dinopello wrote:That's up to the SCOTUS. Have the bans on civilians possessing chemical and biological arms ever been adjudicated in the court? I don't know.
Case law on gun control, goes back centuries:
There was a 1939 ruling that upheld gun control regarding the size of "shotguns."
Basically, gun control has swung back and forth and I'm not a lawyer nor expert on it but the state of things and rules as they are now has all been hashed out by the courts. If more conservative judges are appointed, then conceivably the rules drift further right, if you get more liberal judges, they will drift further left.
Really, the SCOTUS and courts have always been a legislative review branch. That's their function. The law is a set of words that can't cover every conceivable situation, and may conflict with other laws, and may conflict with other parts of the constitution, or may just be -- in the mind of the justices -- not addressing some pressing common good need in society.
I think the system works. If the executive and legislative branches are failing, then the judicial can step in and be the wise gray haired men to do the right thing about something. Or, if the Court is off the rails and wrecking things, then one or both of the other branches can assert themselves.
So that's what a court does, it rules and explains its reasoning in an "opinion." Is it "legislating from the bench?" Yes, in a way. But that's the nature of courts, and it's been that way for over a thousand years now going all the way back to English judges and common law.
The bottom line about it, the 2nd amendment says:
"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."
So what does that actually mean, in objective honest plain english? It's saying:
* The only reason for citizens to have a right to arms, is just that they need to know how to use a gun in case called upon by the GOVERNMENT for defense. That's it. It doesn't say so that folks have a constitutional right to hunt, or just enjoy it for sporting, or self defense, nothin'. The only reason the state's right is somewhat limited in regulation, is just so that the people can know how to shoot a gun in case they need to be drafted.
* It specifically says, "WELL REGULATED" militia. That's very specific, plain english. Well regulated means "well regulated," that means it has a lot of regulations on it.
So that's what the second amendment says. The farthest right conservatives may not like how courts interpret it, but the constitution also set up those courts as the interpreter of the constitution.
If the People would like a much more specific gun law amendment, to prevent broad judicial interpretation, then the People can get a movement going and elect reps to congress to pass an amendment and then state reps to approve the amendment.
That's how our system works, branches of government and checks and balances. Legislative, judicial, executive, and the people. It's a system designed for incremental change and designed to make sweeping, fast change difficult. It actually is, an inherently "small c" conservative governmental system.
(although the judicial branch actually does have "fast sweeping change" power more than the other two branches. But it usually works out for the best. On things like gay marriage, they'll finally decide after it's clear which way the wind is blowing. So what's better, really? Having 40 years of state law battles on marriage and a divided union, or just have the court rule on the darn thing once it's become clear in society where things are headed?
That's how it's always worked, when the Court is at its best. They're just a bit AHEAD of things and progressive, but only when the winds of change are blowing that way and you start to get a problem of half the states doing one thing and then the other half doing something else and then those laws are conflicting with the commerce clause and such, so then the SCOTUS has to step in between the states and make a ruling.)
