[edoo]

Quarantining the sick is legal but otherwise the freedom of assembly clause in the 1st amendment does not say "except when there is a pandemic or other fear". If you don't believe that should be the law fine, but since it is law and is incorporated to the states via the 14th amendment it qualifies as illegal.

[jcranmer]

Freedom of assembly, like the other 1st amendment freedoms, can be regulated by government so long, per prior SCOTUS decisions. They key is that restrictions must be content-neutral and can only pertain to "time, place, and manner," additionally surviving strict scrutiny (which, in plain English, means "there's no other way to do it"). This is bread-and-butter First Amendment court case stuff; any US government class that's at least halfway competent ought to have covered this.

The coronavirus bans on public gathering are fairly clearly permissible under SCOTUS precedent.

[arcticbull]

I would argue the second amendment doesn't explicitly say you can't own a nuclear warhead for personal amusement, but I would argue nobody's going to challenge the validity of such impositions.

[Zancarius]

"Arms" in the context used by the second amendment is AFAIK generally understood to mean "small arms" and by implication would exclude such weapons by matter of definition.

[pdonis]

> "Arms" in the context used by the second amendment is AFAIK generally understood to mean "small arms"

No, it isn't. In the time period in which the Second Amendment was passed, privately owned warships of similar capability to the ones in national navies were common enough to play a pivotal role in two wars (the American Revolution and the War of 1812).

[Zancarius]

I'm aware of privately owned warships by privateers. It is true and a good counterargument.

However, the colloquial use at the time of the phrase "arms" almost certainly referred to small arms, but would have included knives and swords (State v. Kessler 1980[1]) which are paradoxically much more heavily regulated than firearms in most states. See also "To Bear Arms"[2], by which the modifier "to bear" suggests arms that could be carried.

Perhaps one counter argument to this point was the desire by the framers to include a conscientious objector clause obviating military service for people who had specific objections, which may support the view that "arms" was anything in use by the military of the day, but the clause was stricken from the constitution for fear that the second amendment may be interpreted by later generations as a right that could not be enjoyed by the people and was intended to encompass military service.

There is also the argument that the framers opposed the idea of a standing army, which would support your viewpoint, and there is an excellent essay[3] that makes a fair and reasonable argument to this end.

My personal opinion is that this isn't clear, but it is obvious that--at a minimum--the interpretation of "to bear arms" would suggest that the 1986 ban is unconstitutional, as is the 1934 NFA tax act that required registration. I'm not convinced "to bear arms" includes other weapons that could not be "beared," such as warships, but perhaps this will clarify my thought process for you.

[1] https://law.justia.com/cases/oregon/supreme-court/1980/289-o...

[2] https://guncite.com/gc2ndmea.html

[3] https://tenthamendmentcenter.com/2016/06/30/what-does-the-wo...

[pdonis]

> the colloquial use at the time of the phrase "arms" almost certainly referred to small arms

Perhaps it did, but whether it did or not, I don't think its use in the Constitution can be reasonably described as "colloquial". Since no specific restrictions were set out by the framers, I think they intended a broad right, not one restricted to small arms. Of course my opinion is an extreme outlier given current jurisprudence on this topic, to say the least. :-)

> it is obvious that--at a minimum--the interpretation of "to bear arms" would suggest that the 1986 ban is unconstitutional, as is the 1934 NFA tax act that required registration.

I agree.

> I'm not convinced "to bear arms" includes other weapons that could not be "beared," such as warships

Currently that question is moot in a practical sense, since nobody appears to be in the market for privately owned warships. And I will cheerfully admit that if we could get to a point where it was generally accepted that people had a right to bear small arms, and the arguments were over other categories, I think that in itself would be huge progress from where we are today. If that happened, I wouldn't spend a lot of time complaining that everyone recognized my right to keep and bear an AR-15 but I was being given grief about wanting to buy an aircraft carrier or a nuclear submarine. :-)

[Zancarius]

> I don't think its use in the Constitution can be reasonably described as "colloquial"

"Arms" was used in colloquial speech and legal use at the time which converged on approximately the same definition. It's late, but there are some resources on guncite that support this argument. They're all worth reading beyond this reason, mind you, and there are plenty of arguments there that disagree with mine.

Either way, it makes for good reading should you find a topic there you're not already familiar with, and even if you are, there are some interesting twists. I don't necessarily agree with all of them.

> Of course my opinion is an extreme outlier given current jurisprudence on this topic, to say the least.

Suffice it to say that I understand where you're coming from, but in my definition a broad application of "military small arms" is probably more accurate according to my understanding of what was intended. The problem is that I don't know, nor will we ever know for certain, since the militia (rather, the people) were to act as the nascent US' standing army. I rather wish this point were discussed in civics classes, but it's not. So, the younger generations are woefully unaware of history, much to no one's surprise...

Anyway, while I also wish we could undo some of the impingement on our rights by legal challenges made in the 20th century, I'm afraid that would be an uphill battle (as you also allude) given how panicked the general public is on loosening firearms restrictions thanks in large part to the unnecessarily excessive coverage of mass shootings that seem focused primarily on stoking fear.

But, if you allowed me, I'd probably rant all night about this subject which wouldn't do either of us much good by the sounds of it, other than reaching continued agreement and probably upsetting other readers.

> since nobody appears to be in the market for privately owned warships

...admittedly a shame!

> I think that in itself would be huge progress from where we are today.

Agreed. Somewhat surprised to have this conversation on HN of all places, TBH.

> ...that everyone recognized my right to keep and bear an AR-15

I live in an open carry state and sometimes exercise that right, particularly since I live in an area sometimes subject to wild animals. But while I would love to do the same with an AR, I suspect that would probably get me called in to the local sheriff's office. Not that they would care, but I would be disappointed if someone thought it apropos to waste their time.

[ta1771]

Probably because they know it's futile, not because it shouldn't be covered under the Amendment.

[curryst]

It almost certainly shouldn't be covered. It states "being necessary to the security of a free State". What part of a nuclear warhead wielded by a militia contributes to the security of a free State? Nuclear weapons are rather unique in that they're essentially useless in a civil war. What are you going to do? Nuke the very land that you're fighting over?

Biological and nuclear weapons should not fall in the scope of the 2nd amendment. They're useless for guaranteeing your liberties against a tyrannical government, and the consequences for storing them improperly are severe.

[pdonis]

> What part of a nuclear warhead wielded by a militia contributes to the security of a free State?

Depends on who's attacking and what might deter them.

> They're useless for guaranteeing your liberties against a tyrannical government

Which is only part of "the security of a free State", not all of it. The militia was also for repelling foreign invasions.

Given our current modern world, I would agree that weapons of mass destruction (nuclear, biological, and chemical) shouldn't be available to anyone who wants them; but the correct legal way to make that happen in the U.S. would be to amend the Constitution to explicitly add that exception to the Second Amendment. As the Second Amendment is currently written, it does not admit of any exceptions. As I noted in another comment upthread, privately owned warships were significant at the time the Second Amendment was passed, and the framers of the Amendment did not exempt them from the category of "arms".

[dwaltrip]

Can you please provide links to judicial opinions or rulings that validate your interpretation of the law?

[pdonis]

The fact that legal realism--which says that the law is whatever judges say it is, even when what the judges say is patently ridiculous when compared to the actual words of the Constitution or statute--is the mainstream viewpoint in today's legal environment does not make it right.

[edoo]

If you read the federalist papers you'll note that the intention was literal, not to be reinterpreted for the times. That also makes the thousands of gun laws illegal. If you start reinterpreting the constitution that is how you go full banana republic, and everyone knows you never go full banana republic. You are supposed to change the law not reinterpret.

[jcranmer]

It's pretty funny to watch people try to justify "literal" readings of the text, since they often focus on interpreting just one piece of text and ignore the effects of the analysis on the rest of the text.

The First Amendment very clearly binds only Congress in its literal reading: it begins "Congress shall make no law..." And there is no literal text in any subsequent amendment that might cause incorporation to the states--the Fourteenth Amendment only literally incorporates the Fifth Amendment, and that by literal repetition of the text.

[bobthepanda]

Not quite; you'd have to drag this through court to get any sort of legal determination on it.

[asdf21]

And I think they would just say it was "reasonable" given the information known at the time.