Replies

As I understand all rights are allowed by a Supreme Court decision to be regulated provided the regulation does not subvert the right.

“fire” in a theater for example.

Your understanding is a bit flawed.

You absolutely CAN yell “FIRE!” in a crowded theater. However, along with your right to do so comes the responsibility you bear if there is, in fact, no fire, and people got hurt or killed because your utterance caused a panicked rush for the exits.

That’s what really ticks me off - that people (mainly on the Left) aren’t mature enough to understand that with rights come responsibilities. They are a package...and I only wish that the Founders had said something explicit about that in the Constitution. However, I can’t really blame them - this is simple, this is common sense, so why would you need to state it. Stating it would be like putting “the sky is blue” in the Constitution.

Now, on to the subject of this thread:

I do NOT believe that Congress has the power to ban suppressors (not “silencers” - that word is very much a misnomer in this context, as these devices only lessen the perceived sound, they don’t eliminate it). Why? Because it is an accessory to some arms, and the right to keep and bear arms is explicitly protected from infringement by the feds in the 2nd Amendment. An argument could be made that certain arms can be regulated (i.e. one’s right to keep and bear them can be infringed) because of some reason deemed essential to a particular state, but I would strenuously disagree. You see, in Article 1, Section 8 (dealing with the powers of Congress) there is a clause that says that Congress can issue “Letters of Marque and Reprisal.” Well, what in the Sam Hell are THOSE, you may ask? Simple answer: Congressional authorization to take hostile action against an enemy’s forces or merchant ships. These Letters necessarily imply that the private citizens (or groups of citizens, such as in a company) have the arms to have a chance to successfully engage enemy forces. So, during the Revolutionary War, the Continental Congress issued many such Letters, and rich folks who owned ships armed with cannon (MANY cannon) were authorized to battle British warships and to seize or sink British merchant ships (and the argument that the writers of the Constitution or the 2nd Amendment were unaware of this is preposterous, especially as some of those signing the Constitution received Letters themselves). So for anyone opposed to this interpretation of Letters of Marque and Reprisal, how was a private citizen to take on a British naval vessel without having equivalent weaponry with which to fight it? Hundreds of Letters were issued by the actual Congress during the War of 1812, and many were issued at later dates (including the unsubstantiated claim that one was issued in WW2 so that someone going up in a hot air balloon to search for incoming Japanese aircraft could bring a rifle to shoot at those planes in self-defense). All of which points to Americans having the right to own ANY arms (not including those arms that cannot be used to discriminate between particular people - such as WMDs). Anything other than WMDs are allowed and, according to the 2nd Amendment, one’s right to keep and bear them CANNOT be infringed upon. Bill Gates could, if he wished to spend the money, purchase and operate his very own carrier battle group. Of course, as mentioned earlier, if you misuse those arms (whether a slingshot or a carrier battle group, and everything in between), then you are responsible for the consequences. But any attempt by Congress to infringe upon one’s right to keep and bear such arms because “they might be used in an irresponsible way” or because “they are inherently dangerous” is nothing more than a case of prior restraint - which the Supreme Court has ruled in other contexts many times is forbidden.

Another question is whether the 2nd is binding upon the states. I would also make the argument that by joining the Union, the 13 original states were and are also bound by any amendments to the Constitution, even if they didn’t vote for them (although, in the case of the BoR, they voted unanimously to approve them). All states admitted after the BoR was ratified have no choice but to abide by them (and all other amendments) because by seeking to join they automatically bought the entire package. Of course, even if one doesn’t agree with this argument, then the 14th Amendment exists, and its purpose was to make utterly certain that any rights possessed by citizens in one state would be just as protected in any other state. This latter principle has been affirmed in many Supreme Court cases.

WRT the enumerated powers doctrine, this basically says that Congress (or the government in general) only has those powers that are specifically provided for in the Constitution (as amended). Not only would banning suppressors be unconstitutional on this basis, but the Founders spoke rather definitively on this issue when they proposed the BoR, which was then ratified by the States...specifically, the 10th Amendment, which reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This very CLEARLY states that unless a power was delegated to the United States (i.e. Congress, since only it can pass a bill that may become law, but also the regulatory agencies who are acting under Congressional authority to enforce laws), then it is reserved to the states (and see above about states infringing upon the 2nd Amendment) or to the people. IOW, since nothing in the Constitution says that Congress can infringe upon one’s right to keep and bear arms, then it simply can’t - because that right belongs to the people (IOW, I can forbid anyone to own a gun in my own home...even though I wouldn’t, in reality).

One more nit to pick: the term “well-regulated” in the 2nd Amendment. This term had an altogether different meaning long before and long after the 2nd Amendment was written than it does now. Now, of course, it means that the government on any level has oversight over what a person can do; it can decide whether you can or cannot do it and, if so, under what conditions, and charge you a fee for giving you the requisite permission (i.e. a permit of some type). IOW, whatever it is that is being regulated (in modern parlance) is NOT a right, as a right CANNOT be infringed upon, by definition - it is a right or it is not. However, 2+ centuries ago the term “well-regulated” referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people’s arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely the OPPOSITE - to render the government powerless to do so that the founders wrote it. https://www.constitution.org/cons/wellregu.htm