Gun Controll 2nd ammendment?

Question

Amendment II

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.

http://www.law.cornell.edu/constitution/constitution.billofrights.html

Ok so according to this TECHANICALLY the government has no jurisdiction to impose or pass any laws to controll guns so my question is how can the government impose the laws that are currently in effect i know it varies from state to state but HOW can the INFRINGE on our rights i am doing a debate for my english calss pro controll and anti gun controll. i am also intrested in the loopholes that allow them to enact these laws?
Thanks

Answer 1

It all hinges on the definition of militia. Many anti-gun groups don't think "militia" means citizens. However, the Supreme Court has indicated that "militia" are people of the U.S.. Many anti-gun people were upset when Attorney General Ashcroft said in 2001 that the "Militia" are the people of the U.S.. That went against what Clinton said.

In 2002 the government righfully went back to the 1939 thinking about 2nd Amendment. :"the Justice Department, at the direction of Attorney General John Ashcroft, informed the Supreme Court that the official government interpretation of the Second Amendment had changed. The government now believes the Second Amendment protects an individual right to keep and bear arms. This restores the government position to its original status prior to 1939..." http://www.enterstageright.com/archive/articles/0502/0502shift.htm
Gun-control radicals target Ashcroft http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=23617

2001 Emerson brief: "It states that the Second Amendment "broadly protects the rights of individuals, including persons who are not members of any militia to possess and bear their own firearms," excluding "possession by unfit persons" and firearm types "particularly suited to criminal misuse." Although the latter is fuzzy, the brief makes clear that handguns, rifles and shotguns are protected. ... Attached to the brief was a November 2001 memo from Ashcroft to all U.S. attorneys with the words: "The department has a solemn obligation both to enforce federal law and to respect the constitutional rights guaranteed to Americans." http://www.independent.org/newsroom/article.asp?id=420

Lawyer Who Wiped Out D.C. Ban Says It's About Liberties, Not Guns http://www.washingtonpost.com/wp-dyn/content/article/2007/03/17/AR2007031701055.html

You are going to need a gun when illegal aliens revolt.

In California, it is the wild west. Armed illegal aliens own the streets in many cities. They carry AK-47 machine guns. I have heard several times that police have left the scene to avoid being killed by illegal aliens. Illegal aliens know they can kill people and get away with it. They just run back to Mexico where they are never found. Los Angeles County "Most Wanted List" is filled with illegal aliens.

"We have got to eliminate the gringo, and what I mean by that is if the worst comes to the worst, we have got to KILL him!"
– Jose Angel Gutierrez, political science professor at the University of Texas at Arlington http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=13654

ONE LIST OF ILLEGAL ALIENS' CONFISCATED WEAPONS
This is just ONE list. There are others.
" U.S. authorities announced they had seized two homemade bombs, materials for making 33 more, military-style grenades, 26 grenade triggers, large quantities of AK-47 and AR-15 assault rifles, 1,280 rounds of ammunition, silencers, machine gun assembly kits, 300 primers, bulletproof vests, police scanners, sniper scopes, narcotics and cash."
http://www.tmcnet.com/usubmit/2006/02/10/1360221.htm

Leader Of [Mexican] Racist Aztlan Movement Calls For French-Style Riots[Muslim] In U.S.
He says "If it does, it will have grave consequences on the social, political and economic structures of the country and it could possibly topple a government already weakened by the Iraq War and corruption within its ranks." " http://www.desertinvasion.us/articles/art2005nov08.html

MEXICO: We are taking over California.
"We are practicing La Reconquista in California."
– Jose Angel Pescador Osuna, Mexican consul-general, at Southwestern University School of Law.

Answer 2

You've gotten some good answers -- especially from Coragryph. Put simply, the U.S. Supreme Court has noted that the Second Amendment is not an individual protection (and it hasn't been "incorporated" to the states), but rather restricts the (a) federal government from banning firearms for (b) "militias."

Now, a few new decisions (and some writing by Supreme Court justices) are questioning that assumption, and indicating that perhaps the 2nd Amendment is an individual right (and one that may be incorporated, although giving out guns doesn't seem to be "necessary for ordered liberty" to me, but that's for another post).

But let's assume that the 2nd Amendment does apply to individuals, and prohibits both states and the federal government from restricting firearms. Even if that's true, there'd be no court in the country that would hold that it would be an ABSOLUTE bar on any gun control regulations. For example, the First Amendment says "Congress shall make NO LAW, respecting an establishment of religion, or prohibiting the free exercise thereof, or restricting the freedom of speech or of the press..."

Well, there are a bunch of laws that "prohibit the free exercise" of religion -- like laws prohibiting native americans from using Peyote in religious ceremonies. There are laws that restrict the freedom of speech -- like laws against libel, or restrictions of what can be shown or described on TV (obscenity / indecency). But Courts realize that governments can restrict certain classes of religious expression (if the law is applied neutrally to all people) and can restrict certain types of speech (either through balancing tests, or declaring that some things "aren't speech" like obscenity).
In the same way, Congress or the states could regulate firearms, even with a strong 2nd Amendment. They could certainly put in place licensing or training requirements (I'm sure a court would balance the need for society not to have untrained lunatics running around with guns against that untrained lunatic's right to unconditionally purchase a gun), prohibit ownership by felons (as felons often do lose many of their civil rights), and perhaps even ban certain weapons as not "arms" that the "people" should keep and bear (using an originalist idea -- the framers thought people should have muskets, but it would never have crossed their mind for "people" to own cannons... thus, handguns and rifles may be OK, but assault weapons and military grade arms could be prohibited).

So, these arguments have not been raised often because most courts do not recognize an indivual firearm right in the 2nd Amendment, they will be made if any such right is "found" soon.

Answer 3

You are right, and they can't. However, they are able to because the government is made up of flawed and bad people. In order to enforce the Constitution, you've got to get judges to rule that the Constitution has been violated. In many 2nd ammendment cases, judges have ruled that the 2nd Ammendment only applies to state militias, which it obviously doesn't. There are those that say otherwise. There has just been so much legislating from the bench, that the government thinks the 2nd Ammendment doesn't count anymore. Go to flashbunny.org. It has some good points that you can throw in to your debate.
Oh and BTW The FEDERAL Constitution always pre-empts the States, and doesn't have to be "incorporated" into anything.

Answer 4

No, according to this the FEDERAL govt has no authority to impose gun control. And except for specific restrictions that apply on federal lands, or to interstate sales, they don't.

But unlike the rest of the Bill of Rights the 2nd Amendment (and the 7th) was never incorporated to limit the states. So, states can regulate guns as much as they want.

That's because most federal circuits (except the 5th Circuit) interpret the 2nd Amendment to provide a collective right to gun ownership ("a well regulated militia") which puts it in the area that states can control.

The 5th Circuit (and DC circuit) interpret the 2nd to grant an individual right, like 1st and 4th Amendment rights. So, under that interpretation, the states are more limited in what they can regulate. The Supreme Court has not resolved this split.

Answer 5

Also, if you look at the individual state constitutions, they are more direct about meaning:
From my own state, MI:
Article 18, section 7: Sec. 7. Every person has a right to bear arms for the defense of himself and the state.

Many other states say it similarly. And it is obviously not for "militia" but for every person, individually.

But as for imposing some restrictions, it has been allowed for government to make the ownership of automatic weapons illegal. Same with various other military weapons - grenades, rocket launchers, mortars, etc, etc.

This is based on the general principle that these aren't really needed to defend oneself. It's a fine line, but one that's been generally recognized by both sides of the debate as a non-infringement.

But when places make it nearly illegal to defend yourself - like DC and NY - then one must question if their rights to self-defense haven't been infringed.

Answer 6

The government has no power except that which we citizens give it. Therefore if American citizens refuse to allow the government to pass unconstitutional laws, then the states couldn't infringe. Additionally, if American citizens challenged the laws in class action lawsuits or class actions, more laws would be declared unconstitutional and we would have more freedom. American Complacency is the only reason these laws can be passed.

Answer 7

No right is absolute. The first amendment is only accepted where reasonable. You have no right to libel or slander people. Further, you have no right to practice a religion that violates other laws - deflowering minors, human sacrifice ... The same applies to all of the Rights. No right is absolute. Stating that convicted felons, illegal immigrants, and kindergartners have the right to carry guns is poppycock.

Answer 8

Taken literally, you can only own a gun if you are in the militia. The courts have screwed up the interpretation for years.

I don't care if someones wants to own a weapon, just pointing it out for argument.