It there any text in the Constitution that would permit Congress to write any law that restricts the right of people to own and use firearms for recreation or personal defense?
Not American and not a "gun banner" but equally not a fan of the "armed society is a safe society" concept or the American obsession with putting literal interpretations of the US Construction above practical realities; As I understand it, the US Constitution prohibits limitations on "keeping and baring" arms, which in practice would apply to ownership but not necessarily use. You're free to buy and carry any firearms you want, but you can't fire them anywhere or at anything (or anyone) you want. Of course, in reality, there have long been laws that break (or are generally accepted as exceptions to) those principles, such are laws preventing felons from owning guns or preventing people carrying them in certain places (courts, government buildings etc.). A simplistic Constitutional angle doesn't really work.
Thanks for replying. I was looking for something in the constitution that gave congress power to prohibit the use and ownership of firearms. I believe the felon laws you described are not federal laws but rather state laws.
I don't think you'd find anything specific but such laws could be (and apparently are for the ones that already exist) accepted within the scope of the general legislative powers the constitution grants to congress, mostly within a broad interpretation of the general welfare clause. I suspect this is one of those things in politics where lots of people want things to be easy when they're doing what they want but difficult when others are doing things they don't. Both I think. Regardless, I'm sure there are federal laws with impose specific limitations on ownership, carrying and certainly using firearms. I'm no kind of legal expert, especially on US law. This is just my reading of what I've seen in relation to similar discussions and debates on the topic.
Ah, ye olde 'general welfare' clause, which ought to be more accurately called the 'taxing clause': "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States" That's about taxing, and what the taxes may be used for. Nothing about limiting the people's use and ownership of arms.
It seems to be a matter of some debate. If you're going for the very narrow interpretation though (which is a perfectly valid argument), there'd be loads of federal legislation you'd have to object to beyond anything specifically about guns. As I said, the practical realities of how the US government actually operates has long (arguable always) stretched beyond any uncompromising literal interpretation of the constitution. As a nation, you have the option to establish laws that actually work best within those realities or you can desperately try to force that reality in to the image created by the constitution. Neither option is perfect but I'm not convinced the latter is even viable.
Funny that you should mention taxes, because 1934 National Firearms Act was written as part of the Internal Revenue Code. The Supreme Court has found no issue with it. Why are you discussing the same thing on so many threads? If the Congress wants to pass gun regulation, they will find a way to do it according to the Constitution. They are lawyers and politicians after all. The argument has been that it would be Constitutional using commerce and taxing powers.
Can you guess at what the acceptable level of gun violence is to those on the gun control advocates side? Not calling you, just seeing what you think their end goal is.
Yep, much legislation, not just gun legislation, is illegal, in that it does not conform to the restrictions of the constitution.
the supreme court has been more and more critical of the commerce clause expansions of the FDR regime. 5 justices held that Obama care could not be justified under the commerce clause. The 1934 NFA is in serious danger with Bruen and the ATF's idiocy concerning the pistol brace debacle
And SCOTUS would simply shoot it down. We're a long way from a hand-picked Court supporting gun control. Miller affirmed that firearms useful to the militia are protected. That decision should have immediately revoked NFA 1934 as was noted in the 1942 Cases v US SCOTUS decision. In 1934, there had been no SCOTUS decisions where the federal government had successfully defended a federal law infringing the the right of the People to keep and bear arms. SCOTUS in Cruikshank had noted "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" and limited the applicability of the Second Amendment to the federal government. Regardless of the ability of the states to regulate firearms, SCOTUS had affirmed that the federal government had no Constitutional authority to do so. In McCulloch v Maryland (1819), Chief Justice Marshall insisted that "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land." In United States v Darby, Justice Stone wrote: "Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause." Since at the time of the passing of the NFA 1934 the right to keep and bear arms for lawful purposes had been affirmed by SCOTUS, any law which infringed that right using the Commerce Clause was unconstitutional, and not a power entrusted to the government, and thus not the law of the land.
Would anyone say there is an "acceptable" level of gun violence? All kinds of crime are going to happen regardless of what we do. The aim of most criminal legislation is about reducing the incidence and/or reducing the negative impacts. The disagreements generally boil down to what different people believe is the best way to achieve that.
The federal government has extremely limited jurisdiction over criminal legislation. Take a look at article one, section eight.
Fair enough, but I'm not convinced such a controversial and partisan issue as gun control is the best lead to make that argument. If you want to present the general constitutional literalism argument, I think it would be better approached from fundamental legal principles (note that "better" doesn't necessarily mean "easier"). If you're really trying to present an argument against any legal gun control, the constitutional line is never going to work in practice (even if you can make a valid technical argument for it).
I am approaching the subject based upon fundamental legal principles, namely that the constitution grants congress a small set of legislative powers. The power to enact gun control laws is not on the list.
Either there is some level of acceptable violence, like that of Japan or the UK, or there is no acceptable level and the gun control advocates will insist upon more and more restrictions. The gun control advocates need to come to terms with this and include it in all debates on gun control. Otherwise they're just lying to themselves. They've already told us multiple times that they want to "end gun violence", "end mass shootings", "end school shootings". To get there is going to take a much more drastic course than some "common sense" gun laws. Even the example countries they compare the US to should tell them that.
Residents of Washington, DC and Chicago can now own handguns, so I'd say that it does work in practice.
Thanks for shaking your personal take on it, but as I said, they did it before, and they might do it again. We have been along way from it for about 90 years, and yet the law stands. Ok. Good.
