Thursday, March 4, 2010

What Are "Arms"?

The 2nd Amendment gives people the right to bear arms. In case you have been sleeping, there is a case before the U.S. Supreme Court with huge 2nd Amendment implications.

There is an ordinance in the city of Chicago that bans handguns. Someone sued the city. The case finally made it's way all the way to the top and was just argued before the Supremes a couple of days ago.

At this point though, the case isn't really about what the 2nd Amendment means or whether or not handguns are considered "arms". The issue is whether or not the Federal 2nd Amendment is applicable to or held against the states. Why?

A few years ago there was a handgun ban law passed in Washington D.C. Someone sued. That case eventually made it up to the Supreme Court and the ban was struck down as being in violation of the 2nd Amendment. Therefore, clearly the Supreme Court feels the Federal 2nd Amendment prohibits the banning of handguns.

Since Washington D.C. isn't a state, Federal law applies across the board. There is no state constitution, thus by default, the Federal 2nd Amendment applies to D.C. 

Now you can see what's at play. If the Federal 2nd Amendment applies to the State of Illinois, and the city of Chicago, the handgun ban goes bye-bye. It would be unconstitutional.

But what does the word "arms" mean? What is an arm for 2nd Amendment purposes? The generic definition of the word means weapons. At the time the original 2nd Amendment was written there wasn't as many types of firearms and other weapons that there is today. That's obvious.

I think it's safe to assume that the original use of the word "arms", covered about anything in existence. At some point, however, the meaning and/or interpretation of the word changed.

Certain types of firearms are banned lawfully in all states. I assume it's illegal to own a .50 caliber machine gun in all 50 states. I am sure owning hand grenades is illegal. Anti-tank mines too. Shoulder-launched, anti-aircraft missiles are a no no.

So basically all military-grade stuff is illegal to own. It would be hard to insure and register a tank in Chicago, and parking would be a nightmare.

A law school friend once told me he thought the 2nd Amendment was put into the bill of rights so that if the people ever wanted to overthrow the government, they could have the guns to do it. After all, isn't that basically how we became a nation? That's a very interesting thought.

But since the government has all of the good stuff, the chances of the Michigan Militia invading Washington D.C. and taking over are pretty slim. Perhaps that's why I can't own an F-16. Not that I could afford the fuel for it, but you get my point.

But where and how have state governments drawn the line to determine what "arms" means? How do you do it?

Gun lovers typically argue their need for guns is for protection and hunting. I am sure hunting was a major reason for the creation of the 2nd Amendment in the first place. Because in the late 1700's many people still had to kill animals to survive. Today, not so much.

So for most of today's hunters, killing is for sport. Yeah, some do eat what they kill, but don't need to in order to keep from starving. Hunting is called a sport, but so is bowling. And curling. I run for sport. Some sit in trees and shoot at deer. Different strokes for different folks.

I am not anti-hunting. Chicken fried elk steaks are very good. But I choose not to hunt. I was not raised around hunting. My dad was not an outdoors man. Hunting and fishing seem to be sports that are passed on from father to son, although I am sure not universally true.

Ok, so we need guns to hunt. What kind of guns? Well, in Illinois one cannot hunt with a rifle at anytime. Most Illinois deer hunters use bows. You can hunt with shot-guns in Illinois but most people can't get close enough to a deer to kill it with one, thus the bows. Shot-guns are mostly used to shoot at ducks, pheasants, and quails.

I doubt anyone hunts with handguns. Semi-automatic assault weapons also are not likely used for hunting.

Now for protection purposes, arguably anything under the sun could be used. Again, no military grade weaponry. I am willing to bet the weapon most purchased and kept for protection in America is the handgun. It's easy to understand why.

Handguns are small. They can be stored in very accessible locations. And you can teach your wife how to use it. If a burglar is heard breaking into your home at 2:00 am, having to go to the hallway closet to grab grandpa's old 12 gauge, find the shells, and load it would be a pain in the butt. However, grabbing a 9mm from the bedside table and loading a clip is easy as pie.

I believe in the right to protect one's home with a weapon. And handguns just make too much sense to outlaw them. But from a legal perspective, and in terms of the 2nd Amendment, I don't see a problem. Or maybe I do see a problem but fail to understand the analysis.

What is it that makes one weapon illegal and another one legal? If the original definition of "arms" included everything around at the time, what caused legislators to narrow the definition?

The military weapons are pretty obvious. Such weapons are not designed for storage in a home. I get that. And it makes sense. But some military weapons can be purchased legally. And here is where it gets confusing.

My cousin owns, and proudly displays in his bedroom, an M-4 assault rifle. It's basically a modernized M-16, with bi-pod legs that can be extended for use. It fires a 5.56 mm round or .223. It can engage targets easily at 300 meters (900 ft). When I write engage, I mean it's not hard to get a head shot at 300 meters with this weapon. And it could go through a 30 round magazine in a few seconds.

My cousin lives in Illinois. Thus, even if he wanted to, he cannot use that weapon to hunt within the state. And does anyone really hunt anywhere with an M-4? How many times do you need to shoot the deer to kill it? I was trained for one shot, one kill. But I digress.

So, what is the point of even owning such a weapon? Is he worried Iowa is going to invade Illinois? Or maybe it's those pesky Hoosiers?

While apparently owning this assault rifle is ok, a shotgun with a barrel shorter than 12 inches isn't ok. So much for making grandpa's old shot gun easier to get to in a hurry by shortening it a bit.

I am just really confused. Ban this one, but not that one. Hunt with this one, but not that one. Where does it end?

Time has shown that the word "arms" means a lot of things and is not consistent across the country. If the Supreme Court rules the Federal 2nd Amendment applies to the states, there could be some huge problems with current state gun laws.

It's a fact that the large majority of homicides caused by firearms are committed with handguns. Therefore, I understand why Chicago banned them. It must have seen like the thing to do.

Chicago has always had a homicide problem. Now, if most of those homicides are caused by handguns, then banning handguns should lower the homicide rate. Right? But banning handguns does not equal removing handguns from the street, thus the logic fails and so has the ordinance.

Chicago's homicide rate has decreased over the last several years, that's a fact. And there's no shortage of people wanting to claim credit. In 2001, there were 665 homicides in Chicago, but only 448 in 2004. That's a serious reduction. But has nothing to do with the handgun ban. There are pistols everywhere. Literally. I will tell a story to illustrate my point.

My investigator is a retired Chicago police homicide detective. One time he was investigating a case and had reason to believe a weapon had been thrown down either a sewer or storm drain (I can't remember). He had some type of giant magnet brought out and lowered under the street in an attempt to find the gun. Pretty clever.

When the magnet was brought up, there were 6 pistols stuck to it, but not the one he was looking for. Damn.

The Chicago handgun ban took effect in 1982. And 28 years later, it's still useless and has done nothing to reduce handguns on the street. So while Mayor Daley's interpretation of the word "arms" does not include handguns, common sense and, according to the Supreme Court, the Federal constitution say otherwise.


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7 comments:

  1. Wow.

    Where to begin?

    Certain types of firearms are banned lawfully in all states. I assume it's illegal to own a .50 caliber machine gun in all 50 states. I am sure owning hand grenades is illegal. Anti-tank mines too. Shoulder-launched, anti-aircraft missiles are a no no.

    So basically all military-grade stuff is illegal to own. It would be hard to insure and register a tank in Chicago, and parking would be a nightmare.


    Actually, there are many states where ownership of the weapons to which you refer is perfectly legal.

    Federal law treats it as a tax issue. In order to purchase a machine gun or "destructive device" (like a grenade launcher or tank) one has to file the proper forms (which includes a signature from your local Chief Law Enforcement Officer), undergo a background investigation, pay a $200 tax, and register as the owner with the National Firearms Act (NFA) registry.

    Some states ban some or all NFA weapons outright, but many (most IIRC) do not.

    It's common for your typical anti-gunner to be ignorant of the state of current firearms law, but it surprises me that a lawyer doesn't know that. Please see Title 26, US Code, Chapter 53: the National Firearms Act of 1934.

    BTW: I realize you were just trying to be pithy, but you wouldn't have to register or insure a tank as an automobile unless you were planning on operating it on public roads.

    Gun lovers typically argue their need for guns is for protection and hunting.

    Gun lovers? As opposed to gun haters? Is that what you are?

    Be that as it may...although those are two valid arguments typically made by gun rights advocates, it ignores the one actually enshrined in the US Constitution: as a check against governmental abuse of power...i.e. tyranny.

    There is a reason that the Second Amendment doesn't mention either hunting or self defense.

    I would argue that hunting (providing sustenance) and defending one's own life were SO widely recognized as natural rights, the framers probably thought it quite silly that either would need to be spelled out in the Constitution. OF COURSE you have the right to own a gun to gather food and to defend yourself; what rational person would think otherwise?...in the context of the 18th century of course. "Rational people" of today think all kinds of things that would probably strike the founders as outrageous.

    The Second Amendment enshrined a reason for firearms ownership unique in the world: in order to defend the populace against tyranny; whether from external enemies, or internal. Hence the militia connection.

    To be continued...

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  2. ...continued.

    Handguns are small. They can be stored in very accessible locations. And you can teach your wife how to use it.

    My wife would be very distressed to find out that she is incapable of learning how to use her rifles and shotguns. Not to mention the fact that her shooting prowess with either would tend to disprove your ridiculous implication.

    I know many women who would find that implication offensive and most of them could probably teach you a thing or two about firearms of any type.

    Sexist much?

    My cousin owns, and proudly displays in his bedroom, an M-4 assault rifle.

    I seriously doubt it.

    An M4 Assault rifle falls under the National Firearms Act just like any other machine gun and, if I'm not mistaken, Illinois is one of the few states that ban them outright.

    What he probably has is a semi-automatic rifle that looks similar to an M4 assault rifle.

    Although it probably looks very scary to a gun hater, it is functionally no different than any other semi-automatic rifle including semi-automatic hunting rifles like the Remington 7400 or Ruger 99/44. In fact, the 5.56x45mm cartridge is of significantly lower power than typical rifle hunting cartridges and is, therefore, LESS dangerous than a typical semi-automatic hunting rifle.

    So, I guess the question is: When you say it would be illegal to hunt with your cousin's rifle in Illinois, is that because hunting with any semi-automatic rifle illegal? Or is hunting with rifles with specific scary looking aesthetic features illegal?

    Hunting with rifles that look scary to gun haters has been going on for years and is becoming increasingly mainstream, despite the opposition of "traditionalists"...and gun haters. Most states have a limit of 5 rounds in a hunting rifle. Pop in a 5 round magazine and you're good to go.

    I also wouldn't tell These guys about your doubts re: hunting with handguns. You'll break their hearts.

    To be continued again...

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  3. ...continued

    While apparently owning this assault rifle is ok, a shotgun with a barrel shorter than 12 inches isn't ok. So much for making grandpa's old shot gun easier to get to in a hurry by shortening it a bit.


    Although there are two errors in this statement...we've already discussed the whole "assault rifle" thing...and the minimum barrel length for a shotgun is 18"...I do agree with your sentiment regarding the sawed off shotgun. That's a stupid rule that should be gotten rid of.

    As an alternative, how about passing a law saying that it's illegal to use a short barreled shotgun in a crime? That way someone with an old family heirloom side by side with a 17.9" barrel hanging on the wall won't have to go to prison over it; but the gun haters will be happy because they got to pass a useless law that won't have any impact whatsoever on crime, but technically makes something gun related illegal. That's all they do anyway, that should satisfy them.

    The Chicago handgun ban took effect in 1982. And 28 years later, it's still useless and has done nothing to reduce handguns on the street. So while Mayor Daley's interpretation of the word "arms" does not include handguns, common sense and, according to the Supreme Court, the Federal constitution say otherwise.

    Here we find ourselves in complete agreement.

    So, in summary...I believe you are sadly misinformed about the state of current firearms law (unfortunately, this is all too typical amongst those who weigh in on the subject on the side of gun control...how can one determine that the current laws are insufficient when they don't even know what those current laws are???) and about the relative usefulness of guns that have an appearance similar to modern military rifles; however, you are absolutely right about the ineffectiveness of Chicago's handgun ban...and shotgun barrel length restrictions.

    ***My comment was too long for one post, but I didn't have time to write anything shorter so I split it into pieces. Sorry about the dissertation.***

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  4. Thanks for your input. I am not a gun hater. I am constantly frustrated by how many handguns are in the Chicago streets, but I support the 2nd Amendment.

    You took most of that post way too literally. Relax.

    The purpose of what I wrote was to convey my thought that the word "arms" is not easy to define in constitutional terms.

    And I don't hold myself out as a gun law expert outside of Illinois. I thought I was safe assuming .50 caliber machine guns were illegal everywhere. Silly me.

    My use of the military stuff was only to further illustrate the point that the word "arms" means a lot of different things. And yes, of course, if I had a tank I would want to drive it on the road. There's no woods around here to go play with it, so down Racine I go. Relax. Please.

    I don't think I expressed any opinions about gun control either, other than to comment about saw-offed shot-guns and the Chicago handgun ban, which were two points we agree on.

    As far as my cousin's weapon, you may be right. I know it fired 5.56 mm rounds. I know it had a 30 round magazine. I know it fired in semi-automatic mode.

    The only reason I even knew what an M-4 was or even looked like was because the cops shot up one of my client's homes with one and I had to look it up. I saw the cartridge casings listed on an inventory sheet and didn't recognize the caliber, because as an Army man, I only know it as 5.56 not .223.

    And it would be illegal for him to hunt in Illinois simply because it's a rifle. The semi-automatic feature or the aesthetics don't matter. It's a rifle and therefore cannot be used to hunt. Period.

    I have read the argument that banning certain assault weapons isn't warranted because there are very few crimes committed with them. That's probably true. Pistols are easier to hide and use.

    That was another subtle point you must have missed. I was commenting that banning this one, but not that one gets a bit silly.

    But I think it's a State issue, not a Federal one. If Virginia wants to allow fully automatic weapons of some type, go ahead. It's your state.

    I have lived in two states that are on opposite ends of the spectrum; Texas and Illinois. I make no preference over either state's laws. And I could care less about rifle hunting.

    The laws, at least here in Chicago, seem to be ineffectual in terms of crime prevention. They keep people going in and out of prison, but do nothing to actually get them off the street.

    All I would like to do is get guns out of the hands of people that will readily use them illegally. That's it. That's all I want.

    Again, I am no gun hater. I choose not to own one. But you can keep yours. That's your right.

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  5. Fair enough.

    I only latched onto the "gun hater" title because you used the "gun lover" term so common amongst the ranks of the anti-gun lobby. It is a derogatory term that paints an unfair and inaccurate picture of gun rights activists.

    You seem to be a very reasonable man by your positions and demeanor, so I wasn't trying to raise your ire or challenge you, only to point out the inaccuracies in your statements.

    I have no problem with your goal of getting guns out of the hands of people that will readily use them illegally.

    My only problem is when, in attempting to achieve that goal, guns are taken out of the hands of people who WON'T readily use them illegally...which is the vast majority of the gun owning population.

    The bottom line is bad guys will always do bad things. Always have and always will. The best we can hope for is to be properly equipped and prepared to defend ourselves against them...and to support the police and legal system in removing any of them who survive the encounter from society for a long, long time.

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  6. Clearly that's exactly what I call a flawless article! Do you use this portal for your private aims only or you basically use it to get profit from it?

    ReplyDelete
  7. To my knowledge, I've not profited one cent from anything I've written here. Thanks for the comment.

    ReplyDelete

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