You have the right to bear arms, not “electrical” arms, court declares | Hacker News Reader

You have the right to bear arms, not “electrical” arms, court declares

arstechnica.com

37 pointsalexcasalboni60 comments

This judgment will almost certainly be overturned by higher courts. The "right to bear arms" has never been interpreted by the S.C. as the right to bear "lethal arms", nor the right to bear "military" arms. The S.C., in its recent Heller judgment, interprets "arms" as "weapons".

Heller contained this paragraph:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

The Massachusetts court found that electrical weapons are "unusual" and "dangerous per se". The US Supreme Court, which is the only court that may overturn this ruling, might disagree, but it's hardly a slam dunk.

Cops commonly use tasers to subdue suspects. Is that a common enough use of an electrical weapon?

Ultimately it doesn't matter what the SC thinks. It's still pretty much illegal to own a gun in eastern Massachusetts. Banners gonna ban.

Not sure what you mean that it doesn't matter what the SC thinks - if they rule that states cannot ban the use of stun guns, then the states have to comply. What workarounds are there?

Instead of an outright ban, a state can so heavily regulate ownership to ensure very people actually do.

They can pass regulations that make owning, manufacturing, or selling such a weapon a pain in the ass. There's a whole category of crimes that automatically turn into much more serious crimes when you append "...with a deadly weapon" to the original crime. The government can arrest people and charge them with a trivial crime that turns into a felony because the suspect was carrying a weapon.

Or they could just do what they already do with guns: require a permit to carry the thing and then simply refuse to issue permits. As I said, guns are effectively illegal in the Boston area, and Heller did fuck all to change that.

"Cops commonly use Y" does not contradict "Y is unusual for someone to own". For example, cops commonly use disposable handcuffs, but it would be unusual for a non-cop to own them.

She appealed her 2013 conviction, on Second Amendment and self-defense grounds, claiming she had a right to the weapon to protect herself from what she said was an abusive father of her children... She was caught with the device outside a grocery store after allowing the authorities, who were looking for a shoplifter, to search her purse.

That's a pretty sympathetic defendant. Somehow I doubt the Massachusetts court will get the last word on this one.

A sympathetic defendant doesn't really matter as a ruling would affect everyone, including some less sympathetic people. The quote of the opinion makes a good case that although by some measures electrocuting someone with 50k volts is less dangerous than poking a hole in them with a bullet, it may still be "rationally [banned] in the interest of public health, safety, or welfare".

I don't think she'll get very far if she's going to keep arguing she should be allowed to have something that's not a gun because of the Second Amendment.

The Supreme Court has ruled before that the Second Amendment isn't limited to guns. This case is nearly certain to be overturned.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014...

Indeed, it ruled quite recently, in Heller:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

The Massachusetts court, emphasizing "military use", seems to be just thumbing its nose at SC.

I sure hope so.

Interesting. Thanks for the link!

I think this is the weakest part of his argument:

> Thus, "dangerous and unusual" weapons are historically excluded from the scope of the right [to bear arms], but this exception, by the Court's own words, is indeed limited to weapons that are not only "unusual" but also "dangerous." Moreover, because all weapons are “dangerous” to some degree, the reference to “dangerous … weapons” must mean weapons that are more dangerous than the norm — logically meaning weapons that are unusually dangerous.

I don't think that "dangerous and unusual" is the same as "unusually dangerous".

And that is why you should never talk to the police. Great video on that here: https://www.youtube.com/watch?v=6wXkI4t7nuc

So potentially non-lethal means of self defence are bad, but a weapon that can slaughter a classroom are A-okay. As a Canadian, American logic is kinda terrifying.

As an American, I kinda agree with you.

Another way of saying "potentially non-lethal" is "lethal", and another way of saying "can slaughter a classroom" is "can be used to not slaughter a classroom".

These "non-lethal" weapons are more likely to get you hurt than either disengaging entirely or engaging with a deadly weapon--to wit, one of the reasons they have officers and MPs go through CS gas/mace is to show them that they remain functional and as such they should never assume that somebody they've used a non-lethal weapon on is incapacitated.

QED

The court that made this ruling would also ban most guns as well.

It will likely be overturned on appeal, as they might have well interpreted arms as the things attached to your shoulders.

It's not unreasonable to imagine non-lethal weapons being used with far less discretion than guns. Kids running around tasing people for fun, for example.

With due respect, if your kids think that it's OK to shoot a gun to someone because it is "non lethal" (btw. sublethal would be more accurate), then you are raising a generation of drooling idiots.

Which is, by the way, not what direct observation of evidence suggest. After all, baseball bats have been and continue to be much more easily available than tasers, and still you do not see hordes of drooling-idiot teenagers hitting people for fun on the streets.

What you see is a small minority of very troubled kids attacking people for more or less rational (or at least, purposeful) reasons with whatever weapons happen to be available to them, more or less regardless of lethality of said weapon. And you are not going to solve that problem by making sub-lethal weapons unavailable to a completely different demography. What you do is to identify those kids and rehabilitate them before they become hardened criminals.

I don't have any interest in owning guns. Simply because I didn't grow up around them and I would prefer to not have to have the responsibility or risk involved with owning one. However, I do have a bat in my home near my bed just in case. A taser sounds like an appealing option which is much less lethal than a handgun, but certainly gives me a better defense. I honestly don't understand the reasoning on this case.

> but certainly gives me a better defense

Assuming you don't miss.

A firearm is a much safer tool for personal self-defense, especially home-defense.

Knives are highly dangerous to their (usually untrained) users, bats have the same issue: you're getting too close to the threat. Also, these mechanisms of self-defense are widely seen as heinous. If you stab someone, bash their head, even in self-defense: that's a heinous and inhumane way to defend yourself.

Tasers have the limitation of a slow-moving (harder-to-aim) projectile that may-or-may not penetrate clothing (it certainly won't penetrate heavier leather, etc.).

Assuming you don't miss (in which case you're not going to be able to fire again with the civilian-oriented tasers), you are praying that it's enough to actually stop the threat.

What if there is more than one assailant?

Not saying I wouldn't still keep the bat. But honestly, I'm sort of a pacifist as far as guns are concerned. I don't see them being necessary for most people in a modern society. (Yeah, I understand the whole "we need them to defend us from a evil government or criminals" argument. I'm not looking to get into a debate about it.)

Also, Using a bat is more heinous than a gun? What society are you from? Someone can be subdued but not killed with a bat, but a gun puts them down for good.

> Also, Using a bat is more heinous than a gun? What society are you from? Someone can be subdued but not killed with a bat, but a gun puts them down for good.

I would rather stop the threat cleanly with a firearm. I'd also rather subject myself, my family to far less physical risk by not thinking I can macho it out with a baseball bat. Brain damage, broken limbs, missing teeth caused by a baseball bat are widely viewed as inhumane, regardless of the situation - self defense included.

> I don't see them being necessary for most people in a modern society.

You should share that view with the next police officer you see carrying a firearm. In the US, any will do.

> What society are you from?

I'm from the United States of America. US courts, even in the most self-defense averse areas tend to agree with this view.

> She was caught with the device outside a grocery store after allowing the authorities, who were looking for a shoplifter, to search her purse.

"Do you have a warrant? I'd prefer to wait until you get a warrant"

She didn't need to consent. Once she did it's probably all fair game.

I'm sure it would have gone well if she tried to not consent...

This is why good citizens do not consent. Eventually the novelty will wear off.

This actually might make sense is a warped sort of way, if you interpret the "being necessary to the security of a free state" as literal and integral to the 2nd amendment... it is hard to argue that stun guns would be useful in defending against impending tyranny.

It is a stupid law though, I can't believe that people choose to live in a state where you can't protect yourself a weapon designed to inflict the least amount of permanent damage necessary

The Supreme Court of the United States and most legal scholars (post-Heller) agree that the justification for the Second Amendment is not a prescribed limitation.

"being necessary to the security of a free State" is a reason the Second Amendment exists, not the only reason or one that limitations may be paved around.

The comma makes all the difference. The original text is only marginally meaningful, post-Heller, as the interpretation that individuals may own and bear arms (specifically semi-automatic handguns - presented as those in "common use") is now law - carrying the same weight as if it were written two hundred years ago.

I was so happy the day that decision came through: small-minded individuals making arguments based on flawed interpretations of semantics were immediately put to rest.

------

re: stun guns - I agree that this is ridiculous, but a firearm is a much better tool for self-defense (not that you shouldn't be allowed to make that bad choice).

> I was so happy the day that decision came through

District of Columbia v. Heller and the related McDonald v. City of Chicago were both decided 5-4 in favor of gun freedom. One more "proud Latina" and things could have turned out very differently.

It's amazing how preserving our fundamental rights often comes down to the personal prejudices of Supreme Court justices.

Hopefully Ginsburg stands down in the next presidency. One can hope.

What's really fun is going through the process of getting a gun license in Massachusetts.

Fill out a state application and mail it to the government. They put you in the system.

Then fill out a local form and submit it, along with two letters of reference from upstanding citizens and $100, to your local police chief.

Then, after several weeks, they call you to go in and get fingerprinted and photographed. For the rest of your life, your prints will be in a national database.

Then, wait anywhere from 6 weeks to 6 months to find out whether the chief wants to grant you an LTC. If he decides you're too iffy, or your background doesn't check out, or he got up on the wrong side of the bed, you're out of luck (and out $100).

If you're lucky, you'll get your LTC, just in time to miss this year's hunting season.

Or you could move to a state like Arizona, get up on Saturday morning and drive to the gun show, and come home with whatever arms and ammo you desire! And carry them openly or concealed. No fuss, no muss.

I suspect a taser or such device would be about as regulated as guns, which is to say not at all (in AZ), but I have no experience.

Does anyone know of anyone keeping a database of state supreme court / federal district rulings and what the supreme court decided on them (held, overturn, refused to hear)?

// I'm in the camp that this will be overturned

I don't think the founding fathers envisioned ak47s or ar15s either.

The founding fathers, who in their time saw and used the potential for sharpshooters with Rifles to engage many-times larger forces using inaccurate muskets, never envisioned that longer-range, more accurate, faster-rate of fire weapons would exist?

Not only that, most of the framers of the Constitution likely had high quality classical liberal arts education, not the watered down public school training that exists in USA today. To think that they never thought about how technology might advance is almost laughable.

It is silly to assume that just because the technology didn't exist yet, that it would be impossible for them to conceive of it.

"Supposing, for instance, that the fundamental relations of pitched sounds in the science of harmony and of musical composition were susceptible of such expression and adaptations, the engine might compose elaborate and scientific pieces of music of any degree of complexity or extent." - Ada Lovelace, 1842

Nor the internet and television when they wrote the first amendment.

I find it odd that that judgement gave such importance to the technology available at the time of writing the amendment instead of the spirit of it.

Yet, thank whatever you hold dear, the common interpretation of the second amendment has held that the technology involved is that required for a militia of reasonable effectiveness, and as such it's kept pace with modern developments.

The court specifically points out that such tazers are not militarily useful, and as such you don't get that same guarantee.

The SCOTUS specifically addresses 'military' weapons in Heller.

This is going down in flames.

The founding fathers envisioned a militia which could counter and if necessary overthrow a standing army. They unquestionably envisioned a militia having all weapons that the army had.

And hopefully some the army didn't.

This, in so many ways. If you want to espouse what the Founding Fathers envisioned, then put yourself in the shoes of someone who just led a fledgling populace to a bloody victory over an oppressive monarchy half-way across the world.

The Battles of Lexington and Concord were preceded by a secret British order to confiscate and destroy the military supplies (rifles, ammo, cannons) of the militia that had been formed following tensions between Patriots and the British after the Boston Tea Party. [0]

So the very first act of military aggression - and the "shot heard round the world" - was at least in part the last resort of the militia after a failed attempt to confiscate guns.

So when someone considers what the Founding Fathers actually envisioned, it is absolutely that the people of the United States always be able to stand up to a standing army. We can argue the current practicality of citizens owning nukes, but that doesn't remove the spirit of the amendment.

[0] http://en.m.wikipedia.org/wiki/Battles_of_Lexington_and_Conc...

An AR-15 is just a semiautomatic rifle, so the founding fathers basically had AR-15's. And I would find it very hard to believe that, given the notion of guns, a reasonably intelligent person wouldn't expand the concept to a gun that fires repeatedly.

"An AR-15 is just a semiautomatic rifle, so the founding fathers basically had AR-15's"

Wait, what? Not really an expert on 18th century weaponry, but even I know from grade school that the best weapons of that era were muzzle loaded which significantly impacts the number of rounds you can fire per unit of time.

So I googled...

An AR-15 can fire 45 rounds per minute. A Pennsylvania Long Rifle from that era could approximately fire 1 round per minute.

Well, our population is almost 100x what it was back then too, so at scale, we're able to kill less people! :P

How about weapons that DID exist?

Private citizens owned the vast majority of the US's naval power. Namely: a substantial amount of cannonry, mortars, etc. These primitive weapons have (and had) the capability of razing cities.

Were the rockets' red glare and bombs bursting in air imaginary? No, but the home-teams' were privately owned.

"Were the rockets' red glare and bombs bursting in air imaginary? No, but the home-teams' were privately owned."

The star-spangled banner was written in 1814 during the War of 1812, which is definitely not the 18th century. Fort McHenry was also commanded by the US Army and not a state's militia, so it's not clear who owned the cannons.

Exact numbers are escaping me, and I'll have to find a source, but, there were around ~500 privateer ships involved in the War of 1812, and ~20-30 US Navy vessels.

Suffice it to say: there were substantially more privately-owned armaments, crews, etc. than government.

http://en.wikipedia.org/wiki/Ferguson_rifle

Breech-loading, 6-10 rounds per minute, used by the British in the Revolutionary War.

Interesting article. Looks like there were ~100 used in the Revolutionary War, all owed by the British. TIL.

An AR-15 can fire 45 rounds per minute.

I believe the "45 rounds per minute" figure is an estimate of sustained rate of fire, including reloading and potentially waiting for the barrel to cool. As a semi-automatic, it will fire as fast as you can pull the trigger. Pulling a trigger more than once per second is easily achievable. Doing so with accuracy is the difficult part.

But while checking on this number, I came across something that surprised me: there is a legally-available mail-order accessory that will allow an AR-15 to fire several hundred rounds per minute with rather impressive accuracy:

http://www.csmonitor.com/USA/Politics/2013/0203/Bump-fire-de...

https://www.youtube.com/watch?v=JOUNvIwxSWg

I never understood why people get so hung up on cyclic rate when it comes to firearms.

There will never be a cyclic rate limitation imposed on firearms by federal legislature. It's a meaningless, fear-mongering number that doesn't actually measure lethality.

Semi-automatic handguns are here to stay. Period, end of story.

For the scenarios most people are concerned about, semi-automatic handguns are of the same relative lethality as an AR-15 (in rifle configuration). Perhaps even more so, as they're easily concealed.

If we want to get hung up on cyclic rate: the (unobtainable) Glock 18 (fully-automatic handgun) has a cyclic rate of 1300 rounds per minute. Ooh!!! Scary! The Glock 17 (semi-automatic variant, a mainstay in many police departments), which is mechanically almost the exact same is completely capable of the same ROF (if you could actually move your fingers that fast).

It's legal, here to stay. Find a different stat to try and scare uninformed people with.

Your account is new to this site, and you seem to have a useful perspective and information that most people here do not. But your tone is unwelcome, and suggesting that my goal is to "scare uniformed people" is offensive. Stick around, but please be more considerate.

The numbers are just numbers, but it's better that people start with accurate numbers rather than false ones. The "45 per minute" figure comes from a misleading Time Magazine graphic, and should be corrected regardless of the direction of the correction: http://www.everydaynodaysoff.com/2013/01/21/time-magazine-at...

Rate of fire and lethality have limited correlation, but perhaps more interesting for this discussion, legality and lethality have even less. I posted the article on the Slide Fire stock because I was not aware of it, because it's legal, and because it actually does turn an AR-15 into what is functionally a fully automatic rifle. But add a simple spring into it and suddenly it's illegal: http://www.slidefire.com/downloads/BATFE.pdf

The lethality is the same (and yes, arguably no different than an unmodified AR-15, although you should watch the videos if you haven't) but the functionally fully-automatic version with the spring is illegal, and the one without is currently legal (except for California). I find this an interesting point of discussion.

They didn't envision telegraphs, telephones, or the internet, but I doubt you think that the first amendment doesn't apply them.

Your comment adds no substance to the thread.

The highest court in the land has already ruled that individuals have the right to possess firearms in common use.

The vision or intent of the founding fathers, is, quite frankly, irrelevant at this juncture. Also: many accounts (specifically, the Federalist papers) would disagree with the "oh! but they never imagined it!" argument.

But, for the sake of argument, you do realize almost all of the then-standing naval fleet and their weaponry (specifically: cannons) were privately owned? At that point in time, it was completely acceptable (as a private citizen) to own weaponry that could completely level structures.

The founding fathers were some incredibly smart gentlemen and had already invented and innovated quite a few things so as they had already witnessed and created so much already you can bet your bottom dollar they thought and knew that things such as firearms, media, etc. would undoubtedly become very complex and powerful [1].

[1] http://www.forbes.com/sites/alexknapp/2011/07/03/the-five-be...

http://en.wikipedia.org/wiki/Girandoni_Air_Rifle

Created in 1779, first repeating rifle, 20-30 shot magazine, high rate of fire.

Basically, a machine gun. Certainly a harbinger of things to come. Invented before the Constitution was written.

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