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Topic:
Oh second amendment strife, how I've missed you.
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Espaldapalabras
Registered:
Aug '05
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Date Posted:
6/30 4:31pm
Subject:
RE: Oh second amendment strife, how I've missed you.
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The truth is that the second amendment just wasn’t written all that well and could have gone either way depending on how the last 200 years of our history had played out. Looking back I think we did take it as an individual right. If the framers had wanted it only for government militias, they should have used better punctuation and grammar.
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LostOnHoth
Registered:
Feb '00
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Date Posted:
6/30 4:34pm
Subject:
RE: Oh second amendment strife, how I've missed you.
- Date Edited:
6/30 4:38pm (1 edits total)
Edited By:
LostOnHoth
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In relation to the analogy I think there is an important distinction between "keeping" and "bearing" in the context of weapons as opposed to a bathtub or a bicycle or an Elmo fluffy toy which you can keep but do not 'bear' in the same sense.
With a firearm, you can 'keep' it and you can 'bear' it. Two different concepts in my mind. No law can restrict the right to 'keep' the firearm or to 'own' or 'possess' a firearm without offending against the second amendment. However, what about the word 'bearing' the firearm. The word 'bear' denotes the use of the weapon doesn't it? If you 'bear' a weapon you hold it, you use it -it is more than simple ownership.
If this is correct, then the right to 'bear' arms is limited to the purpose for which it was enacted, namely, to maintain a well regulated militia being necessary to the security of a free state. The term 'militia' denoting an armed and trained civilian population not forming part of the regular army.
From my reading, the 'mischief' that the second amendment was intended to cure was the prospect of tyranny by a government by disarming the population, by opening the door to oppression. It follows that the right to 'bear' arms, that is , actually use the weapons, is limited to this purpose - that is, opposing such government oppression and tyranny. It was intended that in those circumstances, the people would be free to go to their gun lockers grab a weapon and use it. Any law which restricts the ability of a citizen to do this, that is, by banning the ownership and use of weapons would offend against the second amendment and be invalid.
However, a law which restricts the use of a weapon for self defence, in the absence of government tyranny, would not offend against the second amendment and would be valid. The DC law did not restrict gun owership, it restricted how that gun could be effectively used in the context of self defence. In other words the law restricted how you could 'bear' that weapon, but did not restrict the right to bear that weapon in the context of opposing government oppression and tyranny. Therefore it is valid.
Analogies can be useful in legal analysis, but I can't see it working in this example.
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Mr44
Registered:
May '02
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Date Posted:
6/30 8:11pm
Subject:
RE: Oh second amendment strife, how I've missed you.
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The DC law did not restrict gun owership, it restricted how that gun could be effectively used in the context of self defence. In other words the law restricted how you could 'bear' that weapon, but did not restrict the right to bear that weapon in the context of opposing government oppression and tyranny. Therefore it is valid.
While this is accurate, no law that does what you describe has ever passed court review that I can think of. I'm sure there are examples, but the trend is the reverse.
One could look at the DC law and say "well, it didn't stop anyone from keeping a firearm, all it did was mandate that they either be disassembled or locked up..." But isn't the result just an attempt to get around on a technicality? In other words, what's the practical difference between not owning a shotgun and being told that the shotgun has to be broken down into 5 sections and stored in a drawer?
I suppose the only way it really works, as you mentioned, is if one looks to an extremely limited view that the shotgun could be taken out and assembled for the sole purpose to overthrow a corrupt government or defend from a "Red Dawn" type takeover.
Remember, this decision doesn't impact the restrictions that apply to the carrying of firearms in public, or the usage of such with regard to public safety. DC's law mandated all of this in a person's residence, regardless of situation or result.
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LostOnHoth
Registered:
Feb '00
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Date Posted:
6/30 8:38pm
Subject:
RE: Oh second amendment strife, how I've missed you.
- Date Edited:
6/30 8:46pm (1 edits total)
Edited By:
LostOnHoth
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In other words, what's the practical difference between not owning a shotgun and being told that the shotgun has to be broken down into 5 sections and stored in a drawer?
I'd argue that if the use of that shotgun is limited to militia activities only (as the wording of the statute indicates to me)then as long as the shotgun is available for such use it doesn't matter whether it can be quickly assembled or not. You need to be able to use the shotgun quickly if someone is breaking into your home for self defence but not necessarily if the government introduces and enforces policies purporting to disarm the population.
I guess one of the aspects of the decision that I struggle with (purely on a theoretical basis) is the affirmation that the second amendment protects an individual right to use arms for self-defense. This is described as being an "inherent" right or pre-existing right not specifically enumerated in the statute. Isn't that the whole point of the bill of rights - to enumerate certain (but not all) pre-existing rights or inherent rights and place a prohibition on laws that infringe those rights? The inherent right to self defence should have been enumerated in the statute if it was intended to be protected.
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Mr44
Registered:
May '02
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Date Posted:
6/30 8:45pm
Subject:
RE: Oh second amendment strife, how I've missed you.
- Date Edited:
6/30 8:51pm (1 edits total)
Edited By:
Mr44
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Well, I'm not so sure. It could be that the framers took that aspect for granted because the 2nd Amendment does fall within the Bill of Rights, which were designed to limit the powers of the federal government with regard to individual citizens.
It would be strange that the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 10th Amendments all applied to the rights of individuals, but the 2nd, and the 2nd alone, only applied to a collective right because it mentioned the word militia.
It would be like someone looking at the 1st Amendment, and interpreting the concept behind the word "press" to mean newspapers overall, and not that the clause protected any specific newspaper...
Come to think of it, that's a strange analogy as well. I don't know what an accurate analogy would be. Being that the 2nd Amendment was contained in the Bill of Rights, I always looked at the "collective right" argument to be one of the weaker ones. If the "right to bear arms" Amendment was actually the 13th, or similar, this would be a different issue.
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LostOnHoth
Registered:
Feb '00
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Date Posted:
6/30 8:55pm
Subject:
RE: Oh second amendment strife, how I've missed you.
- Date Edited:
6/30 8:59pm (2 edits total)
Edited By:
LostOnHoth
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It would be strange that the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 10th Amendments all applied to the rights of individuals, but the 2nd, and the 2nd alone, only applied to a collective right because it mentioned the word militia.
Well it depends on the subject matter of the right. I would have thought a separately enumerated right to self defence would be an individual right. Like I said, I struggle with this stuff because it is mostly foreign to me. I live in a country that has no bill of rights and has laws which highly restrict the right of ownership of arms and bans certain weapons outright. Also, I practice real estate and insurance law. 
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Mr44
Registered:
May '02
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Date Posted:
6/30 9:07pm
Subject:
RE: Oh second amendment strife, how I've missed you.
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Yes, this is true. It's also why the firearms issue seems to be examined in depth in the US, while other countries look at it with a big question mark.
But to a lot of people, myself included, you can't remove the 2nd from the Bill of Rights without changing the fundamental nature of what the Constitution means. Not that I think it's ever going to be used to fend off a corrupt government, or somesuch- but there is an idealogical aspect here. Try removing the 1st or 4th Amendments from the Constitution and I'd bet there literally would be riots in the streets. The 2nd holds equal weight to the rest of the 10, regardless of if one agrees with it or not.
That's kind of the point, I think.
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Jabbadabbado
Title: Senate Floor Moderator
Registered:
Mar '99
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Date Posted:
6/30 11:10pm
Subject:
RE: Oh second amendment strife, how I've missed you.
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If I were reading the constitution alone front to back without any of the political or historical or prior case law baggage, I would interpret the second amendment as a clause intended to prevent the federal government from undermining the sovereignty of the various states by disarming their citizen militias.
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LostOnHoth
Registered:
Feb '00
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Date Posted:
6/30 11:22pm
Subject:
RE: Oh second amendment strife, how I've missed you.
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I can confirm that I have done just that.
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Mr44
Registered:
May '02
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Date Posted:
7/1 12:26am
Subject:
RE: Oh second amendment strife, how I've missed you.
- Date Edited:
7/1 1:12am (1 edits total)
Edited By:
Mr44
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But Jabba, I think that's a pretty skewed interpretation, even without all the baggage.
Again, how would you reconcile the fact that the entire reason that Madison was behind the Bill of Rights was because collectively, the 1st 10 Amendments protect the rights of individuals against the government? (or rather they limit government action directed toward the individual) Set aside everything that's happened since then, and just focus on the actual context of the text. Every other example of the 1st 10 apply to the individual. Not the state, not the collected community, but to the person.
However, jammed right in the middle, the 2nd Amendment- and it alone, is supposed to apply to state's rights? That conclusion doesn't make much sense. Even the broad based rationale of the Bill of Rights state indicate that the focus is on the individual, and not on the federal or state government:
The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Even under your "state militia" idea, the National Guard wasn't officially given dual authority until 1903, well past the era when the Constitution was written, and the framers wouldn't have considered the militia to be so organized.
I think that if anything, just looking at the text and without any of the future baggage, the logical conclusion is that the 2nd Amendment protects a system like Switzerland, where every able bodied person keeps the firearm they intend to use during incidents of emergency and the like.
But the US hasn't ever had anything like that. <---- What I mean is that historically, the original framers never specifically codified their intent with regard to the 2nd Amendment. The US Capital moved from Philadelphia to Washington DC in 1800. By Nov, 1800, Congress met for the first time in DC, but a lot of original support material was lost.
It's clear that at the time of the War of 1812, the concept of the militia was still a distinct one from the armed forces, as most of the "able bodied men" in the militia stayed home along the frontier, while the war was conducted by the Army and activated reserves.
The concept of the militia started taking on what you illustrated in your post by the time of the Civil War, when entire "state regiments" were comprised of volunteers sanctioned by their Governors but serving under federal authority. By the early 1900's, the modern concept of the National Guard was established.
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LostOnHoth
Registered:
Feb '00
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Date Posted:
7/1 4:35am
Subject:
RE: Oh second amendment strife, how I've missed you.
- Date Edited:
7/1 4:41am (2 edits total)
Edited By:
LostOnHoth
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If a 'militia' denotes an armed and trained civilian population why couldn't the second amendment protection be interpreted as an individual right? If every citizen forms part of the civilian 'militia', how is it a state right? Unless the term 'militia' only includes certain groups in society to the exclusion of others, then the whole 'individual' versus 'collective' right distinction doesn't make any sense.
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Quixotic-Sith
Title: Manager Emeritus
Registered:
Jun '01
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Date Posted:
7/1 4:45am
Subject:
RE: Oh second amendment strife, how I've missed you.
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I've never been sold on the idea of "Framer's Intent". I picked up a two volume set on the public debate leading up to the Constitution, and there are a number of conflicting and contradictory ideas expressed therein. Souderwan and I had a quick discussion about this in YJCC; the crux was that while there was a consensus statement about the letter of the law, there was no real unifed spirit of the law, and that a number of different interpretations are in line with the "Framer's Intent", suggesting that originalist interpretative philosophy has just as many underlying philosophical assumptions as non-originalist interpretative philosophies. This makes me skeptical about efforts to read into the Constitution and claim that the spirit can be deduced (not inducted) from the letter, or that the meaning is plain and static, rather than contextual.
On a different note, CNN reports that most gun deaths are suicides, and that gun ownership increases the likelihood of suicide/homocide (a point argued at length in the gun control thread):
http://www.cnn.com/2008/US/06/30/guns.suicides.ap/index.html
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Jabbadabbado
Title: Senate Floor Moderator
Registered:
Mar '99
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Date Posted:
7/1 7:09am
Subject:
RE: Oh second amendment strife, how I've missed you.
- Date Edited:
7/1 7:41am (3 edits total)
Edited By:
Jabbadabbado
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Originalist arguments vis a vis the second amendment border on the absurd. Here's why. The bill of rights in its entirety originally implied only to the federal government, and was not enforceable against state legislation. Hence my interpretation from my last post:
Jabbalawyerdo posted:
If I were reading the constitution alone front to back without any of the political or historical or prior case law baggage, I would interpret the second amendment as a clause intended to prevent the federal government from undermining the sovereignty of the various states by disarming their citizen militias.
Around 1900, the Supreme Court began for the first time to use the 14th amendment's due process clause to make the bill of rights enforceable against the states through the incorporation doctrine (a new idea penned into the constitution by the Supreme Court).
So, the idea that the second amendment was originally intended as an individual right to bear arms for self defense can't stand as an originalist or framer's intent argument by any test of logic, since the second amendment was clearly never intended to be enforceable against state-based regulation. There simply would have been no reason for the federal government to protect or enshrine that right unless it was asserting the sovereignty of the various states by protecting their right to arm the people in its defense.
One key example of incorporation at work: the first amendment's speech protection wasn't enforceable against the states until 1925.
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Master_SweetPea
Registered:
Nov '02
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Date Posted:
7/1 7:59am
Subject:
RE: Oh second amendment strife, how I've missed you.
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Jabbadabbado,
I'm having trouble following your logic.
Bill of rights only limits federal laws.
Incorporation goes into effect and now, the bill of rights applies to all laws.
Because the Bill of Rights was intended to only limit federal laws, Incorporation should be disregarded in this case only?
Is that what you're saying?
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Kimball_Kinnison
Registered:
Oct '01
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Date Posted:
7/1 8:18am
Subject:
RE: Oh second amendment strife, how I've missed you.
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Quixotic-Sith posted:
On a different note, CNN reports that most gun deaths are suicides, and that gun ownership increases the likelihood of suicide/homocide (a point argued at length in the gun control thread):
http://www.cnn.com/2008/US/06/30/guns.suicides.ap/index.html
I'm sorry, but that old argument is a clear example of correlation, not causation. I've yet to see a reliable study that shows a causative relationship between the ownership of guns and suicide.
Of course, most of the studies I've seen only focus on actual suicides, as opposed to attempted suicides. If you want to end your life, a gun is far more likely to do so successfully than a drug overdose, slitting your wrists, or a variety of other options available to anyone. A decrease in suicides after a gun ban doesn't really prove anything. If you show a decrease in attempted suicides, it would at least be more convincing.
But then, I also don't think that suicide should be illegal, or ultimately the government's business. (Assisted suicide is a different matter. You can do whatever you want to yourself, but if you are doing it to someone else, you are crossing the line.) Yes, the police should investigate (otherwise you could easily cover a murder as a suicide), but it shouldn't be treated as some evil thing. Yes, it can be a symptom of psychiatric disorders, but in the end if you are going to accept the right to control your own life, then you have to accept the right to end your own life.
Kimball Kinnison
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