Senate Gun Control

Discussion in 'Community' started by Ghost, Dec 14, 2012.

  1. PRENNTACULAR VIP

    Member Since:
    Dec 21, 2005
    star 6
    I'm not saying that we should take way the second amendment. I'm just saying that I think ES brings up a valid point. There are problems that come from the fact that we enshrined gun ownership in the highest level of the law, and one of those problems is the natural occurrence of people believing that their right to own and use a gun overrides somebody's right to live. For any gun control measure to be effective, we should start addressing that problem as well.
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  2. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    The only way to address the "problem" of it being enshrined at the highest level of law is by changing that law. That requires the amendment process, which is simply not going to happen. Even if it could get through Congress with the sufficient supermajority (which it can't), there's no way that you will get the necessary number of states to ratify it. It would only take 13 states opposing to scuttle it.

    You might not like that it is enshrined as a right, but it is, and that is a serious constraint to any attempt at gun control legislation. Too many of the proposals out there simply don't take that into account.
  3. PRENNTACULAR VIP

    Member Since:
    Dec 21, 2005
    star 6
    I'm not saying the fact that it is a law is a problem. I'm saying that there are problems which arise from that fact. And that any gun control measure will need to address those problems if it is to be effective.
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  4. Valairy Scot Force Ghost

    Member Since:
    Sep 16, 2005
    star 5
    Seriously? You value "cheaper" insurance over someone's life?
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  5. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Except you can't do that through passing more laws. Where those laws conflict with a higher law (i.e. the Constitution, including the Second Amendment), they would be invalid.

    Part of the problem is that any right comes with the potential to abuse that right. In order to have free speech, you have to tolerate those who use it to harm others (see Westboro Baptist Church for all the examples you need). Similarly, with the right to keep and bear arms you have the potential that some people will abuse that right. Sometimes that abuse carries a high price.

    However, as with other rights, prior restraint isn't the solution. All you can really do is encourage (rather than force) people to act responsibly, and deal with them after the fact when they do abuse their rights.
  6. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    I would say it would depend on whose life it is and what the specific situation is.

    If someone attacks me or my family, then I most certainly will not hold their life in great value. If someone were to try and rape my wife or my daughter, even if I knew for a fact that they were not going to otherwise harm/kill them, you better believe that I would do everything in my power up to and including using lethal force to stop them. By choosing to make such an attack, their life is no longer my concern. Stopping them from that attack is.

    That would even extend to defending property in some situations. For example, in a situation like after Katrina hit New Orleans, if someone were to try and steal food from my family, or take our generator (or its fuel), they would constitute a direct threat to my family's welfare. (When we went without power for several days this summer, our generator was the only thing that let us keep enough milk around for my son.) Again, I would do what I had to to stop them.

    I agree that the man in the article from Texas was excessive, but that doesn't mean that all defense of property with lethal force is.

    The recommendations I have been given for home defense in multiple self-defense courses (and from my attorney, who is an expert in my state's self-defense laws) is if someone is trying to break into my house, I should call 911, and while on the phone call out in a clear voice that I am armed and not to come in. If the intruder continues to try and break in, then it is reasonable to assume that they are armed and willing or intent on doing me and my family harm. On the other hand, if they have already broken in and are only taking property, I can try to detain them at gunpoint, but I am not legally justified in shooting them if they refuse to stop. They can just walk away (with TV in hand, if they choose).
    Last edited by Kimball_Kinnison, Jan 3, 2013
  7. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    D.C. v Heller rewrites the second amendment as follows:

    A well regulated militia being necessary to the security of a free state, [T]he right of the people to keep and bear arms [for immediate personal self defense] shall not be infringed.

    There's probably a second version in force too:

    A well regulated militia being necessary to the security of a free state, [T]he right of the people to keep and bear arms [for hunting and sport] shall not be infringed.

    I'm hopeful that in the long run the D.C. v Heller interpretation of the 2nd amendment will prove unworkable and be boxed in a bit. Urban and suburban handgun bans are a good thing, in my view no different from how the primary Chicago area Illinois counties have no gun season for deer hunting, only archery seasons. There are places where the right to hunt with guns for sport/leisure butts up against the safety rights of other people. Handguns in homes with children and in densely populated urban areas in general are I believe another analogous situation, where the right of self defense potentially should be overridden by more pressing safety concerns.
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  8. Valairy Scot Force Ghost

    Member Since:
    Sep 16, 2005
    star 5
    KK, obviously I was not referring to a "true" or at least debatable self-defense case. But purposely going after someone, which was what was being discussed at the time, is not such a scenario.
  9. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Heller did not rewrite the Second Amendment to erase the militia clause. It simply pointed out that the militia clause does not limit the Second Amendment, and that it was originally understood to include self-defense (as it was heavily derived from the Bill of Rights of 1689). That document had two complaints, and two accompanying provisions, that provided the basis for the Second Amendment:
    If you look at the various state constitutions and their analogous provisions to the Bill of Rights, many reference opposition to standing armies in place of the militia clause.

    It is also instructive to look at Blackstone's Commentaries on the Laws of England (1765), which explains the English right to self-defense at the time. In the section entitled "Of the Absolute Rights of Individuals", it says:
    Those two points alone demonstrate that the right to keep and bear arms was intended to be an individual right.

    The "militia" interpretation didn't rise up until US v. Miller in 1939, and that is a ruling that has been grossly misapplied over the years. Ultimately, all that Miller said is that Congress could not restrict firearms that would be associated with militia service. However, because there was no finding of fact (either way) saying whether a short-barreled shotgun was commonly used in the military (it was, and was known as a trenchgun), the case was then remanded to the lower courts to resolve that question. However, because Miller was killed a month after the Supreme Court arguments (and before the ruling was issued), upon remand the case was then dismissed as moot. The key holding in Miller stated:
    Even then, prior to 1939 the Second Amendment was also considered an individual right. For example, in the Dred Scot decision, it was specifically given as a justification for why blacks shouldn't be considered citizens:
    If it were not seen as an individual right, and instead was only tied to service in the militia, then there would have been no need to list it among the other individual rights that a "negro" would have as a citizen.

    In short (I know, too late for that), despite your repeated claims that Heller was a rewrite of the Second Amendment, it is actually quite faithful to the original understanding and meaning of the right to keep and bear arms.
    Last edited by Kimball_Kinnison, Jan 3, 2013
  10. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    I guess I'd like some clearer evidence of 1) how "defence, suitable to condition and degree and as allowed by law" was defined precisely under English law and 2) why Blackstone's Commentaries on the Laws of England are enforceable as interpretive guideposts for the American constitution (e.g. where its controlling authority is written into U.S. constitutional law) and why it should trump the plain language of the text or more recent U.S. constitutional law as controlling authority.

    If we're supposed to rely on the interpretation of text a century older than the bill of rights to determine the framer's intent rather than what they might have thought about its meaning a century later, then it seems to me we're on much safer ground relying on plain textual meaning and recent precedent. Cherrypicking precedent and defining phrases however we want, just as you are doing, is also how the Supreme Court does its job, so there's no reason to be confident the law won't change again fairly soon.
    Last edited by Jabbadabbado, Jan 3, 2013
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  11. Rogue_Ten Chosen One

    Member Since:
    Aug 18, 2002
    star 7
    basically peter hitchens was right (ugh, i know) when he said that the US basically missed the opportunity for meaningful gun control in about the 20s - we went for alcohol prohibition instead, which actually increased the gun violence problems
    Last edited by Rogue_Ten, Jan 3, 2013
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  12. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Blackstone's commentiaries actually provides some of those details of how things were defined under English law. They were essentially the definitive book on what English law was at the time. They were the basic text used by lawyers (and actually sold far more copies in America than in England), and were heavily quoted and cited throughout the Constitutional Convention. Blackstone's Commentaries were also used as the basis for the Supreme Court's landmark decision in Marbury v. Madison, creating the underlying framework of the Supreme Court's interpretive powers. They were used heavily to build support for ratifying the Constitution, and also in criticism of the Constitution as it was originally proposed (which led to the Bill of Rights, which were also heavily based on Blackstone).

    As for your "plain language" argument, the Blackstone commentaries help identify what that "plain language" meant at the time it was written. Even the Supreme Court in Miller could identify how the militia was interpreted at the time:
    In fact, by the standards set forward in Miller, there's absolutely no basis to prohibit AR-15s (or even full-auto M16s or M4s), as those are arms "of the kind in common use" for military service.
    Last edited by Kimball_Kinnison, Jan 3, 2013
  13. SuperWatto Manager Emeritus

    Member Since:
    Sep 19, 2000
    star 5
    And again, not answering difficult questions from yesterday, just a-wallin' on.
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  14. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Just as you've avoided questions from me. It's clear that you like to misrepresent what I say, so why should I bother responding when you'll just twist it around anyways?

    I'll get to your questions when I get to them. If I feel like it.

    EDIT: Besides, you didn't really ask any questions in your last post. The 5 that you did ask all appeared to be rhetorical, except for possibly the last one. They were:
    In response to the last question, hunting is one of the biggest benefits from firearms. It helps maintain healthy deer populations (among other animals), provides millions of pounds of food to people (many of whom are low income), and the fees for licenses go to support countless conservation efforts. A significant portion of the meat collected from hunting goes to help the needy, courtesy of programs like Hunters for the Hungry.

    It is both lawful and a huge benefit to society. That's not a shifting of the goalposts at all.
    Last edited by Kimball_Kinnison, Jan 3, 2013
  15. SuperWatto Manager Emeritus

    Member Since:
    Sep 19, 2000
    star 5
    I don't have the time to outwall you. You seem to, though.
  16. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Read my edit, and you'll see I answered the only question you actually asked in the only post I didn't respond to yesterday.
  17. SuperWatto Manager Emeritus

    Member Since:
    Sep 19, 2000
    star 5
    Except I will not let you accuse me of goalposting and let it slide, KK. You can't have your cake and eat it too [face_batting]
  18. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    I missed this edit from Jabba:
    I;m sorry, but I've provided you with a plethora of sources and examples supporting the Heller interpretation of the Second Amendment. Where are your sources? Even Miller (the prior Supreme Court precedent that you want to rely on) doesn't support the sort of restrictions that you want. As I said, under Miller's criteria, AR-15s (or even M16s) are fully protected by the Second Amendment, as they represent arms "of the kind in common use" for military service.

    In summary of the evidence I've offered:

    The historical context of the Second Amendment supports it being an individual right. That context includes the English Bill of Rights of 1689 and Blackstone's Commentaries, which provided the basis for the Colonies' complaints against Great Britain (and the basis for the rights that they chose to protect against infringement).

    The militia consisted of all able-bodied men who were expected to provide their own privately-owned arms.

    Numerous state constitutions treated the right to keep and bear arms as an individual right.

    The Supreme Court cited the right to bear arms as an example alongside other individual rights in 1857.

    US v. Miller didn't allow unlimited government regulation (let alone prohibition) of firearms. At worst, it limits the Second Amendment individual right to arms "of the kind in common use" for military service. Whether or not a specific firearm (including the short-barreled shotgun at issue in the case) meets that criteria was not decided at that time.

    Heller is consistent with the historical context that led to the adoption of the Second Amendment as well as the interpretations of that Amendment prior to 1929. It's not incompatible with the actual holding in Miller.
  19. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Then stop goalposting. :) If you don't do it, I won't accuse you of it.
  20. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    My point is that Blackstone is not a controlling authority, more an accepted dictionary of the law, although true maybe that distinction is blurry, particularly in a case like Marbury. Like all SC justices after him, Marshall uses whatever's handy for rendering a decision, in this case conjuring up the U.S. SCt jurisdiction over constitutionality. I'd still like some detail about what was meant by "defence, suitable to condition and degree and as allowed by law."

    It seems to me that the operative definition of defence is focusing on common defence for communal protection against outside enemies or even personal protection when law enforcement is not more widely available, but that the evidence that personal protection in a non-frontier setting was the intended focus is thin.
  21. harpua Chosen One

    Member Since:
    Mar 12, 2005
    star 8
    You would seriously shoot a hungry person after a disaster? You would actually consider taking a person's life over food?
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  22. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    What are your sources for that? Blackstone might not be authoritative, but it is at least a persuasive authority, based on how it was utilize by those who wrote the Constitution and Bill of Rights.

    You provide a lot about how you want it to be interpreted, but you don't provide much in the way of sources for why it should be interpreted that way. Even your "plain language" argument has to be tempered by how that plain language would have been understood in 1791.

    If that food is necessary to provide for my wife and children during a disaster, you can count on it.

    If we have extra, we would be willing to share if asked. But a person who would steal (rather than ask) cannot be relied upon to leave enough for us. Should I let my family starve because someone else wanted our food more? My first responsibility is to take care of my family.
  23. SuperWatto Manager Emeritus

    Member Since:
    Sep 19, 2000
    star 5
    KK, I rarely ask rhetorical questions to intelligent people.
    - Do you think it makes sense to just prepare proposals on rifle restriction, when more than half of all murders are committed with pistols?
    - Do you think your 2nd Amendment is a boon or a curse?
    - Do you think that Heller ruling is a boon or a curse?
    - Do you agree that this is a discussion about guns, not just rifles?
    - Do you agree that your claim that guns are primarily used for sport is unfounded, and that basing your claim on US figures alone is incredibly disingenious - exactly because of the problem we are discussing?
    - Where have I been goalposting?
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  24. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    No, I don't, as I've already said before (which is why I've argued against it).
    I think the Second Amendment protects an important individual right. As such, it is better than the alternative.
    I think the Heller ruling has some issues (particularly with how they kicked the can down the road), but that it is generally a good ruling.
    I agree it is about more than just rifles, however you cannot just treat all guns as if they are the same.
    I completely disagree with this. In the US, guns are primarily used for sport, by at least an order of magnitude more than any other purpose. As the main thrust of this discussion has been focused on the US, then it is a shifting of the goal posts to try and incorporate statistics from outside the US.
    See above.
  25. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    no, it doesn't.

    but I'm still curious about the details of "defence, suitable to condition and degree and as allowed by law." I'd say that common practices arising over centuries in England with the rise of the middle class and walled towns probably dictated numerous restrictions on possessing and carrying arms in an urban setting, and that these kinds of developments and the differences between urban and rural areas, between well-settled lands and frontier areas was apparent to the constitutional authors and taken into account.