I think Xenamnes is referring to D.C. v. Heller. Here is a link: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf I can give you a different case. It is not a 2nd Amendment case but one which dealt with the 1st Amendment. It involved a law requiring registration and obtaining a permit before anyone could go soliciting door to door. It was challenged as an unconstitutional prior restraint upon the free exercise of a right by a religious organization. SCOTUS ruled the law an unconstitutional prior restraint. This is how SCOTUS explained its ruling: “If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U.S. 150, 164 (2002). (As an aside, this opinion was written by the chief dissenter in Heller, Justice Stevens. Additionally, 2 other Heller dissenters, Ginsburg and Breyer, also joined this opinion….) And so the question becomes, why can’t this case be quoted this way in a 2nd amendment challenge to a registration/permit/license prior restraint law: “If the exercise of the right to keep and bear arms cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the right to keep and bear arms, it is immune to such a restriction.” In my opinion, SCOTUS cannot credibly ignore this analysis when a challenge to registration/permitting is brought as an infringement of the RKBA. When a right is protected in the Bill of Rights, SCOTUS often works by analogy with how it deals with other rights protected in the Bill of Rights. And to my knowledge, SCOTUS universally condemns laws that are seen as a prior restraint on the free exercise of a constitutionally protected right. The only exception is a prior permit requirement for free speech and assembly in places that are controlled by the government—for reasons that make this one prior restraint exception inapplicable to the 2nd Amendment. In addition, the 5th Amendment presents a serious potential enforcement problem to registration/permits. The very people we want these laws to make more difficult to have guns—felons, persons subject to domestic violence restraining orders, etc.—can be immune from having to comply with a registration or permitting scheme. The act of registering/applying for a permit involves a confession of their crime of firearm possession. The 5th Amendment protects them from being compelled to make that confession. These are the constitutional issues I see with registration/permitting. I welcome anyone’s thoughts on it.
All decisions made by Supreme court Justices regarding 2nd Amendment rights ultimately depend on their individual subjective interpretations of what the founding fathers intentions in writing it. That and precedent. So on that note 'A well regulated Militia, being necessary to the security of a free State ...'. Let the subjectivity commence.
So RPGs should be legal. It's ownership does not put anyone at risk as long as it is not used in a reckless or dangerous manner.
Perhaps so. But such is another discussion for another day, as it has no relevance to the discussion of firearms specifically.
RPG's are legal in most states actually. Just requires a class 3 stamp tax. Good luck actually finding one though.
Heller vs DC ruling already declared the 2A recognizing the RKBA as an individual right and provided the detailed logic on why it arrived at that conclusion as well as why the prefatory phrase you cited doesn’t change that interpretation. Case closed, and the ruling is has become law until such time as the Court supersedes Heller vs DC.
Not withstanding the fact I limited my quotation to the first part of the Amendment you missed my point completely. To quote your last post 'the prefatory phrase you cited doesn’t change that interpretation'. Exactly, the key word being interpretation. The Heller decision enunciates the Supreme Court's interpretation of the framers intentions nothing more, nothing less. Yes, for all intents and purposes theirs is the only interpretation that matters but it is NOT the only interpretation possible - a point even and event the Justices who reached the decision would acknowledge. Nor if you read my original posts was I arguing that the Amendment should be re-interpreted. What I said was that (assuming one of the two mechanisms set out in your Constitution are followed) any term/s inserted into a 'New 2nd Amendment', by changing it render it open to reinterpretation. That's any terms. They could be the ones I used (responsible, competent) or any other the drafters decide upon (reasonable, Kardashian, jelly bean) - who knows I'm not the one drafting it!
Obviously beauty is in the eye of the beholder, and we can all come to our own conclusions about the proper interpretation of the intended effect of the militia clause on the RKBA. In my opinion, the “standard model” interpretation is the correct one (i.e. the militia clause is a preamble which does not limit the individual right of the people to keep and bear arms outside militia service). I believe that the “state’s right” interpretation (i.e. the militia preamble means it is a right of the state to have armed militia members) and the much newer “collective right” interpretation (i.e. the militia clause means the right is an individual RKBA, but it is limited to collective use as a militia member and only while in militia service) are both fictional outcome-based interpretations intended to achieve the goal of denying the individual citizen a RKBA beyond the ability of the government to completely deny it. And by completely I mean each of these interpretations allows the government to absolutely and completely deny any citizen any access to the RKBA, period. There are two more reasons I believe these interpretations are false: The “standard model” has solid justification found in the writings and debates of the founders, while the other two interpretations find no support from the writings of the founders; and (in my opinion equally if not more damning) Both the “state’s right” and “collective militia member right” interpretation read the Constitution in conflict with itself. @ moderpaladin: I’m sorry if this reply to a previous post is off the thread topic. If you would like, I can try to take it to a new thread. --- “The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders.” Justice Benjamin Cardozo, The Nature of the Judicial Process, Lecture II, 1921. “Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Justice Brandeis, explaining why he could not condone the government's use of information in a criminal case that was obtained from the use of a wiretap which in his opinion violated the Fourth Amendment, in Olmstead v. United States, 277 U.S. 438, 479 (192 (Dissenting opinion).
Yes I agree. For the sake of argument though, let me ask you this. Assume you have your registration scheme. How do you enforce it? For Example. Say I am not a felon and so I have no 5th Amendment protection against your registration law. I buy a gun and I choose to register it like a good little obedient subject should do. But then the felon comes to me and says he will buy my gun, and because he can't go himself to the gun store he will pay me more than I paid for it. I sell him my gun, and neither of us registers this transaction or change in ownership. You already have the 5th amendment problem that prevents you from forcing the felon to register, so the logical choice is to somehow go after me for not registering my transfer of the firearm to someone else. This is a practical question and not a legal one, so assume the registration law could be declared constitutional as applied to me because I don’t have the felon’s unique 5th Amendment self-incrimination claim. How do you enforce this against me for not somehow registering my transfer of the gun to someone else?
Obviously it would only work if every licensed firearm owner had every firearm they owned linked to their license. That way if firearm x is used to commit crime Y or otherwise found in the possession of someone who is unlicensed the owner has some explaining to do. In other words pretty much how it is done everywhere else in the world. And since the horse has well and truly bolted in the US in terms of collating a nationwide data base of who owns what (even if everyone dutifully complies) that means its still going to be a long, complex and expensive task to build up any kind of accurate data base. I'd say you'd be lucky to get anywhere near a comprehensive record set in anything under 20 years - as all the older, unregistered guns start to wash out of the system. Not saying it wouldn't be worth doing mind you, just that anyone who says it would be 'easy' is either lying or very naive. Point is registration is not a magic wand for curing high levels of gun fatalities/injuries in the US. But then again it's arguably better than doing nothing. Which seems to be the most common solution offered by those opposed to registration - the status quo is no magic wand either. Anyway it's your problem so its up to you to decide upon a solution. Or not as the case may be.
I think we can agree and disagree on some things. I don’t believe you will be able to build a comprehensive data base because older guns will not wash out of the system. A tiny fraction will “wash out” of circulation because they are used in crime and are confiscated. But the vast majority will remain in private hands. Indeed, I believe the registration system is likely to have an unintended consequence of creating an underground secondary market premium on these unregistered firearms. You could, if the system is deemed constitutional, begin a forward-looking database of all new guns sold through an FFL dealer. But there are serious practical hurdles I do not believe a registration system can easily address. Let me explain how firearm traces work now. Say a murder happens and a firearm is recovered that is involved. The end goal is identifying who is responsible for the crime. If you recover the gun from the suspect, then that is well and good. When the firearm is linked to a crime, but you don’t have proof of who wielded it, then law enforcement runs a trace. The local police agency contacts ATF and provides the details on the firearm. ATF contacts the manufacturer. All manufacturers are required to keep records of which gun was sent to which deal when it happens. The manufacturer then tells ATF what gun store the firearm was shipped to and when. All FFL dealers are required to keep every record of every transaction (and if they go out of business the records must be turned over to ATF). ATF next contacts the dealer, and the dealer tells ATF who bought the gun and when. ATF provides that information to the local police, and they go talk to the buyer. From there the trail depends on how honest and/or willing everyone is to talk about it. “Well I sold that gun to a guy named “smoke,” or “that gun should still be in my closet. Wait it’s missing. I haven’t looked at it since I bought it last year. It must have been stolen…” etc. A licensing scheme would be intended to shed light on the secondary market by having every firearm linked to a present owner, and if the gun is sold then the gun must be relicensed in the name of the new owner. The practical problem lies in enforcing it. To take my example from my earlier post, I sell my gun under the table to someone else without either of us registering this new transaction. The government will never know this happened unless they stumble across the gun in an investigation. When they do, the first question is who committed the murder with the gun. If they know because they catch the guy I sold the gun to with the gun, then fine—there is your murder suspect. If they don’t then they come to me to explain it. I have a right to remain silent. I don’t have to tell them anything. You can’t prosecute me simply because it was a gun registered to me any more than you can prosecute me as the driver of a hit and run accident simply because the car left at the crime scene belonged to me. Suspicious, yes. But proof beyond a reasonable doubt to sustain a conviction requires more. One thing you will be fighting from the start is since I was not involved in the murder, then I was not there, and I will very likely have an alibi proving I was somewhere else when it happened. But suppose instead I do talk, and I claim I have not checked on the gun in a long time, but lots of people have been in and out of my home visiting me or doing repair work, and the gun must have been stolen. If I give any excuse like this, then the hill to climb to disprove this statement is very steep. Unless someone comes forward to say I was there and I witnessed him sell the guy the gun under the table, then you are going to have to go back to the killer for help. So say the killer who bought my gun and then killed someone with it confesses and says he got the gun from me. Great, you can try to use him to prosecute me for selling him the gun and not disclosing it to the government. But you can’t introduce his statement against me (even if it sounds reliable because the statement involves his confession and is therefore also against his own self- interest). I have a 6th Amendment right to confront and cross-examine my accusers, so if you are going to use him, he has to testify against me (no that gun was not stolen, he sold it to me…) and be subject to my cross examination of him. You can’t make him testify because he has a right not to incriminate himself. And even if he has already been prosecuted and the double jeopardy clause means he cannot be prosecuted again and thus has no right to remain silent anymore, you run the very real risk often associated in co-defendant cases. He is angry at you because you have prosecuted and convicted him, and all to often a reluctant and angry co-defendant who has no desire to cooperate is called as an unwilling witness and suddenly feigns memory loss. No, to have confidence in convicting the seller the killer has to agree to co-operate by testifying. And here is the rub. He is facing far worse crimes, and he will want something in return for that co-operation. He will want his charges reduced and/or his sentence reduced in exchange for his cooperation. And that is something that is very difficult to get done. It’s not that big a deal that he will have a prior criminal record that impeaches his credibility when he hits the stand. That gets dealt with all the time. We have a saying that if you are going to prosecute the devil then you need to go to hell to find witnesses. They are not always the most upstanding citizens, but they become witnesses precisely because they were involved in what happened. But one thing is nearly universal. In prosecutions, you work your way up the chain of guilt not down it. And cutting a deal with the killer to get the guy who sold him the gun is like cutting a deal with the devil to get him to testify against a worshiper. As a prosecutor, you would have to sit down with the widow of the man who was murdered and tell her we would really like to nail your husband’s killer, but instead we are going to cut a deal with him for a reduction in his charges and/or give him a time cut because we really want to nail the guy who sold him the gun. I tell you that is a conversation you can never win with a victim’s family. I mention all of this because I believe the worst possible public policy is to make laws because we want to “do something” to make ourselves feel better or safer. The devil is always hiding in the details when we make new law, and you have to consider just how the law will reach the goal you intend it to fix. You have to think your way though the possible unintended consequences of your laws, and you have to seriously consider the probability of successful enforcement of the law. For me, I have yet to see a registration or licensing law that A. would be constitutional (in my opinion), B. Be capable of being successfully enforced, and C. reliably avoid serious unintended consequences. A lot of people want a registration/licensing law because they believe it will work. Laws are written in words. The words will say what they mean and mean what they say. If you want such a law, then give me the language. Tell me how the law will read so we can look at it and decide whether it could work or not (and be constitutional or not).
I would support any gun bill that requires sun-setting all existing gun control laws that cannot be proven with actual numbers reported to the FBI to have been effective.
If I may just note a couple of points I think might be relevant - Firstly, every state in Australia has a reasonably effective licensing system so I am familiar with how they work and can state that they are pretty efficient in identifying leakages from the legal market, albeit they have had decades to record and register every legally purchased firearm in the country. Secondly, to provide another example lets assume for a moment that instead of a murder charge (which on the grand scale of things is far less common than other offenses) a firearm (hand gun) you are recorded as owning has been sold illegally to a criminal. Now say that firearm is then used in a series of armed robberies for which which the carrier is eventually arrested and he in turn seeks a plea bargain in return for leniency. In short order he gives up anyone else involved in the robberies but since he was caught in possession of the handgun he also offers to give up the person who sold it to him. Now his testimony in and of itself may not be enough to lead a conviction but... Any investigating officers will check the offenders mobile phone records (finding your contact details - and the records of any texts, phone etc calls you exchanged with him). They will also recover any security camera footage that may be available and discover your vehicle turning up at the 'buy' location a few minutes before the date/time the co-operating felon has stated the buy occurred. And off course they will recover the footage of you departing the scene shortly afterwords. They also execute a warrant for you bank records which show 3 grand in cash being deposited into your account the day after the alleged buy. My point is that yes, you are correct in that no prosecution would occur based solely on the testimony of a felon BUT with corroborating evidence I can assure you it would occur. And in the above circumstances you would have some explaining to do - to a jury. As for the 'chain of guilt', believe me Police are not that fussy. They are quite happy to arrest and charge anyone, anytime regardless of whether they are up, down or sideways in the grand scene of criminal culpability. They wield a big butterfly net. As for how the legislation would be worded that is a topic that is far too complex to be discussed here. I can only state that the legislation as it is worded here in highly effective. I can only assume your own legislation would be equally well drafted.
Magazines do not come with their own serial numbers, therefore there is no way to actually register them.
I have a question. Does your nation have a robust protection against self-incrimination that would grant immunity to felons from the registration requirement? One other issue is the U.S. already has (I’m using a 2015 rough estimate from the Washington Post) as of 4 years ago approximately 357 million firearms in private hands, or about 40 million more guns than people at that time. How do we propose to register them?
Sure. There are several ways to corroborate the felon’s claim. If I were foolish enough to communicate by text and not do so in code like drug dealers do, or if I were foolish enough to do things in an area with cameras, and if the video had not been overwritten yet when the crime is finally discovered, and if I was foolish enough to use a bank to handle my illicit cash, then yes, these could be corroborated. We could also, for that matter, issue a search warrant for cell cite records to try and plot our two phones by gps or at least cell tower hits to show the phones were in close proximity to one another at a suspicious time. The felon is always challenged as not being credible because of his record and because of the benefit he is getting for testifying. “He is a career thief who is willing to sell his soul to get out of jail…etc.” What overcomes this argument and corroborates his truthfulness is the details he gives that matches other evidence. The best example of this is the jailhouse informant. When someone comes into the jail with a high profile or incredibly serious charge the snitch pool opens and several other inmates whose crimes are lesser want to go swimming after the golden cooperation ticket. When the swimmer comes forward and says “the murder suspect in my cell block confessed to me and I will cooperate if you help me out,” you have to carefully evaluate their credibility. The first thing we have to do is compare what he says to the evidence we already know. Sometimes all they can give you is the same detail they read in the newspaper, and in those instances we refuse to work with them. But if he gives us accurate details that are corroborated by our investigation, and that information was never released to the media, then you know he had to get it from the mouth of the murder suspect (assuming he has his own alibi and is not himself the murderer). That independent corroboration provides the reason to believe him—and that I believe is the point you are trying to make. I agree with that point. Let me first say in America we operate on the principle of innocent until proven guilty. The government alone bears the burden of proof. The defendant is not required to explain anything. Indeed, he need not even so much as open his mouth before a jury if he does not want to. And if I were to even hint at—much less directly mention—his choice to remain silent or his choice not to produce any other evidence or witnesses, then any conviction would be reversed, and I would be lucky to escape my own punishment for those comments with a sanction less than the suspension of my bar license. But as I said I do take your point about corroboration. Yes, we can convict with the felon’s testimony if sufficiently corroborated. I’ve done this before. The point I am making, however, is how difficult this is. You have to make the deal with the devil, and in the instance of using the robber as a witness you have to do it going the wrong way—holding hands on the path with the greater evil and benefiting him in the quest to go after the lesser evil. Take my Commonwealth of Virginia…here each robbery would carry a punishment of 5 years to life in prison, with an additional 3 year mandatory sentence tacked on top for using a firearm in the crime. And if he entered a home or a business to commit the robbery, then it also adds an armed burglary charge with 20 years to life punishment with another using a firearm charge in burglary with another automatic 5 years on top of that. If you made an unregistered sale a felony (a steep demand in itself—but for purposes of this discussion placing it on par with the felony offense of possession by a felon), then you are talking about a punishment range of no jail time up to 12 months and/or 1 year to 5 years. I mention this because, at least in America, the punishment range for a crime is society’s expression of the level of moral evil involved in a particular crime. This backdrop of the respective punishment ranges is the measure of the wide disparity in how society chooses to command that these actions be censured. It is incredibly difficult to play “let’s make a deal” with the primary evil—the man who engaged in multiple acts of violence that are so dangerous he gave each of his victims the right to kill him if they had the ability to defend themselves. You give him a discount to go after the man who did not commit a crime of violence—who has no prior felony record (indeed he could not have one and have a gun registered to him)—all because he sold a gun to the man without knowing he was going to do anything illegal with the gun other than possess it unregistered and/or possess it as a felon. (note, however, it is a different story if the seller knew the intended crimes of his buyer. Then the seller becomes an accessory to those crimes and can receive the exact same punishment as the robber) Sure, the amount of time you can threaten the robber with gives you plenty of leverage. Indeed, if the desire to punish someone who sold a gun without registering it is that pressing, then I do not doubt you would have robbers, rapists, and murderers lining up to testify against them to get a deal (assuming they know they have no chance of beating their own charges). The real question is who is willing to look into the eye of a rape victim or a robbery victim or the murdered victim’s family and tell them we are going to take it easy on the multi-felon who shattered your life because we really, really want to get the guy down the street who made a couple of hundred extra bucks by selling the gun without registering it. Maybe you would do this if the seller was a long-suspected volume dealer gun runner. But I don’t see it happening much otherwise. Please don’t misunderstand me. I’m not saying it will be impossible to prosecute the seller. I’m just asking everyone to consider how difficult this really is to do, and to understand that registration is unlikely to succeed anywhere near as well as its proponents tell us it will. Registration (assuming it survived a constitutional challenge), is not the panacea that some sell it to be.
I have been all over my state working with law enforcement officers. I can tell you the ones I have dealt with are that fussy. Arresting someone in the hope that we can find evidence later gets police agencies sued, officers fired, and prosecutors disbarred over here. And, assuming there is enough evidence to charge, it is a wide gulf between probable cause to arrest and a conviction based upon proof beyond a reasonable doubt. Does your nation have a Bill of Rights that protects against unreasonable search and seizures? Well over on this side of the pond I have had enough experience with “we have to pass it to find out what is in it,” and I hope that if such legislation is proposed here we will not go back down that rabbit hole. Words always matter. The use of “shall” in place of “may,” for example, greatly changes the impact of a law. It is impossible to predict the effect of any law unless we can see its language. Is there any way you can copy/paste the language of your law so I can look at it?
So you are saying real life is not like what is presented on Law And Order, the Justice system is way more complicated that what those outside of it truly understand.
In Australia any body wanting to purchase a firearms has to get a license first and part of the licensing program is a criminal history check. Someone with a serious criminal history would not be eligible for a license in the first place, so self declaration/incrimination re: a previous criminal history is not generally an issue. FYI in my State at least there in a appeal process in the local court where for example someone with an old (non-violent) criminal history ask for a 'no' decision to be overturned. As for the 'How do we propose to register them ' ? Slowly, steadily and at some considerable expense, as I noted in my previous post. Also as I noted previously, I never said the task would be easy and anyone who thinks it is is fooling themselves.
Yes, I was merely outlining a quick scenario to highlight the idea that a suspected offenders testimony has to be independently corroborated by other evidence before a prosecutor (or a court) will put significant weight on it. That being the case however in the scenario being discussed & assuming there is strong corroborating evidence the person who sold the firearm to the felon faces potential criminal charges. And self incrimination is unnecessary. If arrested they can stay silent (as is his or her right) but that doesn't prevent the State from putting the other evidence (including the testimony of the felon) before a court. (As for the examples of independent evidence I used - I limited it to the real basics. I don't like to give away tricks of the trade on public forums.) Same here. Over here a co-operating felon gets a 'Letter of comfort' detailing to the court the level of assistance provided by the offender. The case officer prepares it (and I'm sure you'd agree they have no reason to sugar coat the facts), the Prosecutor approves it and Defense gets to read it in advance. The judge reads it and adds the contents to any other considerations like early plea and previous convictions before deciding on a sentence. And again we go after the suppliers of illegal weapons with equal vigor than the users. Problem is the suppliers generally won't stop once they start so if we don't cut the pipeline we just end up with more firearm related crimes (and victims) to deal with - and one of the things which assists us is a strong licensing system.
