7.62FullMetalJacket
Member
I do not worry about the smart ones. My glass is half empty in this case.
Second Amendment discussion (kinda long)
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BowStreetRunner
Member
one of my profs just had a lecture on this very subject and in preparation we had to read US v. Emerson and a friend of the court brief by some anti-profs and historians involved in the same case
i would recommend any 2A activist read Emerson, its that 1999 5th circuit case that said that indivduals have a 2A right to keep and bear arms
i found it to be very readable and it makes a lot of sense......the anti's paper was interesting as well.....they began by saying that the 2A is an allocation of military power........which is true, but then they continued to blah blah about how the militia this and that and got to theit point that their is a collective right not and individual one
anyways, i think they got one thing right, the 2A is an allocation of military power, or more appropriately, simply and allocation of power, and the founders wanted to allocate that power to the people whose right to arms should not be infringed
my prof was very balanced in his lecture and i was impressed but i learned that those who like gun control dont always have to rely on history to "prove" that the 2A gurantees a collective right
they just point to the 20th century, where some courts have said that it is a collective right......they say "thats the practice"
and so it becomes "law"
they must be reminded about cases like Emerson, because its not the "law" for sure yet
anyways, you can find many more individual rights quotes from the founders than you can collective rights quotes (stay away from hamiltons though, the socialist apparantly wasnt on our side)
and you can tell the prof that the 2A is lumped in with Amendments 1-9, which are all individual rights
and if you havent yet explain the contemporary meaning of "well regulated"
BSR
i would recommend any 2A activist read Emerson, its that 1999 5th circuit case that said that indivduals have a 2A right to keep and bear arms
i found it to be very readable and it makes a lot of sense......the anti's paper was interesting as well.....they began by saying that the 2A is an allocation of military power........which is true, but then they continued to blah blah about how the militia this and that and got to theit point that their is a collective right not and individual one
anyways, i think they got one thing right, the 2A is an allocation of military power, or more appropriately, simply and allocation of power, and the founders wanted to allocate that power to the people whose right to arms should not be infringed
my prof was very balanced in his lecture and i was impressed but i learned that those who like gun control dont always have to rely on history to "prove" that the 2A gurantees a collective right
they just point to the 20th century, where some courts have said that it is a collective right......they say "thats the practice"
and so it becomes "law"
they must be reminded about cases like Emerson, because its not the "law" for sure yet
anyways, you can find many more individual rights quotes from the founders than you can collective rights quotes (stay away from hamiltons though, the socialist apparantly wasnt on our side)
and you can tell the prof that the 2A is lumped in with Amendments 1-9, which are all individual rights
and if you havent yet explain the contemporary meaning of "well regulated"
BSR
Graystar
Member
This is true. Judicial review was considered a part of judicial power during the time the Constitution was written, and still is.
A
AnklePocket
Guest
Reference to "people" in the Second Amendment is the same "people" as in the rest of our Bill of Rights and no one seems to argue who the "people" are as mentioned in the 9 other Amendments beginning with the First one.
Our Founding Fathers were extremely carefull in their use of words and "the people" would be clearly and unmistakingly "us". That would be you and I.
"...shall not be infringed." is my personal favorite.
For some reason I'm starting to melt down again. [REPEAT SEVERAL TIMES] - "I must move. I must move. I must move...".
Our Founding Fathers were extremely carefull in their use of words and "the people" would be clearly and unmistakingly "us". That would be you and I.
"...shall not be infringed." is my personal favorite.
For some reason I'm starting to melt down again. [REPEAT SEVERAL TIMES] - "I must move. I must move. I must move...".
Jim March
Member
Frohickey:
What I meant was, you really are correct, but going into that will be a long and winding side-route through "mental territory" that the professor probably isn't ready to deal with yet, and would probably de-rail the conversation. Worst case, it could cause the prof to label the student a "tinfoil hat type" (unfairly of course).
What I meant was, you really are correct, but going into that will be a long and winding side-route through "mental territory" that the professor probably isn't ready to deal with yet, and would probably de-rail the conversation. Worst case, it could cause the prof to label the student a "tinfoil hat type" (unfairly of course).
Graystar, can you cite something showing that judicial review was accepted as part of the judicial power in 1789? Your assertion had two parts, but you only proved that the Constitution granted judicial power to the judiciary, not that the judicial power encompassed judicial review. I think that view is highly suspect because there weren't really any similar constitutional architectures in place in 1789. Judicial review depends on the existence of a higher law - a constitution - to judge the law against.
I have a real problem with question 1. Websters (incorrectly, IMO) defines democratic as essentially an adjective form of democracy, and democracy as a government run by direct vote or elected representatives. So anyone using Webster's definition has to answer True.
Furthermore, even if "democracy" is defined properly, and not taken to include representative forms of government, there is some question over whether "democratic" is merely the adjective form of "democracy", or whether it has fewer requirements. If "democratic" was taken strictly to mean "having the qualities of a democracy", there would be no point to the word. Only a democracy could be democratic, and that adjective would then be redundant. So it seems that "democratic" isn't a binary quality, and I think that there is enough of a democratic process (democratic election of representatives, for instance, and democratic selection of the electoral college) to justify labelling the U.S. "democratic" even though it is not a "democracy".
And then, Question 7 is highly disputed. Protect rights against what? Federal government interference? Foreign government interference? I think it provides theoretical positive protection against both. Obviously it does not protect rights from State or individual interference, but the question did not specify. The question is bad and IMO there is no correct answer.
About Question 9, I think people are too concerned about semantics.
1) IF "rights" are inherent, the 2nd amendment doesn't establish a right.
2) IF "rights" are not inherent and only exist when permitted by the government, the 2nd amendment still doesn't establish a right because the Constitution is limited and provides no ability to ban firearms from the people.
3) IF "rights" must be positively recognized/protected by the government in order to exist, the 2nd amendment does establish such a right, at least with respect to the Federal government.
This is all just semantics. I don't like questions that try to spring semantic traps, and I tend to answer them randomly because any position is defensible.
Arguing that the question "2A guarantees the RKBA" is true or false based on different definitions of "rights" merely fragments the community and doesn't really accomplish anything useful anyway.
I have a real problem with question 1. Websters (incorrectly, IMO) defines democratic as essentially an adjective form of democracy, and democracy as a government run by direct vote or elected representatives. So anyone using Webster's definition has to answer True.
Furthermore, even if "democracy" is defined properly, and not taken to include representative forms of government, there is some question over whether "democratic" is merely the adjective form of "democracy", or whether it has fewer requirements. If "democratic" was taken strictly to mean "having the qualities of a democracy", there would be no point to the word. Only a democracy could be democratic, and that adjective would then be redundant. So it seems that "democratic" isn't a binary quality, and I think that there is enough of a democratic process (democratic election of representatives, for instance, and democratic selection of the electoral college) to justify labelling the U.S. "democratic" even though it is not a "democracy".
And then, Question 7 is highly disputed. Protect rights against what? Federal government interference? Foreign government interference? I think it provides theoretical positive protection against both. Obviously it does not protect rights from State or individual interference, but the question did not specify. The question is bad and IMO there is no correct answer.
About Question 9, I think people are too concerned about semantics.
1) IF "rights" are inherent, the 2nd amendment doesn't establish a right.
2) IF "rights" are not inherent and only exist when permitted by the government, the 2nd amendment still doesn't establish a right because the Constitution is limited and provides no ability to ban firearms from the people.
3) IF "rights" must be positively recognized/protected by the government in order to exist, the 2nd amendment does establish such a right, at least with respect to the Federal government.
This is all just semantics. I don't like questions that try to spring semantic traps, and I tend to answer them randomly because any position is defensible.
Arguing that the question "2A guarantees the RKBA" is true or false based on different definitions of "rights" merely fragments the community and doesn't really accomplish anything useful anyway.
Graystar
Member
Mulliga
Member
There are two commas - here is the original 12 amendments given to the states for ratification. Obviously, 10 of the 12 were ratified.
http://www.law.emory.edu/FEDERAL/conpict.html
Ultimately, it doesn't matter what the FF meant, quite frankly. They were human, too. The Constitution acknowledged and accepted slavery until after the Civil War - does that mean slavery was justified BEFORE the Civil War? Of course not, but that's the reality of politics. I just hope RKBA people don't have to go feed the hogs to get the antis to realize gun prohibition is wrong.
jimpeel
Member
ump45
Tell him this: If he does not subscribe to the standard model (individual right) then he must subscribe to the collective rights model or the sophisticated collective rights model. If so, then simply tell him the following:
The collective rights models, pursuant to Article I, Section 10, para 3 of the United States Constitution, form a circular argument.
Article I, Section 10, para 3 states:
"No State shall, without the consent of Congress, ... keep troops, or Ships of War in time of peace, ..."
ie: The States have to have the permission from Congress to do what is otherwise prohibited to them; but, under the collective right interpretation, the Second Amendment prevents the Congress from disarming the States militias which need their permission to be so equipped in the first place. (start over from beginning of sentence and repeat to infinity)
The second thing to ask him is this:
If the "people" in the Second Amendment actually refers to the states, why then does the Tenth Amendment state "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."
Then explain that, by the logic of the collective rights models, the Tenth Amendment should read "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 States."
The third thing to ask him is this: How many times does the word "right" or "rights" appear in the main body of the Constitution?" The answer, of course, is ONCE.
Article I, Section 8, paragraph 8 states: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
Authors and Inventors are people.
The fourth thing to ask him is this: How many times do the words "power" or "powers" appear in the main body of the Constitution?
The answer is sixteen. In each of those sixteen instances, they reference the Congress, the Executive, the Judiciary, or the States.
The fifth thing to ask him is this: If the Founders were so exacting in their authorship of the founding document to separate the people and the government; why would they throw aside that exacting authorship when they penned the amendments to that same document?
The sixth thing to ask him is this: If the Separation Clause was determined by the USSC using a single letter written by Thomas Jefferson to the Danbury Baptist Church; how does he reconcile the dozens of letters and writings of the Founders, including Jefferson, which unequivocally declare the Second Amendment to be an individual right?
Good luck. Hope this helps.
Tell him this: If he does not subscribe to the standard model (individual right) then he must subscribe to the collective rights model or the sophisticated collective rights model. If so, then simply tell him the following:
The collective rights models, pursuant to Article I, Section 10, para 3 of the United States Constitution, form a circular argument.
Article I, Section 10, para 3 states:
"No State shall, without the consent of Congress, ... keep troops, or Ships of War in time of peace, ..."
ie: The States have to have the permission from Congress to do what is otherwise prohibited to them; but, under the collective right interpretation, the Second Amendment prevents the Congress from disarming the States militias which need their permission to be so equipped in the first place. (start over from beginning of sentence and repeat to infinity)
The second thing to ask him is this:
If the "people" in the Second Amendment actually refers to the states, why then does the Tenth Amendment state "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."
Then explain that, by the logic of the collective rights models, the Tenth Amendment should read "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 States."
The third thing to ask him is this: How many times does the word "right" or "rights" appear in the main body of the Constitution?" The answer, of course, is ONCE.
Article I, Section 8, paragraph 8 states: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
Authors and Inventors are people.
The fourth thing to ask him is this: How many times do the words "power" or "powers" appear in the main body of the Constitution?
The answer is sixteen. In each of those sixteen instances, they reference the Congress, the Executive, the Judiciary, or the States.
The fifth thing to ask him is this: If the Founders were so exacting in their authorship of the founding document to separate the people and the government; why would they throw aside that exacting authorship when they penned the amendments to that same document?
The sixth thing to ask him is this: If the Separation Clause was determined by the USSC using a single letter written by Thomas Jefferson to the Danbury Baptist Church; how does he reconcile the dozens of letters and writings of the Founders, including Jefferson, which unequivocally declare the Second Amendment to be an individual right?
Good luck. Hope this helps.
Frohickey
Member
So, is it 3 commas or 1 comma?
Anyone have access to a jpeg of the original BoR?
Anyone have access to a jpeg of the original BoR?
jimpeel
Member
High resolution downloads available here:
http://www.archives.gov/national_archives_experience/charters_downloads.html
http://www.archives.gov/national_archives_experience/charters_downloads.html
CatsDieNow
Member
Oleg Volk
Moderator Emeritus
That should be "median person"
Waitone
Member
Google up Stephen Halbrook, a second amendment attorney of some repute. He's been fishing in the pond you're fishing in for a long time.
freewheeling
Member
Alright, it appears that this may be the right thread in which to ask what is to me a rather vexing question about the Second Amendment. And I should preface by saying that I am, myself, a political scientist at a university, though I've only recently become interested in this issue. I, frankly, find the legalistic language used both in the defense of and in the attempts to undermine the Amendment's intent to be witheringly complex and heading in a direction that's less than intuitive.
I have no problem with interpreting the Amendent as preventing the infringement of a right of private persons to bear arms, and I also see no problem with the militia clause. No matter how one interprets the sentence the founders clearly saw a link between maintaining a "well ordered" militia and the skills associated with that militia, which could be cultivated reliably only by allowing young men (and I think the founders would now agree, women) to develop marksmanship and hunting skills, etc. And the fact that the US now maintains a massive standing army doesn't really change that. One could explain the situation to the Founders, and there'd be a light of recognition in their eyes, and a nod.
I also don't see how one can possibly argue that a group of people armed with the kinds of weapons that seem reasonable to own privately could possibly hope to prevail against even a relatively anemic modern standing army, but I do agree with the symbolism that private arms represent, and how that alters the relationship between the individual and the state. I think I can defend that with some passion and eloquence.
But the problem is this: Where does one draw the line regarding what constitutes "arms?" If your argument is that there *is no* line, and that one has to interpret the Second Amendment to mean an unrestricted right to bear any sort of arms, then the whole thing becomes indefensible and ridiculous. And all the legalese in the world doesn't make it any less ridiculous. How about nukes, chemical weapons, nerve agents, bioweapons?
Now, I've discussed this with a friend of mine who served in Special Forces and his response was that the Founders used the term "arms" that according to the conventions of the time specifically excluded cannon. His proposal was that, at the very least, one could draw the line at cannon, and I frankly buy that argument. It at least resolves the problem of restricting an otherwise absolute right, and makes the interpretation as a "right" defensible and non-ridiculous. I don't feel foolish defending such a right. Not at all.
Now another person who is pro-Second Amendment (as is my friend, and as I am I think) has pointed out that private persons owned cannon, and even owned private warships with cannon, at the time of the ratification of the Bill of Rights, and he claims that this invalidates my friend's argument. Having thought that over, however, I find it not that devastating to the argument. People may have owned cannon legally even though they had no Constitutionally guaranteed right to do so. There was simply no law against it. There was no guaranteed right to smoke opium, but people did it legally for a long time.
So I'm really trying to get at where that line is really drawn. Now, assuming for the moment that the founders did draw the line at cannon, what might they have to say about fully automatic weapons? Strictly speaking the founders were talking about muzzle-loading muskets and pistols, so grounding the interpretation on the strict meaning of "arms" at the time is a stretch. I can see how one could argue that they'd reasonably foresee technological advancements in what they had in mind as "privately owned arms," and that these would include rifled barrels, breech loading, repeating and ultimately semi-automatic weopons.
But in order to make this conjecture more than simply a presumption one could run through a sort of thought experiment. What I'm suggesting is simply, go through the exercise of explaining to the founders how and why you've interpreted their Amendment to encompass the possession of any of the technical advancements listed above, and also including fully automatic weapons. I think one could easily accomplish this sort of thing with the First Amendment, and after a little update about modern media they'd agree that the principle applies to TV, telephones, fax, email, etc. I am not, however, fully convinced that the Founders would concur about the application of their words in the Second Amendment to encompass the private ownership of fully automatic weapons, but I can be convinced otherwise. My sense is that they'd take one look at what a moder automatic weapon can do and think "cannon."
And if you think the claim to draw the line at cannon is false, why do you think that and what would you propose in its stead, if anything? Because I assure you the concept of an unmitigated and unrestricted right is a political nonstarter. And if you think it's a transcendant right of some sort then you're going to have to call on transcendant beings, rather than mere humans, to defend it.
And if you know any of those, what's her name and address?
I have no problem with interpreting the Amendent as preventing the infringement of a right of private persons to bear arms, and I also see no problem with the militia clause. No matter how one interprets the sentence the founders clearly saw a link between maintaining a "well ordered" militia and the skills associated with that militia, which could be cultivated reliably only by allowing young men (and I think the founders would now agree, women) to develop marksmanship and hunting skills, etc. And the fact that the US now maintains a massive standing army doesn't really change that. One could explain the situation to the Founders, and there'd be a light of recognition in their eyes, and a nod.
I also don't see how one can possibly argue that a group of people armed with the kinds of weapons that seem reasonable to own privately could possibly hope to prevail against even a relatively anemic modern standing army, but I do agree with the symbolism that private arms represent, and how that alters the relationship between the individual and the state. I think I can defend that with some passion and eloquence.
But the problem is this: Where does one draw the line regarding what constitutes "arms?" If your argument is that there *is no* line, and that one has to interpret the Second Amendment to mean an unrestricted right to bear any sort of arms, then the whole thing becomes indefensible and ridiculous. And all the legalese in the world doesn't make it any less ridiculous. How about nukes, chemical weapons, nerve agents, bioweapons?
Now, I've discussed this with a friend of mine who served in Special Forces and his response was that the Founders used the term "arms" that according to the conventions of the time specifically excluded cannon. His proposal was that, at the very least, one could draw the line at cannon, and I frankly buy that argument. It at least resolves the problem of restricting an otherwise absolute right, and makes the interpretation as a "right" defensible and non-ridiculous. I don't feel foolish defending such a right. Not at all.
Now another person who is pro-Second Amendment (as is my friend, and as I am I think) has pointed out that private persons owned cannon, and even owned private warships with cannon, at the time of the ratification of the Bill of Rights, and he claims that this invalidates my friend's argument. Having thought that over, however, I find it not that devastating to the argument. People may have owned cannon legally even though they had no Constitutionally guaranteed right to do so. There was simply no law against it. There was no guaranteed right to smoke opium, but people did it legally for a long time.
So I'm really trying to get at where that line is really drawn. Now, assuming for the moment that the founders did draw the line at cannon, what might they have to say about fully automatic weapons? Strictly speaking the founders were talking about muzzle-loading muskets and pistols, so grounding the interpretation on the strict meaning of "arms" at the time is a stretch. I can see how one could argue that they'd reasonably foresee technological advancements in what they had in mind as "privately owned arms," and that these would include rifled barrels, breech loading, repeating and ultimately semi-automatic weopons.
But in order to make this conjecture more than simply a presumption one could run through a sort of thought experiment. What I'm suggesting is simply, go through the exercise of explaining to the founders how and why you've interpreted their Amendment to encompass the possession of any of the technical advancements listed above, and also including fully automatic weapons. I think one could easily accomplish this sort of thing with the First Amendment, and after a little update about modern media they'd agree that the principle applies to TV, telephones, fax, email, etc. I am not, however, fully convinced that the Founders would concur about the application of their words in the Second Amendment to encompass the private ownership of fully automatic weapons, but I can be convinced otherwise. My sense is that they'd take one look at what a moder automatic weapon can do and think "cannon."
And if you think the claim to draw the line at cannon is false, why do you think that and what would you propose in its stead, if anything? Because I assure you the concept of an unmitigated and unrestricted right is a political nonstarter. And if you think it's a transcendant right of some sort then you're going to have to call on transcendant beings, rather than mere humans, to defend it.
And if you know any of those, what's her name and address?
I think there's a basic error in confounding having great weaponry with being armed. Being armed is a state of mind, but weaponry is just having hardware.
As for whether civilian weapons can make a difference in a modern war, remember that even the cheap little "Liberator" .45s made a difference in WWII. Dropped behind enemy lines, with just a single shot these little weapons enabled otherwise-unarmed folks to get their hands on real weaponry.
Are there any circumstances in which it is right for a group of people to do something which no individual member of that group may do? Why or why not?
pax
The humanity of men and women is inversely proportional to their numbers. -- Aldous Huxley
freewheeling,
Private ownership of cannon was common during the time our nation was founded. The constitution even authorizes congress to issue letters of Marque and Reprisal to individuals to wage war for the nation. I would think that that presumes those individuals would be permitted to legally own whatever tools they needed to do that.
I suggest you study history. Even the largest standing army can't be everywhere at once. You don't need stealth fighters or nuclear submarines to overthrow a government. All you need is about 1/3 of the popluation behind you and a willingness to do it. The right to keep and bear arms is much more then a symbolic guarantee of freedom. No you couldn't win in a set piece battle, but if you understand how the enemy fights and use tactics that neutralize the standing army's advantages and you will win. I have 29 years in the Army. All of it in combat arms....Let me assure you it's possible.
There is no line. The people are permitted the same weapons that the state has. The restriction is cost. Entire nations have failed to produce their own nuclear weapons. What makes you think it would be so easy for a private citizen to aquire one. Anyone can make crude chemical and biological weapons at home. Ask your former Special Forces friend about that. Do you really think that the fact it's currently illegal keeps people from making them?
Look back to my earlier comment about Letters of Marque and Reprisal. The Constitution certainly envisioned private citizens possessing the most effective arms of the day.
And as I said, cannon we commonly owned by private citizens and businesses. The founders would have looked at every technological advancement in arms and accepted it the same way you say they would accept electronic media. They had just finished a hard fight for their freedom. A fight that they won in part because they were able to have the same firepower the British Army did. The revolution wasn't won by Kentucky long rifles and indian tactics, it was won by the Continental Army with smoothbore muskets and cannon, just like the British Army used. The idea of the power to use force to keep their freedom wasn't a quaint notion to our founders. They did it. Many lost all they had, family members and lived the entire revolution as criminals with prices on their heads. They were not squeamish men who would look at an M240 and see something that was too dangerous for the citizens to possess. They would say if it's available to the government, the people should also have it.
Why is that? Because we've raised a generation to fear inanimate objects? A right cannot have limits.
I ask you, if you start putting limits on a right, where does it stop? The Bill of Rights doesn't give us any rights. It acknowledges that all men have those rights and it limits the government. As many here are fond of saying; What part of Shall not be infringed is hard to understand?
Jeff
Private ownership of cannon was common during the time our nation was founded. The constitution even authorizes congress to issue letters of Marque and Reprisal to individuals to wage war for the nation. I would think that that presumes those individuals would be permitted to legally own whatever tools they needed to do that.
I suggest you study history. Even the largest standing army can't be everywhere at once. You don't need stealth fighters or nuclear submarines to overthrow a government. All you need is about 1/3 of the popluation behind you and a willingness to do it. The right to keep and bear arms is much more then a symbolic guarantee of freedom. No you couldn't win in a set piece battle, but if you understand how the enemy fights and use tactics that neutralize the standing army's advantages and you will win. I have 29 years in the Army. All of it in combat arms....Let me assure you it's possible.
There is no line. The people are permitted the same weapons that the state has. The restriction is cost. Entire nations have failed to produce their own nuclear weapons. What makes you think it would be so easy for a private citizen to aquire one. Anyone can make crude chemical and biological weapons at home. Ask your former Special Forces friend about that. Do you really think that the fact it's currently illegal keeps people from making them?
Look back to my earlier comment about Letters of Marque and Reprisal. The Constitution certainly envisioned private citizens possessing the most effective arms of the day.
And as I said, cannon we commonly owned by private citizens and businesses. The founders would have looked at every technological advancement in arms and accepted it the same way you say they would accept electronic media. They had just finished a hard fight for their freedom. A fight that they won in part because they were able to have the same firepower the British Army did. The revolution wasn't won by Kentucky long rifles and indian tactics, it was won by the Continental Army with smoothbore muskets and cannon, just like the British Army used. The idea of the power to use force to keep their freedom wasn't a quaint notion to our founders. They did it. Many lost all they had, family members and lived the entire revolution as criminals with prices on their heads. They were not squeamish men who would look at an M240 and see something that was too dangerous for the citizens to possess. They would say if it's available to the government, the people should also have it.
Why is that? Because we've raised a generation to fear inanimate objects? A right cannot have limits.
I ask you, if you start putting limits on a right, where does it stop? The Bill of Rights doesn't give us any rights. It acknowledges that all men have those rights and it limits the government. As many here are fond of saying; What part of Shall not be infringed is hard to understand?
Jeff
Jim March
Member
It's a very good question, something of a variant on the "should people own nukes?" argument.
My personal answer is kinda radical, but makes sense as a practical matter: people should be allowed to have those arms prepared for use which are reasonable to self defense UNDER THEIR CIRCUMSTANCES, and which pose the minimum possible threat to innocent bystanders.
Under this thinking, if you live in a dense housing complex and have a 50BMG Barret set up as a home defense gun, that's just nuts. Crank that sucker off, and it's going to go through about 10 or 20 people's home sweet homes.
Target shoot with it out in the desert, or for that matter use it as home defense piece on a remote ranch, cool.
Piloting a large sailboat through water swarming with drug runners and similar weirdos? A couple of SAWs or similar belt-fed full autos (M60 class or similar) makes perfect sense. Same gun in a suburban tract house? Insane.
Carry a 44Mag loaded with hot hardcast on a crowded subway? Gonzo. Carry the same gun with the same load while fishing in Alaska, in case of bears? Perfectly reasonable.
300 years from now, you're hangin' out on your private asteroid 500,000 miles from the nearest neigbor and you have a legit fear of space pirates of some sort? A home defense setup based on thermonuclear devices makes perfect sense. (Or for another example: we won't be able to mine the asteroid belt without nukes. You want to automatically limit that to governments only?)
Once you apply THIS "reasonableness test", a lot of problems evaporate.
My personal answer is kinda radical, but makes sense as a practical matter: people should be allowed to have those arms prepared for use which are reasonable to self defense UNDER THEIR CIRCUMSTANCES, and which pose the minimum possible threat to innocent bystanders.
Under this thinking, if you live in a dense housing complex and have a 50BMG Barret set up as a home defense gun, that's just nuts. Crank that sucker off, and it's going to go through about 10 or 20 people's home sweet homes.
Target shoot with it out in the desert, or for that matter use it as home defense piece on a remote ranch, cool.
Piloting a large sailboat through water swarming with drug runners and similar weirdos? A couple of SAWs or similar belt-fed full autos (M60 class or similar) makes perfect sense. Same gun in a suburban tract house? Insane.
Carry a 44Mag loaded with hot hardcast on a crowded subway? Gonzo. Carry the same gun with the same load while fishing in Alaska, in case of bears? Perfectly reasonable.
300 years from now, you're hangin' out on your private asteroid 500,000 miles from the nearest neigbor and you have a legit fear of space pirates of some sort? A home defense setup based on thermonuclear devices makes perfect sense. (Or for another example: we won't be able to mine the asteroid belt without nukes. You want to automatically limit that to governments only?)
Once you apply THIS "reasonableness test", a lot of problems evaporate.
Marko Kloos
Moderator Emeritus
The Second Amendment was intended to establish a force parity between the citizenry and the government. Therefore, any and all weapons used by the military are rightfully at home in the gun safes of free citizens.
The Second Amendment is not about duck hunting. It's not even about self-defense against relatively lightly-armed muggers, although that's a nice side effect. The Second Amendment was intended to make sure the citizenry had a way to hit the reset switch on the United States if we ever find ourselves with a Stalin, Hitler, or domestic version of King George.
Oh, and the "private ownership of fully automatic weapons" was completely normal and legal from the invention of the machine gun until 1934, when the government "taxed" automatic arms. Back then, they still recognized that the Constitution didn't allow for outright banning of machine guns, so they slapped a $200 tax on $150 submachine guns, and called it a "revenue measure".
MacPelto
Member
freewheeling
Member
I'm, frankly, a little disappointed. There are. to my mind, some pretty exotic and interesting answers but they seem absolutely indefensible from a political or practical standpoint. Except for the argument about matching context to self-defense all arguments would allow Osama the possession of nukes provided he were an American citizen and had not yet launched an attack against anyone. (And I'm not too sure he need be an American citizen since what you're implying is that these are basic rights that are merely acknowledged by the Constitution, and are therefore non-exclusionary for all mankind.) I'm not sure it's possible to come up with a more fundamentally flawed conception of rights and obligations. We have rights *because* we live in a state that defends them. Ask any stateless people that, and they'll set you straight.
Of course there are things that groups can do that individuals within the group are barred from doing. Levying taxes, for instance. I can't require you to automatically send me a certain portion of your paycheck every year without a contract specifying the delivery of a specific good or service. A tax is not a fee, and individuals cannot "opt out" at their own discretion. In fact the whole notion behind the concept of a Constitution is that, like Ulysses tied to the mast, it allows the group the ability to restrain certain individual behavior that would otherwise lead to "the war of all against all" and therefore allows cooperation in endeavors that would be impossible for the individuals themselves, operating alone. It's not a "free ride." *Of course* there's a difference between Public and Private Choice. Governance would be impossible without it. Why bother with a Constitution otherwise?
I really didn't know that I'd need to drop back to the level of basic Public Choice philosophy in order to get at this. I honestly don't think I can, in good conscience, support any of these answers because the implication is that a veto against the establishment of the group endeavor is a fundamental right, and that therefore the contract to engage in the group endeavor is non-binding. Why *have* a contract, if that's the case?
I'm afraid that I see the problems inherent in an unrestricted right to bear arms insurmountable, and one would simply have to reject your interpretation of the Second Amendment if you insist on that, or unless there were enough of you to impose your interpretation on everyone. I thought my friend had found a way out of the dilemma. I think any responsible Supreme Court, hearing the arguments presented here for such rights, would reject those arguments. They'd have to.
The reality, of course, is that "the war of all against all" *is* possible. Indeed, we ought to be able to see that it's now looming just around the corner. There is nothing but our agreement, our "Public Choice," expressed through a Constitution that prevents it. And this is a bulwark that we establish and maintain because the alternative would be something lake a Hundred Years War, with nukes. And odds are it wouldn't last anything like a hundred years, either.
Now, I'm willing to acknowledge that the Constitution does, indeed, protect your right to have a nuke if you absolutely insist and there are enough of you to compel that interpretation, because agreement is really the only thing that backs up a Constitutional interpretation. Since the Constitution itself is a Public rather than a Private process I, as an individual, can't overrule it. But when push comes to shove, I'm not going to defend it. I wouldn't defend it rhetorically, and I wouldn't defend the state that it founds against a foreign aggressor. Why not? Because it doesn't provide me any security at all against the possibility of living under anarchic conditions for the balance of my life. I'd have to support a different state under a different Constitution that draws a line that prevents anarchy. And I was really hoping to avoid that whole thing, because I have a deadline at work.
On the bright side (for me) I don't think any of the arguments presented here are themselves insurmountable for my friends' interpretation. Even absent a legitimate right to own cannon and raise private armies the state could allow it, and congress could even commission them, for reasons entirely expedient. I see no problem with that whatever. So the bottom line for me is that although I don't like your arguments, and don't find them encouraging or convincing, they don't really prevent me from defending the Second Amendment as a legitimation of the rights of individuals to privately own and bear arms. But I do wish you'd given me a bit more to go on. At least a toe-hold somewhere.
Of course there are things that groups can do that individuals within the group are barred from doing. Levying taxes, for instance. I can't require you to automatically send me a certain portion of your paycheck every year without a contract specifying the delivery of a specific good or service. A tax is not a fee, and individuals cannot "opt out" at their own discretion. In fact the whole notion behind the concept of a Constitution is that, like Ulysses tied to the mast, it allows the group the ability to restrain certain individual behavior that would otherwise lead to "the war of all against all" and therefore allows cooperation in endeavors that would be impossible for the individuals themselves, operating alone. It's not a "free ride." *Of course* there's a difference between Public and Private Choice. Governance would be impossible without it. Why bother with a Constitution otherwise?
I really didn't know that I'd need to drop back to the level of basic Public Choice philosophy in order to get at this. I honestly don't think I can, in good conscience, support any of these answers because the implication is that a veto against the establishment of the group endeavor is a fundamental right, and that therefore the contract to engage in the group endeavor is non-binding. Why *have* a contract, if that's the case?
I'm afraid that I see the problems inherent in an unrestricted right to bear arms insurmountable, and one would simply have to reject your interpretation of the Second Amendment if you insist on that, or unless there were enough of you to impose your interpretation on everyone. I thought my friend had found a way out of the dilemma. I think any responsible Supreme Court, hearing the arguments presented here for such rights, would reject those arguments. They'd have to.
The reality, of course, is that "the war of all against all" *is* possible. Indeed, we ought to be able to see that it's now looming just around the corner. There is nothing but our agreement, our "Public Choice," expressed through a Constitution that prevents it. And this is a bulwark that we establish and maintain because the alternative would be something lake a Hundred Years War, with nukes. And odds are it wouldn't last anything like a hundred years, either.
Now, I'm willing to acknowledge that the Constitution does, indeed, protect your right to have a nuke if you absolutely insist and there are enough of you to compel that interpretation, because agreement is really the only thing that backs up a Constitutional interpretation. Since the Constitution itself is a Public rather than a Private process I, as an individual, can't overrule it. But when push comes to shove, I'm not going to defend it. I wouldn't defend it rhetorically, and I wouldn't defend the state that it founds against a foreign aggressor. Why not? Because it doesn't provide me any security at all against the possibility of living under anarchic conditions for the balance of my life. I'd have to support a different state under a different Constitution that draws a line that prevents anarchy. And I was really hoping to avoid that whole thing, because I have a deadline at work.
On the bright side (for me) I don't think any of the arguments presented here are themselves insurmountable for my friends' interpretation. Even absent a legitimate right to own cannon and raise private armies the state could allow it, and congress could even commission them, for reasons entirely expedient. I see no problem with that whatever. So the bottom line for me is that although I don't like your arguments, and don't find them encouraging or convincing, they don't really prevent me from defending the Second Amendment as a legitimation of the rights of individuals to privately own and bear arms. But I do wish you'd given me a bit more to go on. At least a toe-hold somewhere.
freewheeling
Member
And fortunately the fact that it was completely normal and legal doesn't in any way establish it as a "right." And efforts to tax the practice out of existence may also have simply been expedient, rather than an acknowledgement of an inalienable right. But for the record I'm willing to draw the line somewhere else, as long as it's workable. I'm not dead set on making that the line. At least not yet, without further consideration. I'm not even dead set against cannon, if you can draw me another legitimate line somewhere that's defensible. Just a toe-hold on rationality is all I'm asking.
I haven't dealt with the notion of small arms against a big army. I guess on the latter I'm willing to acknowledge that if the cause is widely seen as just a group that is supplied with small arms, but with significant popular support, could prevail against a large army. They could at least hold out until there were a lifeline thrown by an outside ally, which is the way most such conflicts are resolved. But there might be some social compromise involved in that process as well. However, that scenario would only work provided the enemy army were not willing to or capable of using WMD. In the event that the conflict escalated to the point at which civilians are legitimate targets the large modern army would prevail because it could use the same 21st Century targeting technologies that it uses to avoid civilian casualties to target those same populations, with devastating lethality. End of conflict and end of supporting population. And that, indeed, may be what it comes down to in the Middle East gentlemen. That is precisely the liberal argument for supporting the War in Iraq, as a rescue operation for a civilization on the brink of anarcho/totalitarian madness.
And I also haven't yet dealt with the suggestion about matching self-defense needs to the context, which appears to be the most promising alternative to my "cannon" theory. I'll have to think about that some more. Now back to work for awhile (fortunately I do have some discretion there). Thanks for taking the time to reply to my posts. I'll be back.
This has been beaten to death but here is my quick rebuttal to anyone stating the second amendment is for militias only.
After the second amendment became a reality was there any attempt to disarm those who were not in the militia? Since a "well regulated militia" will tell who is and who is not a member there should have been a movement to take guns away from those who were not members of the militia.
That usually draws nothing but cricket sounds from the anti people.
After the second amendment became a reality was there any attempt to disarm those who were not in the militia? Since a "well regulated militia" will tell who is and who is not a member there should have been a movement to take guns away from those who were not members of the militia.
That usually draws nothing but cricket sounds from the anti people.
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