From: fcrary@ocf.berkeley.edu (Frank Crary)
Newsgroups: talk.politics.misc,talk.politics.guns
Subject: Re: Brown on Guns (short)
Date: 10 Apr 1992 16:58:59 GMT
Organization: U. C. Berkeley Open Computing Facility
NNTP-Posting-Host: locusts.berkeley.edu


In article <22083@goofy.Apple.COM> casseres@apple.com (David Casseres) writes:
>Are you saying that the
>Court has ruled five times that government may NOT control guns?  If so, how
>come we still have all these gun control laws?

The Court has ruled that some gun control laws are legal, under fairly
limited circumstances. But at the same time, they have said, or
implied, that more sweeping gun control laws would be
unconstitutional. Specifically:

In Presser v. Illinois, the Court ruled that requiring permits for a parade of
armed men did not violate the Second Amendment. But they went on to say that,
"the States cannot... prohibit the people from keeping and bearing arms."

In US v. Miller, the court upheld the National Firearms Act of 1934's very
strict regulation of sawed-off shotguns, on the grounds that they had no
evidence that such weapons contributed to the militia. By implication, the
Second Amendment protects private ownership of militia-usefull weapons.

In Patsone v. Pennsylvania, the Court upheld a state ban on ownership of
hunting rifles, by persons legally barred from hunting. However, O. W. 
Homes' ruling specifically excepts other weapons: "The prohibition does
not extend to weapons such as pistols that may be supposed to be needed
occasionally for self-defense."

(The other rulings on the subject only relate to firearms tangentially, but
state or imply that the Second Amendment is an individual right to own
firearms.)


Basically, the current Supreme Court rulings say that, at the very least,
the Second Amendment protects the right of individual citizens to own
militia-usefull firearms (e.g. firearms of a sort used by military forces)
for self-defence, and the right of the people to carry such arms in a 
way that does not disturb the peace of the community. This is the very 
minimum the Court's rulings can be taken to mean. If a similarly narrow
ruling of First Amendment case law were taken, the ACLU would explode. So,
it's safe to say that the Second Amendment protects these _at_least_, and
probably a great deal more.

As to why there (unconstitutional) gun control laws on the books, that can
only be ascribed to the apathy of the Supreme Court. US v. Miller, in 1939,
was the last case on the subject the Court heard. They have refused to hear
more recient cases. As to their reasons, I'm inclined to agree with Sanford
Levinson, an authority on Consitituional law and a supported of gun controls,
who wrote, "I cannot help but suspect that the best explanation for the
absence of the Second Amendment from the legal consciousness of the elite
bar... is derived from a mixture of sheer opposition to the idea of private
ownership of guns and the perhaps subconscious fear that altogether plausable,
perhaps even "winning" interpertations of the Second Amendment would present
real hurdles to those of us supporting prohibitory regulation."

						Frank Crary
                                                UC Berkeley

Newsgroups: talk.politics.misc,ca.politics,ba.politics,alt.politics.homosexuality,soc.motss