Quantcast
  1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

Second Amendment Theory/Absolute Interpretation

Discussion in 'Legal' started by Flyboy, Nov 21, 2008.

Thread Status:
Not open for further replies.
  1. Flyboy

    Flyboy Member

    Joined:
    Apr 19, 2004
    Messages:
    1,888
    Location:
    Oklahoma City, OK
    All,
    I just read a truly inspired post on how the Second Amendment ought to be read, and I wanted to share it here. Posting in Legal because it's about legal theory; please feel free to move it if appropriate. I apologize for the length, but I assure you it's well worth the time to read.

    In my opinion, this is how we ought to be doing things (not just on the firearms front, either: as you read, consider how we executed the prohibition on alcohol vs. how we're handling the prohibition of drugs). The emphasis is my own; it is (in my view) the most important part of the piece, and it explains why absolutism is not only not a bad thing, but actually a very good thing, using the old canard we've all read about nuclear weapons and such.

     
  2. MIL-DOT

    MIL-DOT member

    Joined:
    Jun 20, 2006
    Messages:
    3,110
    Location:
    Georgia,C.S.A.
    Great post Flyboy !! And I thought this point was the gem of the essay:
    "Scalia says that they did it because the constitution protects “the inherent right of self-defense”, which is entirely beside the point (and not what the constitution says anyway); the law infringed — therefore, it was illegitimate. Period."
     
  3. Frank Ettin

    Frank Ettin Moderator

    Joined:
    Apr 29, 2006
    Messages:
    10,238
    Location:
    California - San Francisco Bay Area
    All well and good and meaningless.

    Courts will continue to rule on the basis of prior ruling and in accordance with the traditions of judicial analysis, without regard to what you, I or any other denizen of the Internet might think. The opinions of judges will affect real people in real life. Our opinions will affect nothing.
     
  4. Prince Yamato

    Prince Yamato Member

    Joined:
    Aug 16, 2006
    Messages:
    4,409
    Location:
    Texas
    However, school carry is a states-rights issue that can be worked at the state level. So what Scalia said doesn't have much clout except in the liberal areas that want to ban guns anyway.
     
  5. Flyboy

    Flyboy Member

    Joined:
    Apr 19, 2004
    Messages:
    1,888
    Location:
    Oklahoma City, OK
    Fiddletown, I didn't post this because I expected the world to change to conform to it, but more as a topic for discussion to address the long-standing claim here that even we don't want the Second Amendment interpreted literally. I also hoped to spark some recognition that making an exception in one area (say, nuclear weapons) imperils all others, particularly when we have a way to address that concern (the amendment process).

    If I really thought that a post on THR would change outcomes, I'd A) be posting a lot more often, on more topics, and B) be living in a rubber room. That said, getting the idea out can be helpful as a means of strengthening our own arguments in the future. It's not going to help today, but it might weigh just a little bit in our favor down the road, if used on the right person. No sense in claiming defeat this early.

    And even if not, THR is a place for discussion. Discuss!
     
  6. Frank Ettin

    Frank Ettin Moderator

    Joined:
    Apr 29, 2006
    Messages:
    10,238
    Location:
    California - San Francisco Bay Area
    I’m not urging that we accept defeat. The point is to understanding how things actually are and work. No one said that we have to accept current or any new restrictions on our rights or that we shouldn't try to change current injustices or fight efforts to impose new ones. But you can't do that effectively unless you understand how things actually are and work in the real world. You can't fix a carburetor unless you understand how it functions.

    Twenty years ago, one could not carry a concealed gun in most states. Now one can in most states (at least with a permit that is relatively easy to obtain). This right was won by people who understood and could effective use the political process.

    Dick Heller and his lawyers won a Supreme Court decision for the first time directly holding that the Second Amendment is an individual right and rejecting the "collective right" view that had become popular and had been driving anti-gun legislation and court decisions. This can become a powerful tool in our efforts to preserve the RKBA against a generally increasingly antagonistic society. Heller and his lawyers accomplished this by understanding the law and how it works and making appropriate use of it.

    If we are to win (as I hope we do and think we should) in the courts, it will be because we have the help of wise and skillful lawyers who understand the law and legal processes. If we are to win in the political arena, it will be because we have the help of people who understand the world of politics and operate effectively in that world. But if we deny the reality of the courts and politics, we will not be effective and will be buried by those interests who can more adroitly "work the system."
     
  7. gc70

    gc70 Member

    Joined:
    Dec 22, 2004
    Messages:
    2,980
    Location:
    North Carolina
    Unfortunately, a Constitutional amendment is not a viable way to address the fact that the language of the Second Amendment is open-ended as to the scope of arms that it protects.

    It is all so obvious when you or I get to write the proposed amendment. However, you and I would object quite loudly when others proposed adding "or assault weapons" to the list of prohibited arms. Since there is no consensus about what constitutes acceptable types of arms, a Constitutional amendment is not workable.
     
  8. Bubba613

    Bubba613 member

    Joined:
    Aug 2, 2007
    Messages:
    1,953
    Best post yet.
    Yelling that "the 2A is all the permit I need" makes for good theater and little else. Time to face the tougher reality that we get what we want by lobbying, informing, and voting, i.e. the political process.
     
  9. Flyboy

    Flyboy Member

    Joined:
    Apr 19, 2004
    Messages:
    1,888
    Location:
    Oklahoma City, OK
    gc70, I disagree. You're talking about the same problem that plagues all laws: finding language acceptable to all parties.

    Yes, there are some who would want to add ever-more-stringent categories of arms to those not covered by the Second, but do you really think they could get thirty-eight states to agree to banning "assault weapons?"

    Nukes would be easy--I imagine that would be unanimous, and take about three hours (time zones, and all that). But if certain people tried to add extraneous language, the amendment would fail, possibly before it even got out of the Congress. The "no consensus" isn't actually accurate: there is a consensus on the most extreme, and that's what we're looking to ban. Any attempt to whittle down the more common arms would fail, allowing broad protection while properly permitting the regulation of weapons of mass destruction.

    And, once again, I'm not saying this is the way things do work, I'm offering it as a thought experiment for the way things should work. It also makes a good answer to those who bring up the nuclear weapons canard in response to a meaningful Second Amendment. Further, the concept goes beyond guns: as the original author and I both pointed out, disregard for one part of the law tends to bring the whole body of law into disrespect.
     
  10. K3

    K3 Member

    Joined:
    Nov 14, 2006
    Messages:
    1,508
    Location:
    Looking through the scope at a coyote
    I thought there was a difference between munitions and arms. Nukes being a munition. A 155mm HE arty round being a munition. Etc. :confused:
     
  11. Sinixstar

    Sinixstar member

    Joined:
    Nov 4, 2008
    Messages:
    897
    There's a few flaws with this argument.

    First, you suggest an amendment that prohibits WMD's.
    Great - so, why stop there? How's about WMD's, full auto's - and while we're at it, hi-cap mags for semi-autos. On one hand you're arguing that the constitution is set in stone and should be read 100% by the strict literal definition of the words, but on the other hand you're saying "but,we can always change it if the circumstances call for it..."

    Second, You mention the meaning of "well regulated" - but then go on to say that this means ANYBODY should be able to have ANYTHING at any time. That goes directly against the grain of the concept of "well regulated". The case could very easily be made, that a state's permitting process is to ensure the regulation of armed and able-bodied Americans. Convicted felon? you're no longer of sound mind and disposition, therefor you are no longer able bodied. Can't pass the proficiency portion of your CCW Training? Then clearly you are not well trained, and could not reasonably be expected to fight. You even mention that
    Fine - so a state says that a single-shot .22LR rifle is all that is needed, and therefor all that is allowed for the militia to operate.

    I get where you're going, and it is a well thought out argument, but there's too many contradictions.
     
  12. Sinixstar

    Sinixstar member

    Joined:
    Nov 4, 2008
    Messages:
    897
    Also, the problem with an amendment to the 2nd that excludes WMDs, is that it sets a precedent that says the 2nd amendment can, and should, be modified to restrict it's meaning and definition based on the needs of the "greater good" of society.
    Congratulations, you have now just justified the EXACT argument the anti movement has been making all this time.
     
  13. Hawkmoon

    Hawkmoon Member

    Joined:
    May 5, 2004
    Messages:
    3,454
    Location:
    Terra
    The analysis of what the 2nd Amendment means was excellent. So was the analysis of why Scalia's majority decision was badly (fatally?) flawed.

    I join those, however, who recoil at the idea of proposing a Constitutional amendment to revise the 2A as a way of banning WMD. Those who have ever had any exposure to the political process understand that, once something gets opened up for "discussion," the lid has been removed from Pandora's box and the devil take the hindmost.

    On a state level, I have seen the entire text of a proposed bill get scrapped by a legislative committee and substitute language accomplishing the exact opposite of the original intent put into the "revised" bill under the original title. Unless people (and legislators) were paying attention, they wound up suporting the bill because they thought the original bill had been voted out of committee, and they had no idea it had been hijacked.

    I have no doubt that the same thing happens in Washingtoon. As tempting as it might be to try to regulate or ban WMD through a Constitutional amendment, attempting to do so would be disastrously suicidal.

    Besides, I've always wanted a STND* of my very own ...







    * Small ThermoNuclear Device
     
  14. gc70

    gc70 Member

    Joined:
    Dec 22, 2004
    Messages:
    2,980
    Location:
    North Carolina
    Quite possibly. Once the amendment process starts, anything is possible. Nuclear, biological and chemical weapons would be gone immediately. Missiles and artillery might take a minute or two of discussion. After showing this video or this video, there might be a little argument, but 'machine guns' would be gone fairly quickly. Once machine guns are gone, the debate would turn to 'assault weapons' that look like machine guns. Are you confident that enough state legislators know (or care about) the difference between an M-16 and an AR-15 to prevent look-alike 'assault weapons' from being banned? That is a can of worms that I would not care to open.
     
  15. Frank Ettin

    Frank Ettin Moderator

    Joined:
    Apr 29, 2006
    Messages:
    10,238
    Location:
    California - San Francisco Bay Area
    Exactly -- everything is on the table -- even repeal
     
  16. Flyboy

    Flyboy Member

    Joined:
    Apr 19, 2004
    Messages:
    1,888
    Location:
    Oklahoma City, OK
    The two are not mutually exclusive. You read it literally for what it is, and if it need to change, you go through the (laborious) process of changing it. For example, consider the case of the Eighteenth and Twenty-First Amendments.

    Not necessarily; consider that cannon were privately owned, and even warships.

    Because they're so much safer now, right?

    Requiring a literal read of the Constitution would change the requirements for a ban from 50% of the House and 50% of the Senate to 67% of the House, 67% of the Senate, and 75% of the states, and you don't see how that would make it harder to enact a ban?

    News flash: that's exactly what the Constitution says, and not just the Second. The entire thing is subject to amendment. What I'm saying (or, more correctly, agreeing with) is that we ought to require the government to go through the formal process of making that change, rather than simply ignoring the rule and proceeding as if the change had been made. By saying it's okay to restrict that which "shall not be infringed" without following the process, you make it okay to eviscerate the entire thing. I propose to set a limit as to what can be done, namely the terms of the amendment; what limit do we have without a proper amendment?

    Again, do you really think you could get the necessary supermajorities to support a repeal? If the conditions were ripe to do so, do you really think the Second is safe either way?
     
  17. Sinixstar

    Sinixstar member

    Joined:
    Nov 4, 2008
    Messages:
    897
    But you can't have it both ways.
    One argument is "it's my constitutional right - it's plain as day - what about that don't you understand!"
    On the otherhand - "well - it's my constitutional right, but, we can change that..."

    As far as what it would take to get it done - 67% of the house, and 67% of the senate really wouldn't be all that difficult. Especially considering that the first AWB passed the senate with 94%. (House was a voice vote, no records kept - but my understanding is it was pretty overwhelming). Only tricky thing would be the 75% of states - and honestly - if there's that much overwhelming support in the house/senate - i don't think that getting 38 states on board would be all that difficult.

    So - I have to ask - do you really want to go down that road? You have a whole campaign of people who would like nothing more then to strike the 2nd off the constitution...
     
  18. Frank Ettin

    Frank Ettin Moderator

    Joined:
    Apr 29, 2006
    Messages:
    10,238
    Location:
    California - San Francisco Bay Area
    Yup. It's safer if we don't open the issue of changing it. It's about inertia. Nobody wants to start, but once something is started, everyone comes out of the woodwork. And given the strong anti-gun media bias, the big money interests lined up against the 2nd Amendment, and the strong anti-gun sentiments in large, politically powerful states like New York, Illinois, Massachusetts and California, if we start the amendment process, it's virtually guaranteed to veer out of our control and go off in the wrong direction.

    If you open a can of worms, guess what. You find a lot of worms. How good are you at herding worms?
     
  19. ConstitutionCowboy

    ConstitutionCowboy member

    Joined:
    Mar 15, 2006
    Messages:
    3,230
    Location:
    Oklahoma
    Just a thought: If it were such a "lock" for the anti crowd if someone were to open that can of worms, the anti crowd would have opened that can a long time ago.

    Here's something else: This quote taken from DC v. Heller:

    Is a misleading tidbit taken out of context. In the full context, Scalia and company refer to quotes from Blackstone and other 19th Century cases wherein they conclude as follows:

    Notice that "use" of arms is included in the text - something not actually covered by the Second Amendment.

    Further down in the same paragraph, Scalia mentions that they are not undertaking an exhaustive historical analysis of the full scope of the Second Amendment and conclude the paragraph with the following footnote:

    See that word 'presumptively'? That says all those laws are still open to adjudication. That word "presumptively", and the inclusion of "use" in the second sentence leaves it all up in the air as far as the "scope" of the Second Amendment is concerned.

    Because this opinion didn't challenge these "longstanding prohibitions, etc," there were no conclusions drawn in this opinion as to the efficacy of those laws, therefore, Scalia said don't try to draw any such conclusions.

    There is a lot to work with in the future in Heller when taken in context.

    Woody

    I see it clearly as fact. Words mean things. Just as numbers have value, you can add, subtract, multiply and divide them. I just do the math. B.E. Wood
     
  20. Frank Ettin

    Frank Ettin Moderator

    Joined:
    Apr 29, 2006
    Messages:
    10,238
    Location:
    California - San Francisco Bay Area
    The short answer is that they probably felt no need to. Until Heller there was no solid "individual right" Supreme Court decision. The Second Amendment was still up for grabs, and the "collective right" interpretation was still on the table.

    The Supreme Court, as all courts in the U. S., decides cases. Heller dealt only with the D. C. law, and it was necessary to apply the Second Amendment only to the extent required to decide that case. There are many questions regarding the Second Amendment still to be worked out in the courts, and, hopefully, the anti-gun crowd will be content to fight their fight in the courts. Why invite them to a "let's change the Second Amendment" party?
     
  21. Sinixstar

    Sinixstar member

    Joined:
    Nov 4, 2008
    Messages:
    897
    It's not that it's a lock.
    It's that pushing the debate and getting the ball rolling is the hardest part of the process sometimes. For whatever reason, they have chosen not to pursue that avenue of argument - so let's not open that door for them.
     
  22. Sinixstar

    Sinixstar member

    Joined:
    Nov 4, 2008
    Messages:
    897
    Couldn't have said it better myself.
     
  23. ConstitutionCowboy

    ConstitutionCowboy member

    Joined:
    Mar 15, 2006
    Messages:
    3,230
    Location:
    Oklahoma
    The antis haven't pursued that avenue because they've had good luck simply ignoring the amendment or spinning it with interpolation, malapropism, and dissembling. If we gain a lot of ground with similar favorable rulings such as Heller, the antis WILL pick up that can of worms and start ripping off that lid all on their own.

    When that happens, we'll be in a defensive position - again - but you're right. We stand on much firmer ground sticking to our "guns" and holding the amendment sacrosanct. Let THEM try to marshal 38 states to go along with them.

    Woody
     
  24. yokel

    yokel Member

    Joined:
    Apr 29, 2007
    Messages:
    1,193
    The Second Amendment provides that the government shall not "infringe" on the people's right to keep and bear arms. As understood by the Founders, the term "infringe", as it relates to rights, means "to encroach on or upon". This means to invade gradually. Thus, the Second Amendment prohibits the government from interfering with this right, no matter how minimally; no matter how subtly. This includes indirect interference, such as oppressive taxation or regulation.

    Furthermore, the use of the command "shall not" was used to eliminate any argument that the right was subject to the government's discretion. The Founders did not use the term "shall not be infringed" by accident but by design. They intended to preclude the government from implementing sophisticated means by which to encroach upon this right. After all, the amendment was designed to be a check against government's abuse of power, and it would be in the government's best interest to encroach upon or eliminate this right. Virginia delegate George Mason stated it most succinctly, "To disarm the people is the best and most effective way to enslave them".

    Accordingly, the Founders used specific language in order to obtain a specific result, to secure our right to keep and bear arms for our protection against government. Those who actually believe that the Founders were not deliberate in their drafting of the Second Amendment are either naïve or misinformed.
     
  25. Ditto_95

    Ditto_95 Member

    Joined:
    Jun 1, 2007
    Messages:
    105
    Location:
    Central Kentucky
    The OP presented an excellent disection of the 2A and the USSC decision.
    There will always be some interpratation of the 2A because the authors are dead. No further explanation will be forth coming.

    In the disection the author presented that there is a method to ammend the 2A. This is a true statement.

    While many of us abhorr the idea of ammending the 2A, it is possible. Gaining consensus would be the difficult part.
    And who is to say that it would not be ammended during a left leaning (or right leaning) congressional majority. And then when the wind blows the other way it gets changed (ammended) the other way.

    Since Heller v. DC was brought as a complaint to the DC gun ban as being unconstitutional, the decision was that it was unconstitutional. Period.
    The balance of Scalia's opinion is of no consiquence as it relates to the decision.
     
Thread Status:
Not open for further replies.

Share This Page