Do You Have a Right To Use Electrical Weapons?

An anonymous reader writes: David Cravets points out a growing debate in U.S. constitutional law: does the second amendment grant the same rights regarding electrical weapons as it does for traditional firearms? A Massachusetts ban on private ownership of stun-guns is being considered by the Supreme Court, and it's unclear whether such ownership has constitutional protection. The state's top court didn't think so: "... although modern handguns were not in common use at the time of enactment of the Second Amendment, their basic function has not changed: many are readily adaptable to military use in the same way that their predecessors were used prior to the enactment. A stun gun, by contrast, is a thoroughly modern invention (PDF). Even were we to view stun guns through a contemporary lens for purposes of our analysis, there is nothing in the record to suggest that they are readily adaptable to use in the military." The petitioner is asking the court (PDF) to clarify that the Second Amendment covers non-lethal weapons used for self-defense. Constitutional law expert Eugene Volokh agrees: "Some people have religious or ethical compunctions about killing. ... Some adherents to these beliefs may therefore conclude that fairly effective non-deadly defensive tools are preferable to deadly tools."

Comments

Yes

[EmagGeek]

The Constitution does not say "firearms." It says "arms."

"Arms" include firearms, electrical weapons, slingshots, bows and arrows, and any other sort of weapon.

Re:Yes

[digsbo]

Yes. Further, the point of the 2nd amendment was to equip the population to throw off tyranny. Any and all arms effective for that purpose seem covered by intent. Even ordnance, which was provided by private owners to fight the British. The intent being, specifically, to be able to fight a government.

Re:Yes

[FranTaylor]

If the Police can have it....then so should we the citizenry....

you mean the ability to murder without consequence?

Re:Yes

[nyet]

Considering the responses we're seeing from most people here ("omg well regulated"), discussing the nuances and legalities of US v Miller with them is like discussing quantum electrodynamics with somebody who has barely mastered arithmetic.

Re:Yes

[Anonymous Coward]

But that's not what the 2nd amendment says. It says, simply, "arms". It is not specific or restrictive about the type or scope or feasibility or safety of said armaments.

US citizens have the right to keep (own and store) and bear (carry and use) arms (of any and all varieties, see also: 10th amendment). Any illegal actions that they perform with those tools of destruction is still, by definition, illegal and will bring the necessary punishment upon them. Any legal actions that they perform with those tools of destruction (possibly as judged by the survivors of said destruction) will not bring punishment.

Law is an inherently reactive, not proactive, thing. For as long as you can't read minds perfectly and in real-time, you cannot apply law proactively within the bounds of justice. Also, things don't cause harm, people do. To preemptively punish for an action that has not yet been performed or for possession of a thing that has not been used to cause harm is to institute tyranny. And that is the spirit of the 2nd amendment.

Re:Yes

[roc97007]

if applied in practice, produce a police force entirely compatible with anarchism.

But only guaranteed if someone were to enforce your rule #1... which of course would be incompatible with anarchism.

Hence the flaw in many arguments for various non-centralized forms of government. If the rules aren't enforced, they're likely to forcibly change. If they're enforced by some central authority, the government is no longer what you said it was.

My favorite example was the young woman interviewed during Occupy Wall Street, who said we should all abandon money and civilization and go back to being an agrarian society. When it was pointed out to her that such a decision would cause a massive die-off of American citizens, her response was "well, people die."

Ok, let's look at that for a minute, sweetness. You and your colorful friends develop an agrarian society somewhere, and let's say you're actually successful, in that you can adequately and sustainably feed all of your members with a little left over.

Then, one day a bunch of hungry brutes with guns arrive, and suddenly you find that the survivors in your little community are working for the brute squad, and life isn't nearly as nice. What are you gonna do about it? "Mike check!"

Can't see any logical difference

[sjbe]

Massachusetts ban on private ownership of stun-guns being considered by the Supreme Court, and it's unclear whether such ownership has constitutional protection.

Although logic rarely gets involved in discussions around the 2nd Amendment, I can't think of any logical reason why stun-guns should be treated any different than firearms. The 2nd amendment says the right to keep and bear arms shall not be infringed but it doesn't specify only weapons that use gunpowder. The fact that stun-guns using electricity are of recent development is not a relevant consideration to my mind.

The petitioner is asking the court (PDF) to clarify that the Second Amendment covers non-lethal weapons used for self-defense.

There is really no such thing as a "non-lethal weapon". ANY weapon can be used to kill even if they are primarily designed to incapacitate. That said, prohibiting weapons which are generally less lethal while allowing ones that are designed primarily to kill is the height of stupid.

Re:Exclusivity

[fightinfilipino]

Governments and their enforcement branches do not want civilians to have the means of defending themselves from those same government enforcers. Their goal is to keep the public totally defenseless. A defenseless citizenry is easily controlled.

this makes literally no sense in today's age. modern militaries have leaps and bounds better weapons than anything civilians could possess. even worse, this operates on the premise that the only way to have civilization is through constant fear of one another. that's a terrible model of humanity, and no one should want a part of it.

Re:Exclusivity

[nyet]

modern militaries have leaps and bounds better weapons than anything civilians could possess.

Infantry small arms have not significantly changed in a very long time, and of course civilians can posses small arms commonly borne by infantry.

Re:A Constitutional Rat's Nest

[Anonymous Coward]

In 1789 "arms" meant a musket or a flint lock pistol that fired a miniball, at most twice a minute. I wonder, how far from that can you go and still claim the 2nd amendment applies?

You're trying to play word-lawyer instead of looking at the meaning behind the words. The Second Amendment doesn't exist so people can own muskets. The Second Amendment exists because a group of farmers, doctors, and lawyers had just finished overthrowing their own government to secure their liberty and they wanted to make sure future generations also had the ability to do so. That's the context in which all of this should be viewed; not looking up "arms" in a dictionary trying to figure out how far it goes.

The US Constitution is not an instruction manual. It's a statement of guiding principles intended to be broad enough to survive changes to language, customs, and technologies.

An semi-auto assault rifle? Genertally legal.

Constitutionally protected, but in certain states you can largely kiss this goodbye. States like Maryland, California, New York, Connecticut, and others ban or otherwise heavily restrict even the most popular versions of these. Frankly, I think the legislators who pass such laws should go to prison for human and civil rights violations.

A fully-auto assault rifle? Generally not legal.

Wrong. While these are constitutionally protected arms, and while some states do have unconstitutional restrictions on these arms, most states simply follow Federal law (generally governed by the National Firearms Act and the Gun Control Act - both of which are blatantly unconstitutional and will be declared as such within 20 years). As such, use of these weapons is fairly unregulated (i.e. you can rent/borrow at an indoor or outdoor range and use them all day every day). Ownership of pre-ban automatic weapons is pretty wide open (subject to certain states' restrictions and the usual restrictions for ownership/possession of any any firearm, such as not being a convicted felon). Ownership of post-ban automatic weapons is more heavily regulated by ATF and typically requires that you be in the business of selling such weapons to the military or law enforcement. At that point, you can again purchase and own them pretty freely.

A grenade launcher? A guided missile? A booby trap bomb? Not legal in the US, today.

Wrong. These are classified by ATF as a "Destructive Device" and require registration and a $200 tax stamp for purchase. For a grenade launcher, the launcher AND each round of ammunition requires that you pay the tax stamp and register them and when each round is used, you must report to ATF that it's been destroyed. A pain? Sure. Expensive? Sure. Legal? In most states (subject to very similar restrictions as fully automatic weapons), yes. Constitutionally protected arms? This is where I think we start getting into a more challenging area. I would certainly argue that a grenade launcher is protected. An IED? I lean toward yes, but I'm not completely certain. It fits the general concept of the Second Amendment, so I have a tough time arguing against it.

So there are limits to protected "arms", ill defined as they are. But If we finally had to update the 2nd amendment due to rising tech, things could get interesting.

If the 2nd Amendment is a civil right, what purpose do arms serve the citizen? If self defense, and since there are many more ways to defend one's home and family today than in 1789, should we amend the 2nd to emphasize the goal of self defense rather than allow it to advocate arms as a means to an end that's ill served by the tech advance of ever deadlier offensive weapons - pistols and rifles?

Given the huge difference between an 18th century musket and modern light arms, and the indifference of regulators to respond to that difference, it seems likely that the escalation of guns protected by the 2nd amendment is going

Re:A Constitutional Rat's Nest

[Orgasmatron]

In 1789 "press" meant a movable type device that printed a single sheet, at most a few times a minute. I wonder, how far from that can you go and still claim the 1st amendment applies?

A typewriter?
An electronic fax machine?
A computer? A cell phone? A global inter-network?

So there are limits to protected "presses", ill defined as they are. But If we finally had to update the 1st amendment due to rising tech, things could get interesting.

If the 1st Amendment is a civil right, what purpose do presses serve the citizen? If self expression, and since there are many more ways to express one's thoughts and feelings today than in 1789, should we amend the 1st to emphasize the goal of self expression rather than allow it to advocate presses as a means to an end that's ill served by the tech advance of ever broader expression systems - telephone and internet?

Given the huge difference between an 18th century press and modern communications, and the indifference of regulators to respond to that difference, it seems likely that the escalation of presses protected by the 1st amendment is going to cross a line, and soon.