Why does an Assault Weapons ban not Require a Contitutional Amendment?

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  • kshaw

    Active Member
    Nov 21, 2012
    310
    Gaithersburg, MD
    I was reading an old legal opinion (1995) on the Fourteenth Amendment by the DOJ. The opinion was made in response to an attempt by Congress to stop birthright citizenship for aliens through a statute. The legal opinion opined that this proposed statute was unconstitutional and that the change could only be made by an amendment to the Constitution. Using the same logic for the Second Amendment, how can Congress create a ban on "Assault Weapons" or similar restrictions without an amendment to the Constitution?
     

    KJackson

    Ultimate Member
    MDS Supporter
    Apr 3, 2017
    8,613
    Carroll County
    IANAL, but they will probably say that they are not getting rid of the 2A entirely. They will argue that since specifics of which arms are not spelled out in the 2A, as long as even one type of firearm is allowed for public ownership/use, the 2A is being followed.
     

    ironpony

    Member
    MDS Supporter
    Jun 8, 2013
    7,191
    Davidsonville
    It does seem that a law may be passed and any given item may be destroyed/removed from existence long before the SCOTUS gets a chance to prove said law's Constitutionality. By that time the "animal" is extinct.
    Legal types please tell me I am wrong.


    Seems strange to remove firearms from Americans as the Chinese are increasing their military ... and without boundaries, they are making their own islands for this.
     

    jc1240

    Ultimate Member
    MDS Supporter
    Sep 18, 2013
    14,793
    Westminster, MD
    IANAL, but they will probably say that they are not getting rid of the 2A entirely. They will argue that since specifics of which arms are not spelled out in the 2A, as long as even one type of firearm is allowed for public ownership/use, the 2A is being followed.

    Arguing with them, not you...

    That's like saying you can use sign language, but all other forms are off-limits with regard to 1A.
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    The intellectually honest answer is that it does.

    The left these days is not intellectually honest. As are some of their judicial appointments, who would rather pretend the 2A does not exist. The left hates the police, but want to make sure that only the police have guns. smh
     

    TheOriginalMexicanBob

    Ultimate Member
    Jul 2, 2017
    32,176
    Sun City West, AZ
    Any proposal passed and enacted into law is considered legal until challenged in court. It ca't be challenged before enacted as there is no one yet suffering harm thus there is no standing to sue at that point. Once a court decides whether it's Constitutional it then becomes appealable and every step of that process takes time. Before it ultimately is decided for good (such as by SCOTUS if it gets that high)...a lot of damage can be done to our rights and to the industry itself.

    This is why such obviously anti-freedom proposals should and need to be fought to keep them from becoming law. Even if found to be unconstitutional by the court system later much damage is done...and the entire law may not be ruled to be unconstitutional...some restrictions can be left in place.
     

    Beancounter

    Active Member
    Jul 8, 2012
    145
    How did Clinton do it?


    He didn't. The law prohibited manufacturers from selling certain firearms with certain features (folding / collapsing stock), flash hider, bayonet lug, etc. The law prohibited manufacturers from selling new 30 round magazines to anyone except LE. The law restricted manufacturers, not people. Congress has the authority to regulate interstate commerce.

    I bought my first AR during this "ban". I bought surplus standard military issue magazines (30 rds) and a Colt AR 15 which was a heavy barrel, no flash hider, no collapsing stock). It shoots the same bullet as those with these "evil death enhancing features". Manufacturers made new standard issue (30 rds) magazines marked LE ONLY and traded them to the police for the old (not new manufacture) magazines which were legal to sell.

    We have a government that does not follow its own laws, headed by people who will not enforce laws they are sworn to enforce.

    Want to know how that happens? WE THE PEOPLE let it happen. We are letting it happen again. No people can claim they have a right to freedom when they pass laws to limit the freedom of others. This applies to both sides, equally and more than to firearms.

    Supposedly Ben said "You have a republic, IF YOU CAN KEEP IT
     

    delaware_export

    Ultimate Member
    Apr 10, 2018
    3,143
    by the supreme courts logic in heller, any firearm "in common use" and useful to a militia is protected. and while no real count exists, the estimates i've heard are the there are over 12m ar pattern rifles. though that number is probably much higher. add ak pattern rifles, and various other mag fed rifles of other makes, on it's face, the law would seem to be in jeopardy.

    and as for all semi-auto. pistols, rifles, and shotguns, again, common use.

    and lets face it, if you are a2a, bolt actions and even muzzle loaders are military grade firearms, if you look at history, probably killed more people than "assault weapons". mausers, moisins, springfields, enfields, and all the similar pattern guns they spawned and descended from...

    yeah, a preaching to the choir rant. sorry.

    so, if the law passed, how long would it take for that case to get to court? would an activist judge ignore this part of heller? heller yes. how many years would it sit in lower courts? would scotus hear it?
     

    ChannelCat

    Ultimate Member
    MDS Supporter
    Using the same logic for the Second Amendment, how can Congress create a ban on "Assault Weapons" or similar restrictions without an amendment to the Constitution?

    It's easy. The libtards live and die by the old and discredited "living breathing constitution" bull$hit. Read: the constitution means whatever the fvck that we say it means to fit "evolving standards". This is why appointing constitutionalists to the courts is so important...
     

    ken792

    Ultimate Member
    Sep 2, 2011
    4,480
    Fairfax, VA
    Because those people believe in the "living document" lie. They don't want to deal with the process of making an amendment. They just want to twist or ignore what's already written to "fit with the times" and reach their predetermined result by claiming they're interpreting it in a modern context.
     

    teratos

    My hair is amazing
    MDS Supporter
    Patriot Picket
    Jan 22, 2009
    59,775
    Bel Air
    Even a Constitutional Amendment can't do it. Good luck repealing a right that existed before pen was put to paper.
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    I find it deeply amusing that people think haters like white supremacists and antifa are going to give up their guns just because the .gov says so. How about all the members of the Maryland Socialist Rifle Club , are they giving up their guns when we pass a law? lolololol.
     

    erwos

    The Hebrew Hammer
    MDS Supporter
    Mar 25, 2009
    13,866
    Rockville, MD
    I find it deeply amusing that people think haters like white supremacists and antifa are going to give up their guns just because the .gov says so. How about all the members of the Maryland Socialist Rifle Club , are they giving up their guns when we pass a law? lolololol.
    In another decade or two, advances in 3D printing and widespread at-home CNC technology will render it trivial for even the non-technical crowd to make their own "assault weapons" and normal-cap mags. The genie is out of the bottle, it's not going to go back in.

    I do think it would be best to get a SCOTUS ruling on AWBs and mags before the GOP loses control of the senate and executive, but I'm not even sure I think SCOTUS would strike down those things, TBH.
     

    lazarus

    Ultimate Member
    Jun 23, 2015
    13,678
    by the supreme courts logic in heller, any firearm "in common use" and useful to a militia is protected. and while no real count exists, the estimates i've heard are the there are over 12m ar pattern rifles. though that number is probably much higher. add ak pattern rifles, and various other mag fed rifles of other makes, on it's face, the law would seem to be in jeopardy.

    and as for all semi-auto. pistols, rifles, and shotguns, again, common use.

    and lets face it, if you are a2a, bolt actions and even muzzle loaders are military grade firearms, if you look at history, probably killed more people than "assault weapons". mausers, moisins, springfields, enfields, and all the similar pattern guns they spawned and descended from...

    yeah, a preaching to the choir rant. sorry.

    so, if the law passed, how long would it take for that case to get to court? would an activist judge ignore this part of heller? heller yes. how many years would it sit in lower courts? would scotus hear it?

    IIRC the estimate is about 20 million “assault weapons” as defined* by the 1994 AWB. Actual semiautomatic magazine fed guns it’s probably at least a third to two thirds higher. If you account for all semiautomatic long guns (adding in tube feed semiautomatic shotguns, fixed mag and clip feed semiautomatic rifles too) it’s probably closer to 40-50 million. Hell add in rimfire detachable mag rifles and that’s a few tens of millions more.

    Add in semiautomatic handguns and it’s more like 200+ million. Out of an estimated 300-500 million guns. I don’t recall the figures, but I think something like ~3 million “assault weapons” are being made every year right now out of close to 10 million guns being made.

    Those are just domestic production figures though. That doesn’t include imports, which are more limited, but I am guessing still accounts for a few million more guns and at least some of those are “assault weapons” even if it’s under nine hundred whatever exception (922r?)

    Yeah those death assault clipozine guns are probably more concentrated than average, but you are probably still talking 4-6 million owners of them. Maybe twice that many (I’d be it’s more like twice that many). That doesn’t make them rare or uncommon.

    *was just reading an article that mentioned an estimated 20 million AR and AK pattern rifles in the US. So actual as defined by the 1994 AWB it’s probably a lot more “assault weapons” owned by a lot more people. But based on the source they may have been conflating AR and AKs as all assault weapons. Though the author specifically said “AK and AK pattern” and that seems way too specific and also well written to be a “I don’t know nothing about guns” mistake. It pwas calling out how stupid an AWB would be.

    PS though the limitations would be what they are, if AWB become strict enough, see ammo and gun makers innovate by doing things like introducing more powerful rimfire cartridges. To the best of my knowledge you could have a rimless, rimfire round. So long as it is not a separate primer and the firing pin is impacting the edge of the rear of the case it would be considered rimfire. One of the stupids of an AWB or any type of “ban the thing” BS is that people and companies are smart. Ban a specific thing, which new thing that is different enough not to be the old thing for sale in months. Ban a feature, watch that get innovated around in weeks. And a lot of the feature tests that want to be banned do nothing to turn a gun in to a more effective mass shooting or crime gun. Oh no, I don’t have a flash suppressor, or a barrel shroud or a pistol grip or a Forward VFG. A non-threaded mini-14 is probably 98% as effective a killing machine as my AR is and is only less effective because I am prejudiced against rock-and-lock magazines.

    Mini-30 and mini-14 with fixed stock are specifically called out as legal under the proposed new federal AWB *eyeroll*
     

    Adolph Oliver Bush

    Ultimate Member
    Patriot Picket
    Dec 13, 2015
    1,940
    IANAL, but they will probably say that they are not getting rid of the 2A entirely. They will argue that since specifics of which arms are not spelled out in the 2A, as long as even one type of firearm is allowed for public ownership/use, the 2A is being followed.

    .....The right of the PEOPLE to keep and bear arms, SHALL NOT BE INFRINGED.
    (Emphasis mine).

    Not sure how the gun-grabbers get over that part. Massachussets Compromise? Bill of Rights? Did the gun-grabbers miss school when those topics were covered?

    Oh, and notice how the 2A doesnt establish the RTKBA? It merely references the preexisting right.
    Not one fvcking inch!
     

    PowPow

    Where's the beef?
    Nov 22, 2012
    4,712
    Howard County
    .....The right of the PEOPLE to keep and bear arms, SHALL NOT BE INFRINGED.
    (Emphasis mine).

    Not sure how the gun-grabbers get over that part. Massachussets Compromise? Bill of Rights? Did the gun-grabbers miss school when those topics were covered?

    Oh, and notice how the 2A doesnt establish the RTKBA? It merely references the preexisting right.
    Not one fvcking inch!

    As long as this understanding endures, we might be able to keep the republic!

    If the left is able to get us to relent on our natural rights, one of which is that to self defense, we are done as the nation that our founders envisioned. I expect the founders, if alive today, would be calling (on Twitter, FB, Instagram, and/or Reddit) for the citizenry to bear their arms in defense of the republic and to give not one inch to such demands. I am with that cause!
     

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