can own an AR-15. I cannot own a switchblade. I can own a 9mm semiautomatic, but I cannot own a small pen gun. I can own a short shotgun (coachgun) but I cannot own a crossbow in New York. Walk into a Nevada store with a handgun on your hip or an AR over your shoulder and nobody will bat an eye. But carry a sword and you will be arrested. It was only a couple years ago that laws banning "chain sticks" were struck down. SCOTUS has consistently narrowed the 2nd to only protect guns. Most ever other weapon is open for whatever reg the government wants to enact.

Amusingly the well regulated militia subordinate clause makes it very clear that the 2nd amendment is explicitly intended to protect “weapons of war.”

Sadly, since the Dick act, Congress has defined “well-regulated” as “yeah, whatever.” Nevertheless, since that was Congressional intent it satisfies the well-regulated requirement.

Your friends were able to purchase new machine guns? Not old ones that were grandfathered in, or modded to become semi-auto?

...Not in practice? The US has had laws in the books regulating gun ownership for almost a century.

https://time.com/5169210/us-gun-control-laws-history-timelin...

Why did you start with the first phrase of the first amendment, redact the rest of that amendment and the beginning of the second, and then misquote the remainder?

"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."

Grammarians have been puzzling over this text for many years.

Grammarians have been puzzling over this text for many years.

It would help if someone could find another phrase in the Bill of Rights that refers to, or even alludes to, the primacy of the rights of the state (whether "Congress" or a collective state-sanctioned "militia") over those of the citizenry.

There don't seem to be any such phrases, which lends a lot of credence to those who argue that the preface to the Second Amendment is just that -- prefatory, with no functional or prescriptive aspect whatsoever. The Bill of Rights is simply the wrong place to look for rules that grant, rather than restrict, governmental authority.

I have a pet theory which tends to annoy both major sides (not necessarily a sign of quality, but an interesting property) and it rests on three facts:

1. In the beginning everything in the Federal Constitution--and all the amendments--were understood to be only a restriction on the Federal government.

2. Many restrictions on the federal government were created out of states' concerns about it "going bad" and trying to ensure their own autonomy was protected.

3. The Second Amendment was drafted during the Articles of Confederation, at time when every state was required to support their own state-militia with arms/materiel, including guns-on-wheels that could be pulled by a horse, and the legislature had to appoint the upper-ranks.

So in combination, I argue the Second Amendment was wrongly "incorporated", abusing its original legislative intent of preserving a degree of state military autonomy. So on one hand, that means individual states can impose much stronger restrictions if they want, and on the other hand the federal government can't complain if your state lets you tow around a flak-cannon behind your truck.

Perfectly reasonable in my book. Honestly for me its less important the guns themselves, ive never owned a functional firearm in my life, its everything else that gets regulated along with it. I remember doing some surface research on building a drone with an IR camera and basically every solution had low FPS, digging into it, the federal government restricts the sale of IR camera chips capable of producing high resolution/high fps, its a 'weapons technology'. Encryption is considered a weapons technology too, your ability to freely communicate over the internet plays second fiddle to the interests of the national security state. The idea that the government can restrict something on the basis that it could be used to create a weapon is the problem, that is insane.

Why do we pretend that organizationally we exist in the same environment as when they penned the constitution? The people were the militia, and a free state implies the freedom of the people, not the government.

Except for the first two centuries after that was written the Supreme Court didn't interpret that section to mean anything goes. In particular, in 1939 it upheld a federal ban on sawed-off shotguns (United States v. Miller). It was not until 2008 when in District of Columbia v. Heller they said the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.

So it's not so clean cut as you'd think.

Under that wildly-expansive theory, people in prison for murder must be allowed to carry loaded guns around.

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