A Reminder about Constitutional Rights

As I read various comments and commentary about the the Second Amendment, I would simply remind everyone that constitutional rights can be regulated.  To listen to some people, it would seem that there is something so sacrosanct  about constitutional rights that we can’t make any rules about them.  This is simply not not true.

None of the constitutional rights are so pure that they are absolute and unregulated.  There are regulations of speech, of the press, of religion.  And, of course, of guns.

You cannot buy a fully automatic weapon.  This is a line we have already drawn, and  underscores that lines can be drawn.  As such, further discussion of line-drawing is not some ridiculous assault on the Second Amendment, whether we are talking about bump stocks or regulation of semi-automatic rifles.

But, another reminder:  the ability to regulate requires political will and the ability to change laws and have the courts accept those laws if challenged in court.  As such, I am no Pollyanna in terms of the politics–these kinds of regulations are hard, especially in a polarized environment on an issue many consider part of their identity.

 

FILED UNDER: Quick Takes, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Stormy Dragon says:

    You cannot buy a fully automatic weapon.

    You can actually, just not one made after 1986, so they’re hideously expensive.




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  2. @Stormy Dragon: Fair enough. Still, that doesn’t negate my basic point.




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  3. OzarkHillbilly says:

    @Stormy Dragon: Ummmmm… Not so sure that is true. A buddy of mine has a fully automatic .22 cal rifle he bought in the past few years of apparent recent manufacture. He had to jump thru some federal hoops but he was able to get the *permit* to own such a weapon.

    Mind you, I don’t think he or anybody else has any business owning such a weapon, but it is a hoot to shoot. Sadly for the gun nuts, “hoots to shoots” are not a constitutionally guaranteed right.

    ETA **and he had to pay the required permit fees, but IDNRC what they were.




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  4. JKB says:

    But, another reminder: the ability to regulate requires political will and the ability to change laws and have the courts accept those laws if challenged in court.

    And ultimately, acceptance by the broader population or it simply fosters lawlessness. See the alcohol Prohibition debacle. Perhaps the broad defiance wouldn’t surpass that of the current drug trade, for which the local, state and federal government have prove powerless to even seriously impede. Or perhaps open conflict erupts rendering officials unable to operate out of their home bases except in force.

    Ironically, this latter seems to be on the way over immigration, not an enumerated right. Are we so far away from ICE coming under attack in as state such as CA and local officials refusing aide? At which point, to maintain legitimacy, the federal government would have deploy enough federal law enforcement to enforce federal law in hostile territory.




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  5. Stormy Dragon says:

    @OzarkHillbilly:

    Firearm Owners Protection Act – Ban On New Automatic Firearms

    There’s several possibilities here:
    1. Your friend is retired law enforcement and thus exempt
    2. The “permit” you describe is actually a federal firearm dealer license
    3. The receiver (the part of a gun that federal law actually considers “the gun”) was registered before 86 even if the rest of the gun around it is newer (and it should be notice that right before the deadline, people were registering blocks of metal as machine guns so that they could be made into legal receivers after the deadline).
    4. He’s not in compliance with the law and is unknowingly committing a federal felony




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  6. Andy says:

    Automatic weapons are an interesting case. As with much in federal law, particularly related to guns, it’s all about definitions.

    The 1986 law actually bans “machine guns” which are defined as:

    “…any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manually reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”

    The “single function of the trigger” is why bump stocks are legal. Bumps stocks aren’t the only ones – there are a whole host of modifications that allow fully automatic fire while remaining legal because they do not fall under the “single function of a trigger” definition for “machine gun.”

    John Zawahri, the Santa Barbara shooter, was unable to legally purchase a gun. Instead, he bought an unfinished AR-15 lower (which are not regulated), completed the milling to create a fully-functional receiver, and then bought the accessories to make it a functional rifle. This is actually completely legal!

    The reason this was possible is due to how firearms are defined in federal law. The controlled item (with the serial number) is either the receiver or frame, depending on the weapon. For the AR-15, it’s the lower receiver – every other part of the weapon ( with a few exceptions) are accessories and can be purchased online. If you make your own receiver (which is pretty easy to do), then you can build a completely unregistered firearm and it’s all legal.

    One could also mention the brave new world of 3D printing and consumer-level CNC machining.

    @OzarkHillbilly:

    I’m not an expert in this area, but in some cases you can take pre-ban automatic trigger assemblies and put them into a new receiver. The trigger assembly, in this case, is the controlled item that makes the firearm a machine gun.




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  7. Stormy Dragon says:

    @Andy:

    In my point 3, I should have said “controlled part” rather then “receiver”. I forgot that for some guns, the controlled part isn’t the receiver.




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  8. Tony W says:

    Machine guns aside, you can’t have nuclear weapons or cruise missiles. Point is – nobody thinks all weapons are okay for the masses. Thus, the debate has always been about where that line is.

    Reasonable people can disagree about whether an AR-15 crosses the line one direction or another.

    I also think most people are reasonable on this debate.




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  9. Daryl's other brother Darryl says:

    As a gear-head I am not comfortable with the talk of bans. If you can ban Ar-15’s how long before someone decides to ban my Ducati because it’s too friggin’ fast?
    Rather I think we should take the Constitution at it’s word. Well-regulated, in the 2nd, means well-trained. We should demand regulations and training commensurate with the purpose of guns. They are meant to kill. To be able to own a killing machine should logically demand rigorous training, testing, and mental health evaluations. No way you should be able to walk into a Walmart and just plunk down the cash for something like an AR-15. Guns are serious things. Only the most serious amongst us should have access.
    Getting back to my Ducati; I spend a lot of time and money honing my skills. Primarily track days and coaching from other accomplished riders. I would not have the least issue with having to pass some sort of advanced scrutiny or regulations.
    Serious gun owners wouldn’t either.




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  10. Just Another Ex-Republican says:

    Judging by my Facebook feed, the current nonsense seems to be that the right to bear arms doesn’t come from government at all, but directly from God. The “logic” apparently being that since the Declaration mentioned the inalienable right to liberty coming from our creator, and liberty requires weapons, therefore God says we can own guns, regardless of what the 2nd amendment or government says.

    Some days I think I should just resign from the human race.




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  11. Mister Bluster says:

    @Just Another Ex-Republican:..the current nonsense seems to be that the right to bear arms doesn’t come from government at all, but directly from God.

    Meet of one of Trump’s local minions.

    To the Editor of The Southern Illinoisan:
    The deep state hierarchies of the FBI and Department of Justice behind closed doors against President Donald Trump has been revealed.
    The FBI and Department of Justice are in their ivory towers every day thinking how to destroy the United States of America.
    In the rank and file of the FBI and Department of Justice, there are God-fearing, law-abiding American citizens who are doing their jobs right. And President Trump is right — the FBI and Department of Justice were spying on him with lies and bias.
    Congress needs to start a special counsel to send the deep state hierarchies of FBI and Department of Justice who broke the law to prison. Some of those members have committed crimes worse than Watergate.
    President Donald Trump, alias Trump of God, will sound in the White House, then Trump of God will sound and Jesus will return.

    George Cully




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  12. Matt says:

    @Stormy Dragon: You can buy a post ban automatic weapon with the proper licensing. When you see weaponry used in movies it’s got to get there somehow and it’s usually a company that specializes in providing such things. You need both a proper FFL and SOT to purchase a non pre-ban automatic weapon. Also needed for devices that are regulated as “destructive devices” by the ATF.

    @OzarkHillbilly: If he owns it legally then he went through an extensive array of hoops including background checks that can take up to a year to complete. You need both a proper FF License and SOT to own such a weapon. As long as he owns the weapon he has to renew his stuff every year or two (depending on the class) for a set amount.

    The proper paperwork can vary from a few hundred to several thousand a year. Of course even with the license he still might not be able to legally own the gun if the state he lives in has it banned or it’s type banned.




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  13. Stormy Dragon says:

    @Matt:

    You need both a proper FFL and SOT to purchase a non pre-ban automatic weapon.

    An FFL is a dealer’s license. That falls under point 2 in my list. Theoretically they’re only supposed to be holding the fully automatic rifles for the purposes of selling them to a police department or military unit. Now there are people who get FFL’s so they can own fully automatic rifles for their own use, but this is considered a loophole, and indeed the Obama administration was going to great lengths to eliminate FFL’s held by people who weren’t actually in the business of selling firearms.




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  14. pjp88029 says:

    Hi, I think you should edit your article to change the example of “you can’t buy fully automatic weapons” in regards to the Second Amendment to stop all the comments on this one teeny weeny part of your overall excellent educational article about our Constitution. Just a suggestion.




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  15. Stormy Dragon says:

    @pjp88029:

    Our being pedantic isn’t hurting anyone! Let us have our fun! =)




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  16. Matt says:

    @Stormy Dragon: A type 3 FFL has nothing to do with being a dealer. It’s for curio and relic collectors. Oh BTW the earliest ar-15s that were built are becoming legally C&R now.

    It could be argued that the type 6,7,8,10 and 11 aren’t technically dealer’s licenses as they deal with manufacturing or importation.




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