2nd Amendment Absolutists, a question?

[pittspilot]

I have noted that on numerous occasions some folks on here will post the text of the 2nd Amendment as being a block to any type of firearms regulation whatsoever.

So, I have a question for those folks.

How do you justify a stance that no regulation on firearms ownership is legitimate based solely on the 2nd Amendment? Thus the 2nd Amendment bars all state and all federal regulation.

Please do not argue that firearms regulation is hopeless. That is another topic, and one where I agree that firearms regulation is mostly a pointless exercise. What I want to see is the procedural reasoning for how the 2nd Amendment bars regulation.

You see, I used to be a 2nd Amendment absolutist, and then I went to law school. I emerged as a strict constructionist, and not as a 2nd Amendment absolutist any longer. I have my reasons for that. Mainly because I came to realize that an absolutist position was indefensible.

Remember that I am a firearms owner, a co-founder of my law school's 2nd Amendment Advocates, and so there is no need to flame me.

 

[R.H. Lee]

How do you justify a stance that no regulation on firearms ownership is legitimate based solely on the 2nd Amendment?

As an attorney, you could talk rings around me. I would ask you this-are there degrees of liberty or freedom? Second, where is (federal) "regulation" constitutional. Aren't powerers not "herein enumerated" relegated to the states?

 

[pittspilot]

Well, I am not an attorney, yet.

I would also not presume that all attorneys could talk rings around you.

Your point is well taken regarding the Federal Government. The thing is that I see people use it when we talk about state regulation as well.

I also don't want to wander off on a side track, so forgive me for not addressing your degrees of freedom question. If I am missing how that would support an absolute view, please set me straight.

 

[Mulder]

You have to keep in mind that the 2nd amendment merely enumerated certain of our Rights. The Founders thought that the enumerated Rights listed in the first 10 amendments were so important, that is was important to list them, lest there be any doubt. (Interesting enough, some, like Madison argued that it was a bad idea to list any Rights since a future gov't might come to believe that so long as a Right wasn't listed in the Constitution, they could infringe upon it.

A Free man has a Right to travel. A Free man has a Right to speak his mind. A Free man has a Right to own property, bear arms (a necessity for the Right to self defense), be presumed innocent until proven guilty (and only then by a jury of his peers). A Free man also has the Right to be left alone. The list goes on and on and on.

These Rights are independent of majority vote, or independent of whatever the gov't says. The reason for this is that no man has the right to infringe upon the Rights of a Free man. Nor do 2 men, or 3 men, or 3 million men. Might does not make right, with respect to individual Liberty.

And even if a man renounces his Rights, he still has them, according to Sam Adams: "If men, through fear, fraud, or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave.†Samuel Adams"

Now, back to the relationship between the RKBA and the 2nd. Even if there wasn't a 2nd amendment, we would still have the Right to keep and bear arms. If the ruling gov't (national, state, or local) didn't recognize that, they would be totally illegitimate, according to Jefferson and the Declaration of Independence.

The 2nd merely states the obvious, which is why I try to emphasize the RKBA over the 2nd in discussions with people.

In your case, I think you've missed the forest because of the trees (no disrespect intended). Statists love using the "strict constuctionist" argument (in regards to our Rights), because it gives them another tool to infringe upon our liberties. If they can't pass a bill violating our Rights at the national level, they can simply pass one at the state or local level. (Of course, the "strict constructionist" argument goes out the window when they are trying to expand and consolidate federal power)

Imagine for instance, if they banned guns and jury trials in 500 cities in the United States. Even though guns and jury trials were still "legal" at the federal level, and in 50,000 cities and towns, effectively the Rights of all Americans would be infringed since you couldn't travel Freely without your Rights being violated. Do you really think this is what the Founders had in mind? Are we supposed to simply sell our property and relocate when some town or city illegally enacts and edict which violates our Rights? I don't think so.

Perhaps I'll give the "strict constructionist" argument some more thought once they restore federal spending and power back within it's constitutional limits. Until then, I view it as just another ploy to suck "nice guys and chumps" into going along with eviscerating what is left of the foundations of the Republic.

 

[R.H. Lee]

If the original intent of the 2nd was to keep the government in check (and I think it was), there is no good argument for restrictive "regulation" on private firearms ownership. I don't know what the framers contemplated with regard to criminals possessing arms. I suppose they envisioned criminals as second class citizens who had forfeited certain rights.

 

[stevelyn]

As I understand it, a strict constructionist and absolutist are more or less one and the same.
Please enlighten me if I'm mistaken.

 

[Mulder]

I suppose they envisioned criminals as second class citizens who had forfeited certain rights.

I believe their view was once you did your punishment, you came back into the community.

If someone committed an henous crime, they were simply put to death.

Times were much simpler back then.

 

[Wildalaska]

Pittpilot, speaking in purely constituional law terms, once the second amendment is deemed an individual right (which it has not yet been), it will be subject to the same standard of strict scrutiny as other rights...ie 1st amendment and porn

I ahve been arguing this forever here..expect flames if you hold this position...

WildgladtoseesomerationalityhereAlaska

 

[Harve Curry]

2nd Amendment Absolutist, a question?

Pittspilot,
The answer to your question is more than I can write here. I guess that getting a legal education all the powers that be will throw at a student what they want them to know or think. So you ask a helluva a good question.

I recommend reading "The Second Amendment Primer", a citizen's guidebook to the history, sources, and authorities for the Constitutional guarantee of the right to keep and bear arms.
by Les Adams, Palladium Press, 1-888- 397- 3377

Get a copy, read and study it to see how it weighs out against the information you've learned from law school. Then I'd like to know what you think. It's a good reference book to have any how.

 

[Michigander]

Obviously an incarcerated individual has lost certain rights. That right there makes the RKBA not an absolute.

The kind of restrictions of firearms should be only as applies to their use.

Obviously, going to a parade and shooting randomly into the crowd is not any individual's right and it greatly infringes upon the rights of others (to say the least). Just as endangering people by yelling "fire!" in a crowded theatre or causing harm by slandering someone, etc. With freedom and rights, there is responsibility.

But owning a fully automatic firearm, or a rifle, or a shotgun, or a handgun, in and of itself should not be against the "law". One should not have to ask permission or register or have a background check, etc. in order to purchase or own such weapons.

Convicted felons who have been relased into society? Certainly they should be allowed to own firearms (and they do anyways). They probably need them as a matter of life and death more than you or I. If the person is not fit to own a firearm because of his/her previous criminal record, then he/she should still be behind bars.

And what about the "mentally ill" or "mentally challenged"? In most of these cases, there is a person or persons who are guardians. The guardians should be responsible and decide such matters for them just as parents do for their children.

And for those "mentally ill" or "mentally challenged" who do not have a guardian? Well, any responsible person and/or gun dealer would have enough sense not to sell or give firearms to these individuals, assuming their mental state is readily apparent. Just as I would not hand my .30-06 to a friend of mine who is staggering drunk.

If I cannot tell, or others cannot tell, or even have a suspicion as to someone's mental stability, then so be it. There is always going to be someone with a few screws loose that no one notices or even would think the person is imbalanced. Until and unless they commit a crime and go to prison or other activity which lands them, unwillingly, into a phychological hospital, there's no harm, no foul. Once such an event occurs, then until they are released from prison and/or the hospital, no firearms. Again, if he/she is fit to be on their own outside the prison or hospital, then they are fit to own a firearm. If not, they should not be released.

So, why should there be registration?

 

[deanf]

The constitution is a contract by which we The People delegate to the government certain powers or authorities. The document really has no other purpose. The government has no powers other than those delegated to it by the People. The Bill of Rights is an aside. Because we have not delegated to the government any power or authority to regulate firearms, they may not. Thus the right to own guns reigns.

Specifically to the wording of the amendment: Note that nowhere in the amendment is the government delegated any power or authority to do anything. If you agree with the social contract premise as explained above, you must agree that the government may not regulate guns, regardless of the amendment.

What I want to see is the procedural reasoning for how the 2nd Amendment bars regulation.

It doesn't. It doesn't need to (see above.)

 

[Michigander]

How do you justify a stance that no regulation on firearms ownership is legitimate based solely on the 2nd Amendment? Thus the 2nd Amendment bars all state and all federal regulation.

OK, more to the point.

Infringement is a hinderance, an impedement, a frustration.

All regulations are infringements by definition.

If any regulation is allowed, then all regulation is allowed. It can only be one or the other. It cannot be both. By allowing the government the power to regulate any, they have the power to regulate all.

Let's say the SCOTUS decides that this regulation or that regulation is not unconstitutional because we all still have the right to keep and bear arms. So what that would mean is that the government could basically regulate or restrict all firearms except .22 rifles. Hey, you still have the right to keep and bear arms, it just so happens that legally you can only a use a .22 rifle. The right still exists, right?

But the right has been INFRINGED!!! Amendment II does not state, "the people will forevermore have the right to keep and bear arms." NO. It states, "...SHALL NOT BE INFRINGED" specifically!

Well, as far as Amendment II goes, that's how I see it.

Of course I agree with others here at THR, that the RKBA exists irregardless of the Declaration of Independence, the Constitution of the United States of America or the Bill of Rights.

Alright, I'm done rambling.

 

[geekWithA.45]

I'll defer to Randy Barnett's explanations, found in "The Presumption of Liberty, Restoring the Lost Constitution" for this one, which goes more or less like this:


"To regulate" means "to make regular". For example, the form of a last will and testament is regulated, in that if you wish to make a will, it must be in a certain regular form.

"To regulate" does not mean, "to prohibit with a decree bearing the word regulation in it's title", nor may such regulation create undue burden, or, because of the special case of the word "infringe" cause any obstruction to firearms ownership at all.


One _might_ (and I'm not) make a plausible argument that registration might be Constitutional, but only if safeguards were put in to prevent such registration from ever being used as source material for confiscation, obstruction, or harassment. Given the history of registration, and the general track record of such assurances, (ie, SSN "never to be used as identifier") it is unlikely that such assurances would ever be accepted as plausible.

One could also argue that the firearms themselves, their form and function be regulated (ie, neutered) such that the logic would be, for example "if you want a firearm, it has to be a single shot break action .22lr of no less than 8 feet in length". This approach would not be acceptable either, as 2A has as it's very first clause it's purpose: To enable the people to preserve their freedom and security, an end not plausibly attained with militarilly useless arms.


But for the 9th and 10th amendments, it might also be possible to assert something like, "If you want to be armed, your guns must use a modern military caliber, ie .308, .223, .50bmg, 9mm, and .45acp, thus to make regular issues surrounding interoperability of ammunition and logistics, as is consistent with the Miller decision regarding 2A protection for militarilly useful arms. Fortunately, this argument would not hold water, as it would run afoul of the 9th & 10th, which work together to protect things like sports shooting and duck hunting.

 

[dischord]

Pittspilot,

To answer your question, we need to know your definition of absolutist. Frankly, true absolutists are very rare if they exist at all (see Michigander's point about disarming incarcerated people).

In your opinion, what falls on the wrong side of absolutism? For example, do you consider oposition to background checks overly absolutist?

As for restrictions against state and local laws, as you know, that would require incorporation into the 14th, which hasn't occured yet.

 

[another okie]

All of you are discussing this in a very historically-blind way.
Yes, the 2nd says the right shall not be infringed.

But what is the right? What is protected by this right? What rights does the phrase "the right of the people to keep and bear arms" include? All of you are assuming the right mentioned in the 2nd was unlimited.

If you read the words of the founders and of British and American commentators on law, it is clear that they saw the right of the people as consisting of the right of law-abiding adults to own weapons appropriate to the defense of themselves and their community. That meant swords, knives, axes, rifles, shotguns, and pistols. Cannons were generally (though not always) owned by the community and stored in a common arsenal. That's what started the revolution, when the Brits tried to take the mlitia's cannon.

"Law-abiding adults" means that criminals lost their right. Children didn't have such a right until maturity.

Now that doesn't mean it settles the question as far as we are concerned today, because many folks couldn't care less what the founders intended or thought, but it's a place to start a discussion.

And that's why a "strict constructionist" is not necessarily the same as an "absolutist." You can strictly construe the right and see that it was subject to some limitations in 1789. It was not an absolute right then or now.

 

[dischord]

And that's why a "strict constructionist" is not necessarily the same as an "absolutist."

True, but we still need to know what pittspilot means by absolutist before we can address his question.

 

[cordex]

You've studied Constitutional law, right?
Would a State be Constitutionally allowed to drag people out in the street and summarily execute them? Can a given state form a religion and compell citizens of that state to follow it? Can a state perform random and warrantless searches and seizures ... just so long as no Federal police agencies are involved?

 

[Rebeldon]

What regulation on free speech or religion would you agree with?

Sure, there are some regulations of free speech on the public airways. My guns are not public.

Religion is regulated only in the sense that you can't do thinks like sacrifice your children to the sun god.

It seems people fight tooth and nail, and rightly so, to keep from having their First Amendment Rights infringed, but are careless regarding the Second Amendment.

By the way, I've never heard of "absolutist" in regards to the Second Amendment. I'm not sure that a strict construction of law, in the case of the Second Amendment would necessarily result in an "absolutist" interpretation. If we go by original intent, I believe that the Second Amendment is primarily a matter of security, nationally and personally. If you have the right to security, you necessarily have the right to the means of that security, thus the right to keep and bear arms. Any regulation which infringes upon that function infringes upon that right. For instance, a law requiring a gun to be locked away and unloaded makes your gun usely for security, therefore it infringes upon your right to keep and BEAR arms. If there was such a law that required all firearms to have a built-in safety, it would not infringe upon your right to keep and bear arms--althought I would personally be against such a law, because I don't like government acting like a nanny.

 

[Aguila Blanca]

You see, I used to be a 2nd Amendment absolutist, and then I went to law school. I emerged as a strict constructionist, and not as a 2nd Amendment absolutist any longer. I have my reasons for that. Mainly because I came to realize that an absolutist position was indefensible.

Like others, I don't understand a distinction between a "strict constructionist" and an "absolutist." The Constitution and the Bill or Rights say what they say. If you are a strict constructionist, you deal in what they say ... absolutely. Otherwise, you "interpret" (bend, fold, spindle, mutilate) to fit the times, the weather, and the current political climate.

As the tee shirts and bumper stickers say, "What part of 'shall not be infringed' don't you understand?"

Of course, to completely understand the true meaning, we need to find a late 16th century dictionary and research what the word "infringe" meant to the founding fathers when they wrote it. My understanding is that any law, ordinance or regulation which in any way restricts or limits my right to keep and bear arms of my choosing is an infringement and, therefore, unconstitutional.

You have to be careful in law school, mate. Most professors of law are either unabashed liberals or closet liberals, and they aren't likely to teach you a view of the Constitution that doesn't follow and support their liberal agenda.

See also the post above by Michigander. He said it before me, and better.

 

[pittspilot]

Thanks for all the replies. I will try to rely to each, and deal with some assumptions that some people have made. I also cannot deal with all the points, sorry.

"You have to keep in mind that the 2nd amendment merely enumerated certain of our Rights. The Founders thought that the enumerated Rights listed in the first 10 amendments were so important, that is was important to list them, lest there be any doubt. (Interesting enough, some, like Madison argued that it was a bad idea to list any Rights since a future gov't might come to believe that so long as a Right wasn't listed in the Constitution, they could infringe upon it."

I can agree with that, however the rest of your statement would take to long to reply to, and would drag me off topic. I am studying for the bar now, and playing with this during breaks, so please excuse me.

"If the original intent of the 2nd was to keep the government in check (and I think it was), there is no good argument for restrictive "regulation" on private firearms ownership. I don't know what the framers contemplated with regard to criminals possessing arms. I suppose they envisioned criminals as second class citizens who had forfeited certain rights."

But is there an argument for any type of regulation? Not merely restrictive.

"As I understand it, a strict constructionist and absolutist are more or less one and the same.
Please enlighten me if I'm mistaken.

I find that I am an non historical strict constructionist, or a textualist. Basically, I believe in the four corners doctrine, and believe that the Document does not need outside evidence for interpretation.

Absolutists believe that the rights in the Constitution are absolute. Thus free speech cannot be regulated in any form. Any speech is acceptable regardless of content. Firearms ownership is universal regardless of criminal history, mental defect, or lack of training. And so on.

However, just because I construe the document strictly does not mean that I consider the right therein to be absolute.

I also recognize that there are problems with textualism, as there is with anything.

"Pittpilot, speaking in purely constituional law terms, once the second amendment is deemed an individual right (which it has not yet been), it will be subject to the same standard of strict scrutiny as other rights...ie 1st amendment and porn

I ahve been arguing this forever here..expect flames if you hold this position..."

We shall see.

"Specifically to the wording of the amendment: Note that nowhere in the amendment is the government delegated any power or authority to do anything. If you agree with the social contract premise as explained above, you must agree that the government may not regulate guns, regardless of the amendment."

True enough for the federal government, but what about the states?

"If any regulation is allowed, then all regulation is allowed. It can only be one or the other. It cannot be both. By allowing the government the power to regulate any, they have the power to regulate all."

Invalid slippery slope argument. You deny that there can be a middle ground. Some regulation. This is true everywhere you look.

"I'll defer to Randy Barnett's explanations, found in "The Presumption of Liberty, Restoring the Lost Constitution" for this one, which goes more or less like this:"

I think that Randy Barnett's explanation are probably the leading authority on legal analysis of the 2nd. I agree with about 90% of what he says.

"In your opinion, what falls on the wrong side of absolutism? For example, do you consider oposition to background checks overly absolutist?"

For instance, those that choose to carry concealed without a permit, and state that they believe that the 2nd Amendment is their permit. As I stated once before, please no flames.

"As for restrictions against state and local laws, as you know, that would require incorporation into the 14th, which hasn't occured yet."

True enough.

"You have to be careful in law school, mate. Most professors of law are either unabashed liberals or closet liberals, and they aren't likely to teach you a view of the Constitution that doesn't follow and support their liberal agenda."

[SARCASM] You don't say? [/SARCASM]

Sorry, but you made a couple of assumptions about me right there and I felt the need to disabuse you of them. One, I am not young and naive. I have been in Liberal hell for 3 years. 8 if you count my undergraduate. If you think that I have obtained my stance from my professors then you are mistaken. However, having been faced with highly educated and intelligent liberal professors forces one to have to ensure that your counter arguments are rock solid. The 2nd Amendment absolutist argument (That no regulation is valid by either the states or the federal government) began to fail on its merits when utilized against these teachers. I was able to honestly admit that. However, this did not mean that I considered the right to be armed to be an invalid one.

Thus I have moved to a different argument.

I just want to see how people that argue that the 2nd Amendment is a complete bar to any regulation, whatsoever, base that position.

 

[ravinraven]

random thoughts

At the time the 2A was written firearms consisted of black powder muzzle loaded cannons and muskets. They had been around for so long in nearly unchanged form that it might have been assumed that nothing more advanced would ever exist. Breech loading, repeater, six-shooter, even smokeless powder were yet to come. Although the founders never considered such a thing as a machine gun, we still have the right to possess such.

The first amendment mentioned speech and press and says nothing about radio, television or CNN yet no one assumes that we have no right of expression by electronic means.

Why do some insist that we have no right to firearms more modern that the musket?

Why can't I own a howitzer? The only thing restricting my ownership of a howitzer should be the same force restricting me from owning a Roll Royce.

I could have an H-Bomb in the garage and the neighbors would be safe because I have no desire to smoke anyone.

Some other jerk might want to kill with a gun, but why should that restrict me from having one?

Well, before I bore you all with idiototic rhetorical questions, I'll bore you with the reason why. Power grab. Any opportunity to restrict or infringe the rights of honest people will never be by-passed by the power grabbers whose political ancestors are some of the beauties we all think of: Hitler, Stalin, Lenin and soon to be dead ancestor, Saddam.

The Washington State land grab "for the common good" is a part of the scheme. Ever increasing income taxes is part of the scheme. Liberty naturally dims if we don't pay attention and keep it shining. Ike said that the price of freedom is eternal vigilance. Be vigilant.

rr

 

[dischord]

pittspilot: For instance, those that choose to carry concealed without a permit, and state that they believe that the 2nd Amendment is their permit. As I stated once before, please no flames.

OK, it seems that your problem is with people who say "screw the system" rather than with people who believe they shouldn't have to have CCW permits -- and I'm not sure that making this a narrow 2nd. Amt question makes sense (notwithstanding THR being a gun board).

I suspect your problem is with anarchists not 2nd Amt. absolutists (and I'd agree). Absolutists do not necessarily disobey the law -- they simply hate it.

 

[Viking6]

I saw this in an oped piece in JWR this morning.

In the words of Supreme Court Justice Robert Jackson from 1943 said "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials. One's right to life, liberty and property, to free speech, free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcomes of no elections."

I think this covers it.

 

[Michigander]

quote:
--------------------------------------------------------------------------------
"If any regulation is allowed, then all regulation is allowed. It can only be one or the other. It cannot be both. By allowing the government the power to regulate any, they have the power to regulate all."
--------------------------------------------------------------------------------

Invalid slippery slope argument. You deny that there can be a middle ground. Some regulation. This is true everywhere you look.

I did not say that the government necessarily would regulate all firearms. I said that the granting of the power to regulate any is defacto the same as granting of the power to regulate all.

Reference the re-interpretation of the "commerce clause" and what floodgates that opened. Interesting "middle ground" we have now, isn't it?

 

[Aguila Blanca]

Absolutists believe that the rights in the Constitution are absolute. Thus free speech cannot be regulated in any form. Any speech is acceptable regardless of content. Firearms ownership is universal regardless of criminal history, mental defect, or lack of training. And so on.

However, just because I construe the document strictly does not mean that I consider the right therein to be absolute.

No offense, but whether or not you consider the rights enumerated in the B.O.R. to be absolute is irrelevent. The guys who WROTE the B.O.R. considered those rights to be natural, inalienable (is that not sort of like "absolute"?), and God-given. What/who is more absolute than the Supreme Being?

The B.O.R. simply enumerates and codifies some of the rights the Founders recognized as being inherent to The People. As already noted by several, the Federal government has only those powers specifically granted to it by the Constitution. The Constitution does not grant to the government any right, authority, or duty to regulate, restrict, control, or otherwise "infringe" on personal ownership or carry of weapons ... any sort of weapons, not just firearms.