The 2nd amendment is very clear about both the right of individuals to "bear arms".....AND the right of the states to regulate them ("necessary to the security of a free state" Elliot is right .The 2nd amendment guarantees primarily the right to stage a revolution against a State that is no longer free.
BTW ;the Bush Adm .made a terrible blunder this week in their Amicus Brief of District of Columbia V Heller http://armsandthelaw.com/archives/07...itedStates.pdf
The lower court ruled in favor of the individual to own guns ;the DC law had banned all hand guns and rifles in the district. But the question remained ;which weapons were permitted and which laws could the locals could adopt.
The court had ruled based on the the weapons ordinary people owned in the Founding eraaccording to the second Militia Act of 1792 that :
Quote:
"It follows that the weapons described in the Act were in 'common use' at the time, particularly when one considers the widespread nature of militia duty.. . [T]he Act distinguishes between the weapons citizens were required to furnish themselves and those that were to be supplied by the government . . . The Act required militiamen to acquire weapons that were in common circulation and that individual men would be able to employ, such as muskets, rifles, pistols, sabres, hangers, etc., but not cumbersome, expensive, or rare equipment such as cannons."
The court went on to say that
Quote:
"The modern handgun -- and for that matter the rifle and long-barreled shotgun -- is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller's standards. Pistols certainly bear 'some reasonable relationship to the preservation or efficiency of a well regulated militia.' They are also in 'common use' today, and probably far more so than in 1789."
The court also ruled that Second Amendment does not guarantee a right to carry a concealed weapon that gun registration and proficiency testing are acceptable. Prohibitions on gun ownership by people who exhibit "insanity or felonious conduct" don't infringe a constitutional right.
So the Bush Justice dept ;interested in maintaining Federal Assault Rifle bans write in the brief the following .
Quote:
"The court's decision could be read to hold that the Second Amendment categorically precludes any ban on a category of 'Arms' that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns."
(I will not get into the absurdity of this argument .If machine guns aren't traceable to the weapons of the 18th century then neither is any other modern rifle.)
In other words ;according to the Justice Dept. some guns are "lineal descendants" and some aren't .
Further when discussing which regulations are acceptable the Justice Dept argues that
Quote:
courts "should consider (a) the practical impact of the challenged restrictions on the plaintiff's ability to possess firearms for lawful purposes (including the nature and practical adequacy of the available lawful alternatives), and (b) the strength of the government's interest in enforcement of the relevant restriction."
In other words the courts should consider what degree of infringment of the 2nd Amendment is acceptable.
The Bush adm. Has had a pretty good record regarding 2nd amendment issues. But with this brief they should consider turning in their NRA cards .
