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The Courts United States Technology

Do You Have a Right To Use Electrical Weapons? 698

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."
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Do You Have a Right To Use Electrical Weapons?

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  • Yes (Score:5, Insightful)

    by EmagGeek ( 574360 ) <gterich@aolRASP.com minus berry> on Friday August 21, 2015 @02:22PM (#50364437) Journal

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

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

    • by Adriax ( 746043 )

      I wonder if concealed carry permits cover broadswords?

      • Re:Yes (Score:5, Funny)

        by msauve ( 701917 ) on Friday August 21, 2015 @02:35PM (#50364561)
        Is that a broadsword concealed in your pocket, or are you just happy to see me?
        • Is that a broadsword concealed in your pocket, or are you just happy to see me?

          Neither... It's my AR-14, and you better hope I'm not unhappy to see you....

      • In many states the permits simply state the right to bear a concealed weapon. Hence often referenced as a concealed weapons permit.

        It's one of my objections with the Pennsylvania permit, while it is one of the best states for personal firearms possession. The permit is worded specifically as a "License To Carry Firearms" (LTCF)

      • It would be easier to just open carry.
    • Re:Yes (Score:5, Insightful)

      by digsbo ( 1292334 ) on Friday August 21, 2015 @02:30PM (#50364493)
      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.
      • Ordinance was usually considered the possession of a town, estate (which was akin to a deeded minor titled land holder), or a vessel (a ship being in many ways treated as a small village).

        Hence, I view the 2nd Amendment, that ALL small arms (personal weapons) are protected. But ordinance/artillery is not. We should have access to machine guns, but not necessarily nukes or missiles.

        • To split a hair ... I own my house ... "Mister" is a minor title. and there is definitely a deed for my house which effectively makes me a deeded minor titled land holder... so you're OK with me owning "ordinance" ?
          • by Nidi62 ( 1525137 )

            To split a hair ... I own my house ... "Mister" is a minor title. and there is definitely a deed for my house which effectively makes me a deeded minor titled land holder... so you're OK with me owning "ordinance" ?

            My college roommate has a small cannon sitting in his living room. Owning ordnance in the US is legal, you just can't own explosive projectiles.

      • Yes. Further, the point of the 2nd amendment was to equip the population to throw off tyranny.

        so according to you, individuals should be able to purchase and use nuclear weapons without a permit

        • by nyet ( 19118 )

          Still haven't read US v Miller yet, I see.

        • so according to you, individuals should be able to purchase and use nuclear weapons without a permit

          Sure, as long as they pass a background check, and don't remove the serial numbers. Of course, the background check could be waived if they are just buying a small tactical nuke at a gun show.

      • by mspohr ( 589790 )

        It also specifically mentions "a well regulated militia" but most gun rights advocates conveniently forget that part.

        • by nyet ( 19118 )

          Are you sure you know what "well-regulated" means in that context?

        • The structure of the sentence doesn't specify militia membership as a pre-condition for keeping and bearing arms. It merely implies that a well regulated militia requires arms, that militias are composed of citizens and thus grants citizens the right to bear arms, implying that they thereby would be able to join together into a militia if they so chose.
        • It also specifically mentions "a well regulated militia" but most gun rights advocates conveniently forget that part.

          Never read the Militia Act, I see.

          Hint: The Militia Act defines the Militia. The definition is basically "every adult male in the USA".

          Which makes me a member, and probably the overwhelming majority of /. members as well.

          Note that later laws regarding women in the Military could be used to argue that every adult female is also a member of the militia. Which would make my wife, my daught

    • by nyet ( 19118 )

      Ideologically (and logically) that would make sense, but US v Miller established the "common use test".

      Really there are three different questions:

      1) Should they be constitutionally protected?
      2) Are they constitutionally protected if one interprets the 2A ignoring legal precedent?
      3) Are they constitutionally protected given the current legal understanding (post US v Miller) of the 2A?

      When somebody gives their opinion on the topic, always try to figure out which of the three they are attempting to answer.

      • Thing is, if Miller v US is revisted, the $200 tax stamp on NFA items and the actual NFA registry is unconstitutional

        What is issued to the average infantry soldier in today's Army/Marines? Short barrel rifle, select fire. Often suppressed. Occasional short barrel shotguns (door breaching, etc). The M203 (or whatever current version of it is) 40mm grenade launcher (you can own one, but it is a NFA destructive device)

      • Actually US vs Miller, is probably one of the most flawed decisions ever made. It was quite possibly staged. Mr. Miller's side didn't even have a defense. And he was found dead before the decision (you can decide if it was by gang rivals or government officials).

        It even ignored the fact that yes, the military used 30-40 thousand short barreled shotguns.

        And if you want to use the common use clause. Then we need to remove restrictions on the M4 Automatic battle rifle used by our military.

        • Re:Yes (Score:5, Insightful)

          by nyet ( 19118 ) on Friday August 21, 2015 @03:03PM (#50364939) Homepage

          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.

    • It also says, "well-regulated militia".
      • by nyet ( 19118 )

        And your definition of "well regulated" is what? Are you sure it means what you think it means?

        • slavery used to be constitutional, but that's an inconvenient fact to people who argue that the constitution is perfect just as it is

        • by mspohr ( 589790 )

          Well... It's not any crazy who loves guns.
          "Well regulated militia".
          Militia is 1. An army composed of ordinary citizens rather than professional soldiers.
          2. A military force that is not part of a regular army and is subject to call for service in an emergency.

          • Keep reading the rest of the amendment, and you will find that it actually prevents congress from restricting anyone's ownership of "arms". Arms being the nebulous term it is for very good reason.

      • Merriam-Webster:

        militia: the whole body of able-bodied male citizens declared by law as being subject to call to military service.

        Considering we don't want to discriminate against women, that means the entire able-bodied population.

        This leaves "well regulated". The laws regulating firearm ownership pretty much have that covered.

      • by PortHaven ( 242123 ) on Friday August 21, 2015 @02:49PM (#50364745) Homepage

        Which if you do research, you will learn did not mean "regulations" as we use the term today. It meant "well trained/equipped"...

    • Totally correct.

      I would even go so far as to point out that traditionally, the legal system has treated tasers as they do guns, especially the ones that fire darts (some use gunpowder to launch the darts.)

      The right to bear arms must include any weapon, otherwise we are just asking for future technology to negate our constitutional rights.

      Just as the right to free speech also applies to TV, Radio and the internet, the right to bear arms includes all reasonable weapons designed to replace guns.

    • Indeed. Portraits of George Washington show him carrying a sword. Thus short-range non-lethal weapons certainly existed at the time of the Bill of Rights.

      Besides, there is a M-26 Taser version used by the military, so it is definitely a military weapon.

    • ... It says "arms."...

      It also says "regulated".

      • by 0123456 ( 636235 )

        It also says "regulated".

        And you just proved you have no reading comprehension or historical knowledge.

        The Constitution implicitly assumes the existence of private warships that Congress can issue letters of marque and reprisal to. The founders wouldn't have given two mosquito farts about people owning stun guns.

      • by nyet ( 19118 )

        "well-regulated" != "regulated"

        You do know what "well-regulated" meant in the time of the phrase's contemporary use, right?

    • Do arms include RPG's, heavy machine guns, howitzers, or suitcase nukes? While I'm in favor of legal private ownership of stun guns and tasers, there are basically no reasonable people who think nuclear weapons should be available to all citizens.

      From wikipedia: A weapon, arm, or armament is any device used in order to inflict damage or harm to living beings, structures, or systems.

      Therefore, nuclear weapon == Arms
      It thus follows that no reasonable person believes in the 2nd amendment.

      This is obviou
    • The spirit of the law was that the citizens can have whatever arms the government does. That's been eroded significantly.
    • by msauve ( 701917 )
      With the court's logic, since high speed printing presses/TV/radio/cable/Internet are all new fangled inventions, free speech shouldn't apply to those.
      • by 0123456 ( 636235 )

        With the court's logic, since high speed printing presses/TV/radio/cable/Internet are all new fangled inventions, free speech shouldn't apply to those.

        To be fair, they've already basically said that, since the Internet didn't exist in the 18th century, the fourth amendment doesn't apply to it. So it wouldn't be inconsistent.

    • The Constitution does not authorize the US government to operate an Air Force, only an Army and Navy. Does that mean that anything more modern than was available in the 18th century is unconstitutional? Of course not. Likewise, modern arms, so long as they fall within the spirit of the framers intent, are also legal.
  • by sjbe ( 173966 ) on Friday August 21, 2015 @02:29PM (#50364487)

    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.

    • An important difference is that a "non-lethal" weapon is much more likely to be used than a lethal weapon. For example, police will very frequently use water guns, pepper spray, tear gas, rubber bullets, tasers, and the like in cases where they would never have used lethal force.

  • by PortHaven ( 242123 ) on Friday August 21, 2015 @02:34PM (#50364547) Homepage

    Yes, the case was used for banning sawed off shotguns. The argument being the military didn't use them, therefore they were not protected.

    Couple points, that decision was flawed. It is well documented that it was one of the worse Supreme Court cases in history. And likely staged...Neither the defendants nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling.[4] Miller was found shot to death in April, before the decision was rendered.[5]

    So imagine using as precedent a case that was never even defended against. So what were the precedents established?

    1.The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.

    2.The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.

    ***

    If you want to USE that argument. Then guess what? 1. This would overturn the 1986 prohibition against post '86 machine guns and fully automatic rifles. As these ARE used by military. 2. Our military now regularly uses short barreled shotguns in door-to-door operations. As such, short barreled rifles would now have to be legal sans the tax stamp.

    And even back in the day it was an incorrect decisions as: During WWI, between 30,000 and 40,000 short-barreled pump-action shotguns were purchased by the US Ordnance Department and saw service in the trenches and for guarding German prisoners.[8]

    ***

    AND A BIG FYI - Shot barreled shotguns are NOT illegal per Federal law. They merely require a tax stamp and registration.

    https://en.wikipedia.org/wiki/... [wikipedia.org]

    LASTLY>>>>>>>

    The 2nd Amendment does not state the right to bear guns, or even firearms. But arms....a term for personal weapons...this means guns, knives, swords, electromagnetic pulse pistols, tasers, etc....are ALL protected by the words of the 2nd Amendment.

  • by QuietLagoon ( 813062 ) on Friday August 21, 2015 @02:35PM (#50364553)
    ... but don't event think of trying to take my laser weapon system [businessinsider.com] away from me.
  • [A]lthough 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.

    Thank you Second Circuit. I look forward to exercising my right to bear swords, pikes, and various firearms with accompanying bayonets. All these being Napoleonic melee weapons in common use at the time of enactment of the second amendment. When I open ca

    • by Nidi62 ( 1525137 )

      Thank you Second Circuit. I look forward to exercising my right to bear swords, pikes, and various firearms with accompanying bayonets. ....I fully expect you to back me to the hilt

      I see what you did there

  • So my WWII era flamethrower is ok then?
  • Every time there's a local initiative to get people to turn in their guns, I wonder why they don't offer to give each person a stun gun in its place. That would be far more enticing to me. It seems like a reasonable compromise on the debate of gun control would be to have strict regulations on lethal arms while non-lethal may be purchased by all.

    Maybe someone better informed on statistics can weigh in on this?

    • by 0123456 ( 636235 )

      Every time there's a local initiative to get people to turn in their guns, I wonder why they don't offer to give each person a stun gun in its place.

      Because drug dealers aren't going to swap an AK47 for a taser? At least, not unless they've just done a driveby and need to get rid of it before the cops trace it back to them.

    • by nyet ( 19118 )

      Cops carry both lethal and (only sometimes) non-lethal weapons for a reason.

      Can you guess why?

  • Yes.

  • by RandCraw ( 1047302 ) on Friday August 21, 2015 @03:30PM (#50365241)

    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?

    An semi-auto assault rifle? Generally legal.
    A fully-auto assault rifle? Generally not legal.
    A grenade launcher? A guided missile? A booby trap bomb? Not legal in the US, today.

    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 to cross a line, and soon.

    • "If the 2nd Amendment is a civil right, what purpose do arms serve the citizen"

      Remaining citizens rather than slaves....

      Whatever small arms the U.S. military has access to, the U.S. citizen is supposed to have access to.

    • by phantomfive ( 622387 ) on Friday August 21, 2015 @04:27PM (#50365897) Journal

      In 1789 "arms" meant a musket or a flint lock pistol that fired a miniball, at most twice a minute.

      I'm not sure that's true. Based on the earliest American dictionary [uchicago.edu], it seems they took arms to mean "weapons." Note that it includes examples of "arming a militia" or "arming a country," and discusses arms as "weapons, or means of attack or resistance."

      So I'm not sure you can rule out any weapon of the day, certainly not knives and swords, but also cannons and ships.

    • by Orgasmatron ( 8103 ) on Friday August 21, 2015 @04:47PM (#50366051)

      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.

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