SCOTUS Strikes Again!

[Davian93]

DC Handgun Ban Struck Down By High Court (http://www.msnbc.msn.com/id/25390404/)

So thoughts anyone? Personally I'm happy with the ruling. Legal guns do not increase crime levels...illegal ones do.

[SauceyBlueConfetti]

[Legal guns do not increase crime levels...illegal ones do.


guns don't kill people, the itty bitty bullets piercing various body parts are the culprit.

my take...not a big gun fan. I look at it this way. You put me in a room with cheesecake, creamsicles, twinkies, donuts, almond mocha fudge ice cream, strawberry shortcake and on and on...eventually I am gonna eat one.

I don't care if responsible people sit in that room. They might eat one thing. Or even two. But chuckleheads of the word abound and you put the right person in there they are gonna eat EVERYTHING.

so yeah, more guns = potential danger, crime and death.

I don't care for the idea of less gun control

[Davian93]

SBC...I like your analogy though I feel it to be flawed. Legal gun owners very rarely commit crimes...the number of gun related crimes in DC didn't change with the ban on handguns. This ruling simply allows law-abiding citizens to defend themselves against those who would threaten their safey illegally. Historically the higher percentage of legal gun ownership there is in an area, the lower the crime rate.

This doesnt make it legal for everyone to own a gun but it does allows those that pass the background checks etc etc to do so.

[Davian93]

Please allow me to introduce Anthony Kennedy (http://en.wikipedia.org/wiki/Anthony_Kennedy), the latest swing vote on the Supreme Court. I have to say I pretty much agree with around 80% of his stances on the issues. Thank you Ronnie Reagan for appointing him. Note: He was the swing vote on this ruling as well as yesterdays...

[JSUCamel]

My brother was telling me of a town in Georgia where it's the law to own a gun. He says there hasn't been a murder there since the law was passed 25 years ago. Apparently, no one's going to attack anyone if they know the other person has a gun.

I'm not sure how true it was and I don't recall the name of the town off-hand, but i thought it was interesting.

I personally don't have a stance on the gun-control issue. I just don't think about it.

[Hopper]

My brother was telling me of a town in Georgia where it's the law to own a gun. He says there hasn't been a murder there since the law was passed 25 years ago. Apparently, no one's going to attack anyone if they know the other person has a gun.

I'm not sure how true it was and I don't recall the name of the town off-hand, but i thought it was interesting.

I personally don't have a stance on the gun-control issue. I just don't think about it.

Camel -

I live in that town. It's Kennesaw, GA (http://en.wikipedia.org/wiki/Kennesaw,_Georgia).

[Davian93]

Camel -

I live in that town. It's Kennesaw, GA (http://en.wikipedia.org/wiki/Kennesaw,_Georgia).

Doesn't Switzerland have similar requirements for owning property?

[Sinistrum]

I'm with Davian on being all for this ruling. I think it was especially important that it was decided on 2nd Amendment grounds, and the SCOTUS didn't take the usual cop out route of deciding these kinds of cases on commerce clause or due process clause grounds. The case has completely resolved the legal (as opposed to philosophical which obviously will never be resolved) debate about whether the 2nd amendment confers an individual right or is a grant to the states in favor of individual rights.

A couple of important points to note; the case didn't completely overturn all gun regulation, such as the requirement to get a license to get one. It also did not address issues such as assault rifle ownership. It just forbid outright bans against hand guns used for personal defense and rifles used for hunting as was the case with the D.C. gun ban.

[Ozymandias]

The problem is that illegal guns were at some point legal guns... If I buy gun A, and its a legal gun, and someone steals it, it doesn't become gun B... its still the same gun that I bought and didn't take proper care of. Anything done with that gun is still partially my responsibility.

[Weird Harold]

Doesn't Switzerland have similar requirements for owning property?
Not exactly, the Swiss require all men of miltary age to keep and maintain a military weapon -- assault rifle -- as part of their universal military service requirement. It has nothing to do with property ownership.

[Gilshalos Sedai]

Anything done with that gun is still partially my responsibility.

Why? They would have gotten A gun anywhere. It didn't have to be yours.

[Davian93]

Not exactly, the Swiss require all men of miltary age to keep and maintain a military weapon -- assault rifle -- as part of their universal military service requirement. It has nothing to do with property ownership.

What I get for talking out my arse I suppose...Thanks for the clarification, WH.

[Weird Harold]

The problem is that illegal guns were at some point legal guns... If I buy gun A, and its a legal gun, and someone steals it, it doesn't become gun B... its still the same gun that I bought and didn't take proper care of. Anything done with that gun is still partially my responsibility.
True only in the sense that I don't know of anywhere that is illegal to manufacture guns.

However, the vast majority of guns in Washington DC were smuggled into the city for sale to criminals by gun-runners and were never privately/legally owned except by the manufacturer. The gun runners buy them illegally in other states (and other countries for AK and SKS rifles) and smuggle them into DC (and other cities) to sell on the black market.

I'm sure if you were to do a bit of research, you'd be able to find the current percentage of "guns-stolen-from-private-owners" used in crimes -- the last time I saw the official statistic from the FBI, it was something on the order of 10%.

[Davian93]

People use legal prescription drugs illegally too...especially when they are stolen from the legal prescription holder...should we ban those as well?

[Weird Harold]

Why? They would have gotten A gun anywhere. It didn't have to be yours.
There are some legal precedents for a gun owner not properly storing a gun that was then used to kill someone being convicted of criminal negligence.

Up to a point, it's a principle that most gun owners accept -- gun owners are responsilble for keeping their guns safe and secure.

[Davian93]

There are some legal precedents for a gun owner not properly storing a gun that was then used to kill someone being convicted of criminal negligence.

Up to a point, it's a principle that most gun owners accept -- gun owners are responsilble for keeping their guns safe and secure.

DC already has trigger lock and/or gun safe requirements in place so that is not really an issue for them. To own a gun in DC you have to do the following:

1. Keep it disassembled

or

2. Have a trigger lock.

Those requirements won't change with this ruling.

[Zaela Sedai]

I agree with gun ownership... ours is in our safe unloaded...so when the robber comes I'll have to ask him to wait so i can open the safe and load the gun...then of course make sure he dies inside my house.

[JSUCamel]

yeah, Kennesaw, that's it.

[Sinistrum]

Dav, if you look, those requirements were also overturned by the ruling.

[Crispin's Crispian]

I agree with gun ownership... ours is in our safe unloaded...so when the robber comes I'll have to ask him to wait so i can open the safe and load the gun...then of course make sure he dies inside my house.
That brings up a good question for gun owners. How do you balance owning a gun for protection and keeping it safe from unintended use? I'm asking for real answers, not rhetorically.

I'll go on record as saying that I'm glad the SC made a ruling that is, as Sinistrum said, not a cop-out. It's good to have actual principles to work with rather than equivocations and exceptions to some vague rule.

I'm still on the fence about "gun control." A big part of me thinks citizens should be allow to defend their homes with guns, if they choose. Another big part thinks that having guns around the house is highly dangerous and usually unnecessary. That's why I asked the question above--if I were to own a gun, I would want it both ready at-hand, and locked away safely from my kids or from home invaders. :confused:

[Gilshalos Sedai]

Bryan can't answer this at work, so I'll do my best to answer for both of us. We intend to rear our children with knowing where the gun is, knowing how to operate it, and absolutely, positively without a doubt making it clear IT IS NOT A TOY. They won't be allowed to tell their friends about it and there will be dire consequences if we find out they did mention/bragged about it.

We also intend to get a really huge safe so a crook can't just walk off with our gun safe tucked under his arm.

[Davian93]

Dav, if you look, those requirements were also overturned by the ruling.

Oh...I didn't get to read the full decision...All I got was the blurb about it when it was Breaking News.

[Sei'taer]

You didn't seem to concerned about the gun in Portland, Dog, so I figured it wouldn't be the kind of thing that bothered you.


How do you balance owning a gun for protection and keeping it safe from unintended use? I'm asking for real answers, not rhetorically.


When I'm driving thru Memphis (Second only to Detroit in crime), it's right where I can get it easily. At home it is in a gun safe. My .22 rifle however is on top of my dresser in easy reach and has a quick release trigger lock on it, the problem is that trigger locks are not very good, so I have taught all my kids gun safety...(yes, even the youngest is aware of the guns and aware that they are not toys). If someone was already in the house, it'd be useless, but if I hear them from anywhere but in my bedroom, I have a good chance of being ready. It has less power than my pistol, but also holds more ammo, so I think it's a good trade-off, it is also a lot easier for my wife to handle as she has hand and wrist problems. I also have a baseball bat hanging under the bed with the handle in reach if I turn over, it's a very light aluminum peewee bat, but its quite capable of a lot of damage, and if I can keep a person tied up with it, then my wife has a chance to get to the rifle, or get the kids and get out...either way. I prefer that she get out and thats what I always tell her.

So, as to how I balance it? I teach about it...thats the best way.


Edit: I'm all for gun ownership, but I think everyone already knew that.

[Crispin's Crispian]

You were taking a huge risk, ST. Cops in Portland aren't just gun happy, they're also tazer happy. You could brandish a huge slice of pizza or a copy of "Cybernetic Samurai" and seventeen of them would show up to taze you into next Thursday.

Just an aside...I'm curious if other people think the same way as me and ST, and whether it's gender related.

That whole scenario where you plan out exactly what you might be able to do with a bat to buy time for the gun, and whether you will have time if the person is in the hall, or outside the window, etc....I do that shit all the time. I must have 20 scenarios for protecting my family bouncing around in my head in any given night.

None of them involves a gun at this point, at least not one I own.

[Sei'taer]

You were taking a huge risk, ST. Cops in Portland aren't just gun happy, they're also tazer happy. You could brandish a huge slice of pizza or a copy of "Cybernetic Samurai" and seventeen of them would show up to taze you into next Thursday.



I didn't have a gun...the dude who served us at Rocco's did. The guy with the shaved head. How the hell was I supposed to get one up there on a plane?

[Sodas]

I don't see a problem with the court's ruling. Sure, pro-gun rights won the day. However, it will be interesting to see the pro-control side use it as an issue to fundraise for the fall.

[Crispin's Crispian]

I didn't have a gun...the dude who served us at Rocco's did. The guy with the shaved head. How the hell was I supposed to get one up there on a plane?
That explains the powder flavor on my pepperoni.

I figured you just brought one of SoE's after he warned about how dangerous Powell's is.

[Weird Harold]

That brings up a good question for gun owners. How do you balance owning a gun for protection and keeping it safe from unintended use? I'm asking for real answers, not rhetorically.

I've never used a gun safe; my .357 MAgnum hangs in its holster just inside my bedroom closet -- and yes it's loaded: two snake rounds and four 125 gr hollow points. The snake rounds are for a response that doesn't endager my neighbors with over-penetration (they are potentially lethal to a human at close range.) The four hollow points are for those who aren't discouraged by the snake rounds.

I currently live alone, so there's no concern about it being accessible to others.

When my daughters lived with me, they both knew where it was and how to use it. Part of knowing how to use a gun is knowing how to keep it from firing when you don't want it to.

As child, I can't remember a time when there weren't three high-powered rifles, a single-shot .22LR rifle, a pump action 12 Ga shotgun, and a Colt M1911A1 in the gun rack in the hallway just outside by bedroom door. The ammunition was in the cabinet portion of the gun rack.

Me, my sister, and all four younger brothers all knew where the guns were, where the ammunition was, and how to lad and fire each and every gun on that rack -- there was no mystery to them and, except for hunting season, no particular desire to touch them -- in fact the most common occasion for even taking notice of the gun rack was the weekly chore of dusting it.

As far as I'm concerned, the only problem with guns in America today is that almost nobody knows anything about guns so the gun control advocates have fertile ground for their fear-mongering.

[SauceyBlueConfetti]

People use legal prescription drugs illegally too...especially when they are stolen from the legal prescription holder...should we ban those as well?

not really a good comparison....Rx is CONTROLLED and REGULATED and requires a prescription written by a doctor and filled by a licensed pharmaceutical distributor. That kind of supports the idea of regulating gun ownership, distribution and purchase requirements.

And drugs deemed inappropriate or not supported by research are NOT approved by the FDA therefore they are banned.

Also, to Sei'taer's comments...I live 10 minutes outside of Detroit. I have never in my life felt my life in enough danger to think...wow I wish I had a gun. I would prefer the crazies of the world have a bit of restriction put on them. If that means regulation in regards to owning/buying/selling/using weapons, more power to the regs. No argument will ever change my mind on that either.

[Sei'taer]

Also, to Sei'taer's comments...I live 10 minutes outside of Detroit. I have never in my life felt my life in enough danger to think...wow I wish I had a gun. I would prefer the crazies of the world have a bit of restriction put on them. If that means regulation in regards to owning/buying/selling/using weapons, more power to the regs. No argument will ever change my mind on that either.


Thats fine with me, I already have my guns so any new stuff won't affect me. I have only felt threatened once, and I didn't have a gun at the time. I ended up losing a lot that day. It will never happen again, ever. Some people are gun people and some are not. I like my guns.

[Yuri33]

The ruling was correct. It's SCOTUS's job to interpret the law in the context of the Constitution, and I think the Constitution is fairly clear on the right to bear arms.

Of course, I support a repeal of the 2nd amendment, but that's not about to happen any time soon. You'll never see a gun in any household I have influence over.

[Sei'taer]

I just want to say to Yuri and Saucey both that I am not for or against you owning a gun. I do and I don't care if you do. I'm not a "proud" gun owner any more than I am a "proud" computer owner. I own guns because I am allowed to by the costitution, it's a simple as that.


You'll never see a gun in any household I have influence over.

You'll never see a vegetarian in any household I have influence over. Is that something to be proud of? No, it just is.

I'm not trying to start a fight, it just seems silly to make a statement like that.

[Yuri33]

I'm not trying to start a fight, it just seems silly to make a statement like that.

I don't see any difference between my statement and what you just said:

Some people are gun people and some are not. I like my guns.

You like guns. I don't.

[Sei'taer]

Perfectly acceptable.

All I was saying is it isn't a source of pride. It just is what it is.

[Yuri33]

Yup, I'll defend your right to bear (reasonable) arms, up until the Constitution says otherwise. The only pride involved here is pride in the Constitution.

[Sei'taer]

agreed

[irerancincpkc]

It's a horrible ruling. Those five justices went against the Constitution. If they would have done their jobs, and not injected their poltical beliefs into it, and followed the Constitution like they were supposed to, we would have the right ruling. If only...

[Davian93]

It's a horrible ruling. Those five justices went against the Constitution. If they would have done their jobs, and not injected their poltical beliefs into it, and followed the Constitution like they were supposed to, we would have the right ruling. If only...

I'm sorry...but WHAT?!?

How was the ruling against the Constitution Spammer???

"The Right of the PEOPLE to bear arms shall not be infringed."

That's what our Constitution states in the 2nd Amendment. The people's right, not the state, or the militia etc etc...its the People's right.

[irerancincpkc]

The SC decided a 32 year old ban on handguns and the demand that firearms in the home be kept locked or disassembled was unconstitutional based on the Second Ammendment.

The Second Ammendment states "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Despite crap being spewed about this by the NRA and other similar right wing organizations, the interperation of this is quite simple. To build a state militia, you are entitled to keep and bear arms. Those arms would have to be the kind in use in 1791 when the Bill of Rights was passed. The musket, and similar weapons of that time.

Those five supreme court justices decided to just ignore the militia part of the Second Ammendment.

[Davian93]

No they decided to interpret it as the Founders meant it, people have a right to bear arms to defend themselves from aggression. The militia part is an explanation but not the end all be all of the Amendment. Also, no where in the Constitution does it ever imply the "the right to bear those arms that were technologically available at the time of this document...seriously that's your argument?

[Davian93]

Besides, a one-shot pistol circa 1791 would have been illegal to maintain in working condition in DC prior to this ruling as it would be considered a handgun...so nice try.

[Spidy]

If SCOTUS wanted aa gun issue, this ain't the one from whatever tangent you draw that premise in. To me, and I find it very hard to understand, although I modify that by North American natives having cover, bow and subsequently horse and gun, the indigenous inhabitants were a threat to peaceful expansion, and were a far more strategic foe than the Australian Aboriginal without said weapons, geography, mode of transport etc.

It is the Militia and home/personal gun ownership that I find difficult to correlate. Who in a militia sense (Not Army/Navy) requires the people to raise arms and go to go to war with? Canada? Mexico? Yourselves? Does the Civil War have aa profound effect on the consitutional interpretation becuase someone feels it could happen again?

[Sei'taer]

It is the Militia and home/personal gun ownership that I find difficult to correlate. Who in a militia sense (Not Army/Navy) requires the people to raise arms and go to go to war with? Canada? Mexico? Yourselves? Does the Civil War have aa profound effect on the consitutional interpretation becuase someone feels it could happen again?


The way I understand it, and I am not a good historian (hopefully someone will come along soon) the militia part was put in because it was basically the militias that helped win the revolutionary war. At the time, they wanted to be able to have that ability if it was ever needed again. Some people say that the national guard that each state has, is a militia. I think it probably used to be that way, but now they are just another branch of the army, or at least they are treated that way.

So, basically, to answer your question, we are supposed to be able to go to war against any of those things you mentioned.

[Davian93]

You are pretty much correct Taer. The National Guards were all nationalized around the turn of the last century I believe (I could be way off here) but before that it was as you stated...the guards were the militia. For example, at the start of the Rebellion (ahem War of Northern Aggression), the regular army was maybe 20,000 strong, Lincoln raised 100,000 volunteers and called up the state militias to fill that void. Hence we get things like Chamberlain and the 20th Maine's charge at Gettysburg or the 51st Massachusetts being gutted outside Fort Wagner, etc etc etc.

Some states still have actual Militia's in addition to their "National" guard units. Vermont, for example, has the Vermont State Guard (different from the national guard) and that acts as an emergency militia when the actual Guard is deployed (like the last few years). They do emergency response, floods, etc etc and are completely unpaid volunteers though they have ranks, discipline and required attendance like a military unit...very Minutemanesque actually.

[Spidy]

So therefore, isn't the 2nd Amendment (is this the gun one) an anachronism? Has there been any amendments proposed to the second as opposed to just straight out abolishment?

Are the militia clauses justified today? Are your founding fathers prescient enough to know that Geography would at some stage, never be the defining issue to establishing harm to the US?

[Sinistrum]

In answer to your question, no Spidy, there hasn't been any serious effort to amend the 2nd Amendment either to modify or abolish it.

To build a state militia, you are entitled to keep and bear arms.

And who is it that the militia is made of? Ah yes, that would be the PEOPLE. It does not say "people enlisted in the military" or "people signed up for the national guard." It just says people. As in all people. Everywhere in the nation. It's purpose was to provide a pool of already armed people from which to draw a militia if necessary. Not to arm people after they had been drawn into the militia at the moment the necessity arose. Thus the court's interpretation of the original intent is correct.

Those arms would have to be the kind in use in 1791 when the Bill of Rights was passed. The musket, and similar weapons of that time.

Except this interpretation would be DIRECTLY in violation of Marybury vs. Madision. For those that don't know, this was the first Supreme Court case in which the Court exercised the power of judicial review of Congressional and Presidential acts, and in which it stated that the constitution is basically a set of guidelines that is not rigid or inflexible. The court went on to elaborate that it's meaning would change over time to adapt to changing circumstances. I love how most liberals practically eat this case up when it comes to issues such as abortion or gay marriage, but when it comes to an issue that they don't like, such as their irrational phoebia of guns, it's back to strict constructionist interpretations. If you're going to embrace the "constitution is a living document" argument, the least you could do is remain consistant in its application.

[Crispin's Crispian]

And who is it that the militia is made of? Ah yes, that would be the PEOPLE. It does not say "people enlisted in the military" or "people signed up for the national guard." It just says people. As in all people. Everywhere in the nation. It's purpose was to provide a pool of already armed people from which to draw a militia if necessary. Not to arm people after they had been drawn into the militia at the moment the necessity arose. Thus the court's interpretation of the original intent is correct.

It also says that militia should be "well regulated," which would imply that the rules by which the militia is formed should be formalized. Are they?

It would also stand to reason that the arming of the citizens should also be well regulated. Maybe this is why they didn't strike down gun licensing?

In my mind, the whole reason the Second Amendment is so hotly debated is because it was poorly worded from the beginning.

[Weird Harold]

The SC decided a 32 year old ban on handguns and the demand that firearms in the home be kept locked or disassembled was unconstitutional based on the Second Ammendment.

SCOTUS cannot decide on any law unless a test case is appealed to them. It isn't their fault that it took 32 years for a viable test case to make it through the expense and trouble of the multiple appeals required for a case even be considered by SCOTUS.

The Second Ammendment states "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Despite crap being spewed about this by the NRA and other similar right wing organizations, the interperation of this is quite simple.

Simple, yet not so simple.

Simple because the use of "The right of the people" is very consistent throughout the bill of rights as meaning the rights of individuals. Whatever justification or qibbling over the militia clause, in order to be consistent with the usage of "the right of the people" elswhere, the right "to keep and bear arms" is is an individual right which "shall not be infirnged."

Not so simple because the language has changed over 250+ years. Contemporary documents use the word "regulated" to mean either "equipped and trained" or, more often, simply "Equipped."

The meaning of "Militia" has changed, also, although not quite as much. An 18th century "Militia" was closer to the infamous "Committees of Vigilance" in 1850's California or 1870's Montana -- more commonly known as "Vigilantes." An 18th century "Militia" was all able bodied males of a community working in concert to protect the community -- which was the stated purpose of (and real need for) Vigilance Commitees.

To build a state militia, you are entitled to keep and bear arms. Those arms would have to be the kind in use in 1791 when the Bill of Rights was passed. The musket, and similar weapons of that time.

In order to fulfill both the "well equipped and trained" interpretation and the consistant usage of "right of the people," the Second Ammendment would have to be interpreted as the Swiss compulsory military service law is interpreted -- every able bodied male between the ages of 18 and 48 must keep and maintain a weapon consistent with current military issue of personal arms; eg an assault or battle rifle with standard military caliber rifle ammunition and/or a semi-automatic pistol with a high capacity magazine of 9mm or 10mm caliber.

In other words, under a strict "militia" interpretation of the Second Ammendment, the guns most often cited as being protected -- hunting and fowling long guns and sport shooting weapons -- would be precisely the weapons NOT protected and the most feared types of weapons -- automatic handguns and assault weapons -- would be the ones explicitly protected!

Personaly, I a ruling that recognises the consistent usage of "the right of the people" as meaning indivual rights of the type described in the Declaration of Independence: "Inalienable Rights" which cannot be granted by a government, but only infinged upon or protected by government.

[Frenzy]

It also says that militia should be "well regulated," which would imply that the rules by which the militia is formed should be formalized. Are they?

It would also stand to reason that the arming of the citizens should also be well regulated. Maybe this is why they didn't strike down gun licensing?

In my mind, the whole reason the Second Amendment is so hotly debated is because it was poorly worded from the beginning.
You COULD interpret the 2nd amendment to mean gun ownership is allowed only as part of a militia, but that goes against 200 years of case law.

i own two guns, both in my safe in the garage. One's a shotgun, the other's a handgun. The ammo is in a separate safe. So why do i own them? It isn't for safety, it's for the lawless chaos that'll descend in a major natural disaster. Defense from home invasion in my house are the narrow halls, the toys on the floor, and the block of knives i keep on the kitchen counter. And the baseball bat in my closet. And my knowledge of human anatomy combined with my steel-toes and a mother bear's attitude.

[Crispin's Crispian]

Defense from home invasion in my house are the narrow halls, the toys on the floor, and the block of knives i keep on the kitchen counter. And the baseball bat in my closet. And my knowledge of human anatomy combined with my steel-toes and a mother bear's attitude.
Not that I'm looking forward to it, exactly, but I'll have trouble keeping a straight face the day a burglar jimmies open my front door, hitting a electronic toy garbage truck and sending it honking into a tower of wood blocks (AKA the cheese factory), which subsequently falls onto the World's Loudest Toy Piano, which for some reason plays only Christmas songs and a sped-up version of "Let It Be".

Who needs Brinks?

[Ivhon]

Bit late on this one.

This is a rare case where I applaud SCOTUS - probably because this is one of those conservative planks in my platform.

Anyway. I like the ruling, I especially like that they did not cop out.

For what it's worth, my guns are in no way shape or form for self defense. I use them for entertainment :D

Gun safety has been, is, and will be an issue that will be absolutely zero tolerance. It will be trained early and the discipline is strict (I sometimes confuse my friends with how focussed and absolutely no-bs I am around guns when the rest of the time Im so slack).

[Yuri33]

If you go back and read all of the amendments, with the exception of prohibition (and it's repeal) and the 2nd amendment, they were all aimed at establishing, improving, and refining our Constitutional Democracy. And you can make a case that when the Constitution was adopted, the 2nd amendment was necessary for American Democracy.

Free speech, free press, free religion, due process, equal suffrage, orders of succession, etc.--all are needed for a functional democracy, back then and now. But with regards to guns, things are different now, the right to bear arms is most definitely not needed for a stable democracy.

That's why I support a repeal of the 2nd amendment. I support SCOTUS's ruling, because they were interpreting the Constitution as it is written and as it was intended. But we know there are parts of the Constitution that are outdated (many of them were corrected by amendments). I believe the 2nd amendment is one of those.

[Sinistrum]

That's why I support a repeal of the 2nd amendment.

Good luck with that Yuri. Let me know how that campaign turns out. :p Just do yourself a favor and don't hold your breath on this one.

[tanaww]

From our hero, Stephen T. Colbert, DFA
Stephen and Sweetness (http://www.comedycentral.com/colbertreport/videos.jhtml?videoId=175029)
Stephen goes to DC (http://www.comedycentral.com/colbertreport/videos.jhtml?videoId=175033)

And, since B's going to Tejas, who here thinks she needs a Ten Gallon hat, a pair of Tony Llama's and a .45 long?

[Ozymandias]

Don't see whats wrong with the Second Amendment. It holds as true today as it did then, which is the beauty of the Constitution and the Bill of Rights.

Are traditional militias necessary anymore? Not really, but the peace of mind it might grant is invaluable to many. Also, hypothetically, it also is a defense against the infringement of government on personal rights. A government which knows its citizens are all heavily armed is less likely to act outside of its rule of law than a government who knows its people are helpless lambs. And that aspect worked... look at the Civil War and American Revolution! Fought almost entirely by militias, individuals who were armed were able to uphold the authority of their state, or defend against increasingly ridiculous infringement by their government.

[Weird Harold]

But with regards to guns, things are different now, the right to bear arms is most definitely not needed for a stable democracy.

That's why I support a repeal of the 2nd amendment.

Yuri, why do wish to make me a criminal?

The Framers of the Consitution clearly believed in "Natural Rights" and the Bill of Rights was opposed because Alexander HAmilton believed that it would encourage the kind of thinking your'e indulging in -- That repealing the explicit protections would remove the rights explicitly protected.

It would NOT remove the right, it would only remove the explicit protection of that right from government infringement. It seems to me that any attempt to remove the explicit protection of a natural right can only be a precursor to an attempt to abridge or suppress that natural right.

As far as "making me a criminal" -- That's exactly what would be the result of repealing the Second Ammendment because I've owned guns for most of my 59 years and neither I nor the guns have ever commited a crime. Yet if the second ammendment is repealed then I will almost immediately have to surrender my guns to a "buy back program" or become a criminal for simply continuing as I have for ~50 years and exercising my natural right to own anything I wish to own that does not infirnge on the natural rights of others.

The Second Ammendment does NOT just protect the right to won firearms, it protects the right to own anything that might cause a description of "armed and dangerous" -- that incluses knives, swords, nun-chuks, throwing stars, axes, tomahawks, longbows, crossbows, and cudgels (aka baseball bats.)

Simple ownership of those things does NOT endanger the rights or safety of others and should be no more infringed upon that your right to own a Toaster or TV (both of which potentially present a greater safety concern to neighbors than a handgun does -- especially in multi-family structure -- if they are not maintained and operated properly.

[Gilshalos Sedai]

The Second Ammendment does NOT just protect the right to won firearms, it protects the right to own anything that might cause a description of "armed and dangerous" -- that incluses knives, swords, nun-chuks, throwing stars, axes, tomahawks, longbows, crossbows, and cudgels (aka baseball bats.)

So, it gets repealed and John Snow gets declared an outlaw for breathing?

[Weird Harold]

So, it gets repealed and John Snow gets declared an outlaw for breathing?
Could happen. :D

The point is that the second ammendment doesn't grant a right, it protects a right that exists independently of the Constitution to posses the means to defend your person, community or country -- AND defend yourself from your community or country at need.

[Terez]

It isn't for safety, it's for the lawless chaos that'll descend in a major natural disaster.
I've never owned a gun, but I can't tell you how nice it was to have one lent to me by a gun freak after Katrina. No one had power or phones in a 100 mile radius, we had to leave the windows open or suffocate, and the cops were busy. I could hear automatic gunfire in the night - even with the gun nearby I didn't sleep well.

[Yuri33]

Yuri, why do wish to make me a criminal?

This is the kind of hyperreaction I expected.

That repealing the explicit protections would remove the rights explicitly protected.
...
It seems to me that any attempt to remove the explicit protection of a natural right can only be a precursor to an attempt to abridge or suppress that natural right.

I never claimed to want to remove or even abridge the right, only that to enumerate it in the Constitution is unnecessary. To claim I want to go further than that is putting words in my mouth.

. Yet if the second ammendment is repealed then I will almost immediately have to surrender my guns to a "buy back program" or become a criminal for simply continuing as I have for ~50 years and exercising my natural right to own anything I wish to own that does not infirnge on the natural rights of others.

This is ridiculous. The Constitution specifically disallows ex post facto laws to prevent such retroactive criminalization.

Simple ownership of those things does NOT endanger the rights or safety of others and should be no more infringed upon that your right to own a Toaster or TV

This reasoning leads down a slippery slope--why should my right to machine guns, RPGs, and rocket launchers be abridged as well? Simple ownership doesn't put anyone in danger. Why not allow me to carry guns concealed on my person rather than out in the open? That doesn't inherently put anyone in danger, right?

it protects a right that exists independently of the Constitution to posses the means to defend your person, community or country -- AND defend yourself from your community or country at need.

Everyone has a natural right to defend themselves, but not in any manner they see fit. The State has a compelling interest in limiting certain methods of defense, just like the State has compelling interest in regulating safety standards for toasters and TVs.

And if you want to go beyond defending your person or your loved ones, if you want to protect and defend community or country, go sign up for the police or the military (I know that you did exactly that, WH, and I commend you for it). I have no problem arming the police and military to the teeth, because the law\government itself creates those roles and necessitates those weapons to do the job.

If you read my original argument, my point for repealing the 2nd amendment had nothing to do with the desire to limit gun ownership or even increase gun control. It has to do with the fact that the purpose of the Constitution, the very reason it was drafted, was to create a democracy. Every clause, every amendment, is essentially aimed at establishing, refining, and improving this democracy. An enumerated right to bear arms, no matter what those arms are, is not necessary to the functioning of a stable democracy. It was obviously needed at the time of the drafting (Revolutionary War), but that doesn't apply any more. The exclusive means for citizens to fight for our country is the military, a professional army, not private citizens taking up arms in times of need. Even when our forces are insufficient, a draft is created to conscript people into the military, to create more professional soldiers.

Bearing arms should be an unenumerated right, which is covered by the 9th amendment. The extent to which our society regulates ownership of arms should reflect the values of our society--the people should vote (by referendum or by representative) on how much or how little regulation should exist.

[Weird Harold]

I never claimed to want to remove or even abridge the right, only that to enumerate it in the Constitution is unnecessary. To claim I want to go further than that is putting words in my mouth.

Originally Posted by WH
. Yet if the second ammendment is repealed then I will almost immediately have to surrender my guns to a "buy back program" or become a criminal for simply continuing as I have for ~50 years and exercising my natural right to own anything I wish to own that does not infirnge on the natural rights of others.

This is ridiculous. The Constitution specifically disallows ex post facto laws to prevent such retroactive criminalization.

With the continued campaigns by anti-gun lobbies to ban handguns, "assault weapons," "cop killer bullets" and pass every possible infringement to bearing arms they can weasel past the Second Amendment do you really think they would let a little thing like ban on ex post facto laws would stop them from making a buy-back program mandatory?

A mandatory buy-back law wouldn't even be an ex post facto law making prior gun ownership illegal, it just makes continued gun ownership illegal.

This reasoning leads down a slippery slope--why should my right to machine guns, RPGs, and rocket launchers be abridged as well? Simple ownership doesn't put anyone in danger. Why not allow me to carry guns concealed on my person rather than out in the open? That doesn't inherently put anyone in danger, right?

In the hands of a responsible person without any criminal intent, no, simple concealed carry of a weapon of any kind does not increase the inherent risk to others at all.

Can you provide any documented example of a gun in a shoulder holster that injured anyone in any manner while it remained in the shoulder holster?

Guns just don't jump out of concealment and start killing people, the people carrying them have to ACT in order for the gun to be a danger.

It is making an object illegal instead of an ACTION illegal that I object to.

Barring hazardous substances that present a clear and present danger if not properly stored and maintained -- EG poisonous chemicals that corrode their containers and spontaneously explode or spread toxic fumes -- I don't see any reason why ownership any object, weapon or otherwise by responsible private citizens should be banned.

Everyone has a natural right to defend themselves, but not in any manner they see fit. The State has a compelling interest in limiting certain methods of defense, just like the State has compelling interest in regulating safety standards for toasters and TVs.


Um, the "State" doesn't regulate safety standards for toasters and TVs; Safety Standards and certification comes from Underwriter's Laboratories, a private organization. The "State" only regulates the labeling and performance claims of appliances.

The State does have a compelling interest in defining self-defense and "excessive force" -- but it does NOT have a compelling interest in defining one form of deadly force as more heinous than any other form of deadly force.

I have no problem arming the police and military to the teeth, because the law\government itself creates those roles and necessitates those weapons to do the job.

If the criminals didn't have guns, the Police wouldn't need them. The police and military are both turning to more "less-than-lethal" weapons than just "guns." Most police-work doesn't require guns, merely the availbility of weapons which will eliminate the threat posed by a suspect.

It has to do with the fact that the purpose of the Constitution, the very reason it was drafted, was to create a democracy. ... An enumerated right to bear arms, no matter what those arms are, is not necessary to the functioning of a stable democracy. ...

Bearing arms should be an unenumerated right, which is covered by the 9th amendment.

First of all, the US is not and never has been a Democracy, it is a representative Republic. The framers of the constitution deliberately rejected a Democracy as leading to a Tyranny of the Masses, a la the French Revolution.

Alexander Hamilton argued against the Bill of Rights because they imply the rights enumerated would be considered more important than the unenumerated rights -- like the right to drink or drug yourself into insensibility and incompetence as long as you don't endanger others in the process.

Hamilton has been proven correct more often than not, which makes the enumerated rights even more important because the citizen's of the US have forgotten or rejected the concept of natural rights this country was founded on.

The extent to which our society regulates ownership of arms should reflect the values of our society--the people should vote (by referendum or by representative) on how much or how little regulation should exist.

There is no provision in the structure of the US government that allows for direct referendums and representation is for sale to the highest bidder -- and the anti-gun lobbiests are some of the highest bidders in the market.

IMHO, many unenumerated rights have been infringed -- some as seriously infringed as to make it to the status of "Constitutional" -- and the most egregious infringements are in the right of a responsible citizen to own anything that doesn't infringe on the natural rights of others (Drugs, Alcohol Stills, Decongestents, Antihistimines, Pornography, etc, etc, etc.)

The trend throughout the 20th Century and into the 21st is ever more towards banning inanimate objects that enable bad behavior rather than addressing the issue of the bad behavior itself.

Removing the explicit protection of the right to keep and bear arms in light of the constant infringement of unenumerated rights without expectation that the anti-gun lobby wouldn't immediately press for their stated goal of eliminating every firearm in the country. is disengenous at best if not outright hypocrisy.

[Yuri33]

With the continued campaigns by anti-gun lobbies...
...
Removing the explicit protection of the right to keep and bear arms in light of the constant infringement of unenumerated rights without expectation that the anti-gun lobby wouldn't immediately press for their stated goal of eliminating every firearm in the country. is disengenous at best if not outright hypocrisy.

I'm not going to comment on what other people would do or advocate, I'm arguing from first principles. You're own paranoia about the anti-gun lobby is irrelevant to the debate. Plus, the NRA and gun manufacturers are pretty formidable pro-gun lobbies as well, and certainly better funded.

A mandatory buy-back law wouldn't even be an ex post facto law making prior gun ownership illegal, it just makes continued gun ownership illegal.

Such a buy-back law would have to pass muster in local elections of candidates who either support or oppose such a law. The people ultimately decide for themselves.

Can you provide any documented example of a gun in a shoulder holster that injured anyone in any manner while it remained in the shoulder holster?

Sure (http://www.cpsc.gov/cpscpub/prerel/prhtml04/04155.html). But that's entirely beside the point. Can you provide any reason a responsible citizen, even in self defense, would need a rocket launcher?

Guns just don't jump out of concealment and start killing people, the people carrying them have to ACT in order for the gun to be a danger.

And if the objective is self defense, there's absolutely no reason to conceal your weapon. In fact, I would want any potential criminal to see that I'm packing. It's a big sign that says "don't you dare come after me." If you're concealing a weapon to potentially defend others from criminals, then you're deputizing yourself into law enforcement, and becoming a vigilante. If you want to protect people that way, join law enforcement or the military.

It is making an object illegal instead of an ACTION illegal that I object to.

We do that all the time. Exhibit A: controlled substances. I don't believe you'll find many people advocating the repeal of all laws banning crack. Possessing crack is certainly not enumerated in the Constitution, but society has elected individuals and advocated the passage of laws that ban crack. There's obviously no pro-crack lobby, but that's not why such laws were passed.

I agree, we must be careful as to the extent we regulate what can and cannot be legally possessed, but legitimate debate exists around certain items, including guns. Any device that allows one person to kill 10 people in 10 seconds when they only could have killed one person in 10 seconds deserves serious consideration and debate, responsible use or not. The ultimate degree of regulation or control over such items should lie with the people and their elected representatives.

Um, the "State" doesn't regulate safety standards for toasters and TVs; Safety Standards and certification comes from Underwriter's Laboratories, a private organization. The "State" only regulates the labeling and performance claims of appliances.

Then replace toasters and TVs with cars and motorcycles.

First of all, the US is not and never has been a Democracy, it is a representative Republic. The framers of the constitution deliberately rejected a Democracy as leading to a Tyranny of the Masses, a la the French Revolution.

That's merely splitting hairs. A representative Republic is a subset of a democracy (http://en.wikipedia.org/wiki/Democracy), and I think you know I meant that.

Alexander Hamilton argued against the Bill of Rights because they imply the rights enumerated would be considered more important than the unenumerated rights -- like the right to drink or drug yourself into insensibility and incompetence as long as you don't endanger others in the process.

Hamilton lost, and despite his objections, he still signed on in the end.

Hamilton has been proven correct more often than not, which makes the enumerated rights even more important because the citizen's of the US have forgotten or rejected the concept of natural rights this country was founded on.

And whether he's been proved right or not is a matter for debate. It's clear which side you fall on.

There is no provision in the structure of the US government that allows for direct referendums

There is at the state level. And I never said direct referendums should be the sole mechanism to define the extent of regulation of arms. Just one one possible means. I only claimed that the power belongs to the legislative process, not the judicial one.

representation is for sale to the highest bidder -- and the anti-gun lobbiests are some of the highest bidders in the market.

Again, I will not engage on debates based on personal paranoias. I will say that if representatives are simply a matter of the highest bidder, then pro-gun lobbies have the same access (and deeper pockets).

[Weird Harold]

You're own paranoia about the anti-gun lobby is irrelevant to the debate.

Is it paranoia if they're really out to get you?

From: http://en.wikipedia.org/wiki/Brady_Campaign_to_Prevent_Gun_Violence

In 1976, HCI's Chairman stated that the long-term goal of the organization was a ban on handgun ownership.

^ Richard Harris, "A Reporter at Large: Handguns," New Yorker, July 26, 1976, 53, 58

That's just the first of many citations on the stated goals of the gun lobbies. How is a resort to "First Principles" not disenbneous or hypocritical when your "first principles" remove the primary obstruction to long-standing and contuing campaign withthe stated gaol of disarming Americans (for the noblest of purposes, of course.)


Sure (http://www.cpsc.gov/cpscpub/prerel/prhtml04/04155.html). But that's entirely beside the point. Can you provide any reason a responsible citizen, even in self defense, would need a rocket launcher?

Can you provide some reasonable explanation why a responsible citizen should NOT own a rocket launcher? "Need" is irrelevant, because a responsible citizen isn't going to use it for criminal purposes or endanger innocent people.

As a matter of fact, I can think of a reason why a private citizen might need a rocket launcher -- The same reason that some people DO own Korean War era 105MM recoil-less rifles: avalanche control.

Manufacturer: First Samco Inc., through its Fobus USA Holster Division, of Southampton, Pa.

Hazard: A plastic or leather strap on the gun holster can catch the trigger of the gun when inserted into the holster causing the gun to unintentionally discharge, posing an injury hazard to the user.

A hazard when inserting the pistol into the holster is NOT a hzard once the pistol is in the holster and undisturbed by further human action or other outside force.

And if the objective is self defense, there's absolutely no reason to conceal your weapon.

My objection to gun control (and repeal of the 2A to permit more direct and draconian gun control) has ntohing to do with Self-defense, per se.

My objection is about legislating possession in such away that in order to possess an object you have to disprove an assumption of irresponsibility and/or criminal intent. It is a violation of the principle of "innocent until proven guilty."

We do that all the time. Exhibit A: controlled substances. I don't believe you'll find many people advocating the repeal of all laws banning crack. Possessing crack is certainly not enumerated in the Constitution, ... There's obviously no pro-crack lobby, but that's not why such laws were passed.

You'd be surprised at the numbers of people who favor legalizing ALL drugs, including crack. (Crack Cocaine is a product of the Drug War and, IMHO, would seriously decline in popularity if other options were legal.)

Hower, the point is that possessing any substance or object is a natural right and it is incumbent upon the law to prove illegal actions or intent to commit illegal actions before they can deprive a person of that natural right.

...The ultimate degree of regulation or control over such items should lie with the people and their elected representatives.


The whole point of the Bill of Rights is to limit what the people, through their representative can regulate. If the SEcond Amendment is no longer relevant, then the first and second through tenth are also irrelevant except for the ninth which (theoretically, but not practically,) protects unenumerated natural rights.

That's merely splitting hairs. A representative Republic is a subset of a democracy (http://en.wikipedia.org/wiki/Democracy), and I think you know I meant that.
...
There is at the state level. And I never said direct referendums should be the sole mechanism to define the extent of regulation of arms. Just one one possible means.

Yep, it is splitting hairs, but you used "Democracy" in conjunction with "Referendums" and that kind of direct popular voice is something the Framers of the Constituion explicity did NOT want to happen -- even in the context of a new Constitutional Convention to revise or replace the Constitution.

I only claimed that the power belongs to the legislative process, not the judicial one.

Then you need to re-read the role of the Federal Judiciary. It their JOB, in fact their primary purpose, to rule on the Constutionality of laws; to serve as a check on Legislative or Executive excesses.

The "legislative process" has given us things like the sediton acts, Jim Crow laws, The War on Drugs, The "Brady Bill," The "Assault Weapons" Ban, Prohibition, Wiretapping without warrants, and a registry of who is buying pseudophedrine HCL and a restriction against buying two products that contain it at the same time, and host of other laws and regulations that have been or should be struck down as unconstitutional infirngements on "life, liberty and the pursuit of happiness."

I see no reason for removing ANY explicit protection provided in the Bill of Rights and relegating it to the status of "unenumerated right" because the Ninth Amendment does NOT protect anything unless the supreme court decides it does -- and I don't know of a single instance where the Ninth alone has been the justification for a SCOTUS Decision to overturn an unconstitutional law.

[Terez]

You'd be surprised at the numbers of people who favor legalizing ALL drugs, including crack. (Crack Cocaine is a product of the Drug War and, IMHO, would seriously decline in popularity if other options were legal.)
I disagree with that. Not that crack is a product of the War on Drugs, but that its use would decline were it made legal. It's a bit late for that. Nor do I think its use would increase were it made legal, mind...

[Weird Harold]

I disagree with that. Not that crack is a product of the War on Drugs, but that its use would decline were it made legal. It's a bit late for that. Nor do I think its use would increase were it made legal, mind...
That assertion is an extrapolarion from some of the substitutes for alcohol that were dreamed up during Prohibition -- they're almost nothing more than a footnote in history now and are often blamed on bootleggers adulterating illegal booze to make go further. Nobody I know of dilutes their booze with strychnine (SP?) to make the "buzz" faster and more intense or substitutes dilute solutions ethalene glycol for alcohol in their drinks.

My Grandfather developed a taste for Bay Rum Aftershave Shaving during prohibition and when my aunts and uncles cut off his allowance in his later years to keep him from spending it all on booze in his later years, he went back to drinking aftershave.

Crack, PCP, Meth, and other products of the Drug WAr will, IMO, go the way of ethalene glycol and strychnine cocktails or BAy Rum Aftershave once the new Prohibition goes the same way as the original.

[Yuri33]

How is a resort to "First Principles" not disenbneous or hypocritical when your "first principles" remove the primary obstruction to long-standing and contuing campaign withthe stated gaol of disarming Americans (for the noblest of purposes, of course.)

Because you're debating me here, not those anti-gun people you keep referring to. I never made any claim in this entire thread advocating the elimination of all guns. My first principles argument is matter of strict definitions and their logical conclusions. The larger impact of those conclusions I leave to other people more knowledgeable on the issue than myself. Since I have yet to see a coherent deconstruction of my argument, I'll state them simply, and leave it at that:

1. The purpose of a constitution (http://en.wikipedia.org/wiki/Constitution)is to establish, elaborate, refine, and improve a system of government. A constitution is a blueprint for government.

2. The US Constitution is a document outlining a system of government known as a liberal democracy (http://en.wikipedia.org/wiki/Liberal_democracy).

3. Liberal democracy requires certain principles, including, but not limited to, competitive and fair elections, equal representation, freedom of expression\speech\press, rule of law, due process, etc., all of which are addressed in one form or another in the clauses\articles\amendments of the US Constitution. Furthermore, the US system of government other principles, such as separation of powers, checks and balances, etc., all reasonably part of this US government blueprint.

4. At the founding of the US, a specific, enumerated right to bear arms was required to empower the citizenry to fight a foreign occupying force, in large part because an organized, professional army under the control of the newly formed US did not exist. The right to bear arms was essential to establishing the US government. It was an essential part of the blueprint.

5. Currently (and for a long time now) the US has had a stable and functional democratic government, including a professional military under an elected civilian commander-in-chief, and professional law enforcement, also under appropriate civilian control.

6. Because of the (highly stable and functional) conditions of our current government, a specific, enumerated right to bear arms is no longer needed. The US government no longer needs establishing. It needs refining and improvement--it will never be perfect--but the right to bear arms has lost its original purpose as part of the blueprint to our government. Hence, it has no place in the Constitution and should be repealed.

Nothing of the above first principles argument advocates stronger or weaker gun control. It only advocates that whatever laws govern gun control no longer directly stem from interpreting a document designed to outline our system of government, but from the legislative process that underlies the vast majority of our laws and statutes not directly addressed by the Constitution.

Can you provide some reasonable explanation why a responsible citizen should NOT own a rocket launcher? "Need" is irrelevant, because a responsible citizen isn't going to use it for criminal purposes or endanger innocent people.

"Responsible" is a quality that we cannot determine for every citizen ahead of time. Under your (essentially absolute) libertarian standpoint, I could purchase a rocket launcher, drive it across state borders, load it, and aim it, all without violating a single law. Only until I actually pull the trigger do I violate "responsible" use. That represents an impossible burden to law enforcement. Under your standpoint, I should be allowed to bring my rocket launcher as carry on luggage in an airplane, or into a courtroom. If I (or law enforcement) didn't know who you were, if I (or law enforcement) didn't know you were a truly responsible and noble user, and would never do such a thing as harm an innocent, why would I (or law enforcement) ever trust you to do that?

Let me put it this way: I know you, WH, are an absolutely responsible owner of guns. Despite that, do you really believe the Secret Service is going to let you (in your capacity as a private citizen, not a military soldier) bring a gun (concealed or not) within a 100 yards of the President? Do you believe they are actually wrong in stopping you?

As a matter of fact, I can think of a reason why a private citizen might need a rocket launcher -- The same reason that some people DO own Korean War era 105MM recoil-less rifles: avalanche control.

Then allow them the launcher in their capacity as an "avalanche control engineer" or whatever, with all the training\licensing\etc. that involves, just like we allow guns for the police and military.

A hazard when inserting the pistol into the holster is NOT a hzard once the pistol is in the holster and undisturbed by further human action or other outside force.

That's beside the point. Inserting or removing the gun from the holster is part of the repertoire of responsible use of a firearm, and I clearly pointed out an example of how even responsible use can result in injury and potentially increased risk, which addresses the point of your original question.

My objection is about legislating possession in such away that in order to possess an object you have to disprove an assumption of irresponsibility and/or criminal intent. It is a violation of the principle of "innocent until proven guilty."
...
Hower, the point is that possessing any substance or object is a natural right and it is incumbent upon the law to prove illegal actions or intent to commit illegal actions before they can deprive a person of that natural right.

As stated earlier, your absolute libertarian burden goes too far the other way. How does law enforcement prove irresponsible use of a weapon if it has to wait for that weapon to be discharged in the act of a crime to begin with? How does law enforcement arrest someone for substance abuse\trafficking if it has to wait until the user actually uses\sells the drug? How does law enforcement do its job in protecting us?

Then you need to re-read the role of the Federal Judiciary. It their JOB, in fact their primary purpose, to rule on the Constutionality of laws; to serve as a check on Legislative or Executive excesses.

And you need to reread the context in which this thread of the debate stemmed from. I claimed legislative priority of gun control\regulation under the hypothetical that the 2nd amendment was repealed.

The "legislative process" has given us things like...

Irrelevant to a first principles argument. If you're going to argue that the legislative process is too corrupt to make law, then we've got bigger problems than gun control.

I see no reason for removing ANY explicit protection provided in the Bill of Rights and relegating it to the status of "unenumerated right" because the Ninth Amendment does NOT protect anything unless the supreme court decides it does -- and I don't know of a single instance where the Ninth alone has been the justification for a SCOTUS Decision to overturn an unconstitutional law.

Well, almost nothing is struck down based solely on one amendment. However, the unenumerated right to privacy was created in Griswold (http://en.wikipedia.org/wiki/Griswold_v._Connecticut)using the 9th and 14th amendments. And actually, the 9th amendment was the primary source used to specifically strike down a gun control law relatively recently: see US v Lopez (http://en.wikipedia.org/wiki/United_States_v._Lopez) (1995).

[Weird Harold]

ETA: I am only "hardcore libertarian" on this "first principle" of outlawing actions, not objects or the potential to act. That is a lesson the US should have learned from Prohibition but only seems to apply to alcohol.

Because you're debating me here, not those anti-gun people you keep referring to. I never made any claim in this entire thread advocating the elimination of all guns. My first principles argument is matter of strict definitions and their logical conclusions.

That is disingenuous if not downright hypocritical. Your precious first principles do NOT function in vacuum or come without consequences.

Since I have yet to see a coherent deconstruction of my argument, I'll state them simply, and leave it at that:

...
4. At the founding of the US, a specific, enumerated right to bear arms was required to empower the citizenry to fight a foreign occupying force, ...

The second ammendment right to keep and bear arms was enumerated by people who had just fought a rebellion against a tyrannical government. A rebellion that came to a head when that tyrannical government moved to confiscate the colonists' arms.

The Second Amendment is there NOT to empower the citizenry to resist foreign occupying forces, but as the ultimate check on their own government should it turn tyrannical.


Nothing of the above first principles argument advocates stronger or weaker gun control. It only advocates that whatever laws govern gun control no longer directly stem from interpreting a document designed to outline our system of government, but from the legislative process that underlies the vast majority of our laws and statutes not directly addressed by the Constitution.

Again, your first principles don't operate in a vacuum and ignore the continuing efforts to circumvent the explicit protection of an enumerated right. In essence, you're saying that the explict protection is no longer needed and whatever restrictions the anti-gun lobbiest can get passed by congress are only "democracy in action."

It also ignores the continuing and persistent efforts to undermine other enumerated rights; which according to your first principles argument should be adequately protected by the Ninth amendment as unenumerated rights.

"Responsible" is a quality that we cannot determine for every citizen ahead of time. Under your (essentially absolute) libertarian standpoint, I could purchase a rocket launcher, drive it across state borders, load it, and aim it, all without violating a single law. ...

Whatever happend to the first principle of "innocent until proven guilty?"

No responsible owner of a rocket launcher would load it and/or aim it anywhere except an approved target range for rocket launchers or at potential avalanche. Having a loaded rocket launcher in an urban setting without an obvious legal target requiring a rocket launcher is NOT "responsible ownership" and probable cause for interdiction by law enforcement under public endagerment laws.

In a free society, with the principle of "innocent until proven guilty" intact, the job of law enforcement is not easy. Tyranny is easy, and only requires that we repeal an amendment or five.


Let me put it this way: I know you, WH, are an absolutely responsible owner of guns. Despite that, do you really believe the Secret Service is going to let you (in your capacity as a private citizen, not a military soldier) bring a gun (concealed or not) within a 100 yards of the President? Do you believe they are actually wrong in stopping you?

Again, a responsible gun owner would NOT take a gun into a presidential security zone without a specific need for it -- which would have to be a specific need acceptable to the Secret Service. The Secret Service is rightfully paranoid about irresponsible citizens.

In an ideal world, the President wouldn't be such a dickhead and shouldn't have to worry about assassination.

I'm old enough to remember a time when it didn't require a security background check for a fifth grader to visit the White HOuse on her class field trip to Wa DC. :( (My younger granddaughter had to have a background check for a class trip to DC last month that included a White House Tour.)

I clearly pointed out an example of how even responsible use can result in injury and potentially increased risk, which addresses the point of your original question.

Did you completely miss the point of the original question that badly? The point of the original question was to illustrate that guns are inanimate objects and do NOT discharge without some outside force acting on them.

When they're properly stored and left alone, they're less dangerous than the bottle of bleach you keep under the kitchen sink; the bleach will eventually corrode the plastic bottle it comes in and then become a hazardous waste problem without any outside force acting on it.

As stated earlier, your absolute libertarian burden goes too far the other way. How does law enforcement prove irresponsible use of a weapon if it has to wait for that weapon to be discharged in the act of a crime to begin with? How does law enforcement arrest someone for substance abuse\trafficking if it has to wait until the user actually uses\sells the drug? How does law enforcement do its job in protecting us?

Law enforcement in a society founded on the principle of "innocent until proven guilty" isn't easy.

Law Enforcement should NOT be arresting anyone for trafficking or substance abuse. The should be arresting them for DUI (and the courts should be locking them up for DUI.)

Law enforcement doesn't have to wait for a gun to be discharged -- assault with a deadly weapon is a threat; Aggrevated Battery or attempted homicide is the proper charge when the weapon is discharged; along with public endagerment, gross negligence, and any other charge for the action of being irresponsible or criminal.

But the main argument here is that criminals with illegally obtained guns -- convicted felons, mentally ill, and others who have lost/forfeited their right to presumed responsiblility -- already present Law Enforcement with the problem of not being aware of the crime until the gun is discharged.

Responsible gun owners aren't he problem, but gun control laws only affect the responsible and law-abiding citizens and does NOTHING to reduce the criminals with guns -- which is what the SCOTUS decison reflected in regards to Washington DC.

Irrelevant to a first principles argument. If you're going to argue that the legislative process is too corrupt to make law, then we've got bigger problems than gun control.

Yes we do have bigger problems than gun control, we have a corrupt legislative branch -- that even if it were NOT corrupt, is fixated on the principle that OBJECTS cause crime and people who possess those OBJECTS' must be presumed to be under the evil influence of those OBJECTs' desire to be used irresponsibly or criminally.

That is really my "first principle:" In a free society, which presumes innocence, the natural right of free citizen's to own, use or transport any object or material should only be infringed upon by clear and present threats to the rights or safety of others. If an object or material can be left in an otherwise empty room without endangering lives or property, there is no inherent threat to the rights or safety of others.

The framers of the Constitution saw fit to protect the natural right that brought the Revolution to a head -- the right to keep and bear arms -- and I see no reason to repeal that protection, especially in light of the SCOTUS recognition that it is an Individual Right and the persistent and continuing campaign by anti-gun lobbies to erode the protection; they can't erode the right, because that iis a Natural Right the Constitution only explicitly acknowledges.

You made the point that the NRA and other gun rights groups have a great deal of funding -- that may well be, but without the Second Amendment, that financial advantage (if it is an advantage) means nothing; their entire position is grounded in the explicit Constitutional protection provided by the Second Amendment.

You also made the point that Law Enforcement (of all types) and the Military are armed. That is precisely why the Framers (and ratifiers) thought it important enough to make keeping and bearing arms the second amendment to the Constitution. The only thing considered more important was the First Amendment protections of free speech assemby and religious freedom.

Constitutions aren't like underwear, you don't have to change them every day. The right of responsible, law-abiding citizens to keep and bear arms does no harm to society. It is the irresponsible citizens and criminals who harm society and they would continue to do so with or without the second amendment.

The only thing that repealing the second amendment would accomplish is to punish the responsible, law-abiding citizens by infringing upon their natural right to own whatever object they choose to own for whatever reason they might choose to own it saving only that they not infringe on others people's natural rights or negligently endanger them.

[Yuri33]

Your precious first principles do NOT function in vacuum or come without consequences.

Neither do yours.

Tyranny is easy, and only requires that we repeal an amendment or five.
...
Constitutions aren't like underwear...

Stop implying that this is what I believe.

In essence, you're saying that the explict protection is no longer needed and whatever restrictions the anti-gun lobbiest can get passed by congress are only "democracy in action."

And that whatever expansions to gun rights the pro-gun lobbies can get passed by congress are also "democracy in action."

The point of the original question was to illustrate that guns are inanimate objects and do NOT discharge without some outside force acting on them.

When they're properly stored and left alone, they're less dangerous than the bottle of bleach you keep under the kitchen sink;

Yes, there is no risk in letting a gun collect dust in a basement. And there's probably no risk to simply carrying a weapon. But no one buys guns to be museum pieces, and no one buys guns to be fashion accessories. Responsible use (of which simple storage\carrying is only one part) can still involve risk, which was the point I was making. Or would you be in favor of a law that allows the purchase of guns so long as you stipulate that you will only keep them as museum pieces or fashion accessories?

Law Enforcement should NOT be arresting anyone for trafficking or substance abuse.

I was told earlier in this thread not to hold my breath for a repeal of the 2nd amendment, and I fully accept that. I think I would pass the same advice along to you about legalizing trafficking and substance abuse.

The Second Amendment is there NOT to empower the citizenry to resist foreign occupying forces, but as the ultimate check on their own government should it turn tyrannical.

This is what I would refer to as disingenuous. The Constitution set up a system that prevents tyrannical government (checks and balances, separation of powers, etc.). In fact, it is spelled out clearly in various articles, amendments, and subsequent SCOTUS decisions, that the right to overthrow the government must be respected, but the right to do so violently most certainly is not.

You made the point that the NRA and other gun rights groups have a great deal of funding -- that may well be, but without the Second Amendment, that financial advantage (if it is an advantage) means nothing; their entire position is grounded in the explicit Constitutional protection provided by the Second Amendment.

This is completely untrue. The NRA is a lobby for people who like guns, who enjoy possessing and using them. Defense of the 2nd amendment is a way to continue doing what they enjoy doing. The gun manufacturing lobby is a business lobby. They defend the 2nd amendment because it helps their bottom line. A repeal changes nothing about their positions\motivations.

Whatever happend to the first principle of "innocent until proven guilty?"
...
That is really my "first principle:" In a free society, which presumes innocence, the natural right of free citizen's to own, use or transport any object or material should only be infringed upon by clear and present threats to the rights or safety of others.

And now we come to the heart of it. You are proving my point. Your argument for a right to bear arms stems from the "innocent until proved guilty" principle. I respect that. Such a principle is referred formally as a Presumption of Innocence (http://en.wikipedia.org/wiki/Innocent_until_proven_guilty), and is absolutely required for a functional democracy. However, the presumption of innocence, the very "first principle" you are basing your defense of gun rights on, does not come from the 2nd amendment! It is a right derived from the 5th, 6th, and 14th amendments (see Coffin v US (http://en.wikipedia.org/wiki/Coffin_v._United_States) (1895)).

By your own argument, your own first principle, the 2nd amendment is redundant. As I have argued from the beginning, the 2nd amendment is not needed in our blueprint for the US government. A constitution is only meant to define those things fundamentally necessary for government--everything else should be stripped and codified elsewhere (such as federal\state statues, criminal statutes, legislative bills, executive orders, etc.).

You're a libertarian (and I believe a conservative). You want less laws--as little as possible as needed to make the government work, and then get the hell out of your way for everything else. My argument should appeal to you. You've provided an interpretation of gun rights that doesn't stem from the 2nd amendment, but from other sources. The 2nd amendment is extra law, not necessary by your own reasoning.

[Uno]

You're a libertarian (and I believe a conservative). You want less laws--as little as possible as needed to make the government work, and then get the hell out of your way for everything else.

Not sure you can be a conservative libertarian. Conservatism (in its traditional sense) is skeptical of individualism, and holds that greater wisdom is to be found in the weight of collective traditions and patterns of behaviour than in the political and ideological thinking of individuals.

In the English political tradition, the foremost spokesman for conservatism is Burke, who looked to shared customs and other forms of collective thought for solutions, and was sometimes downright dismissive of individualism. The great liberal philosopher was Locke, who (in particular) stressed the importance of individual natural rights. Conservatism doesn't really have a philosopher, as a true conservative is a particularist who doesn't believe in universal absolutes, and can therefore have little truck with firm ideologies divorced from social, political, and cultural contexts. Instead, conservatism recognizes that different societies require different solutions, based on their particular traditions.

Basically, conservatism is pragmatic and particularistic, while liberalism is doctrinaire and universalistic.

The philosophy of laissez faire and limited government is actually what's commonly known as classical liberalism. Classical liberalism is essentially the ideology of captialism, whereas many conservative thinkers have been anti-capitalists, as they have realized that capitalism doesn't care one bit for the customs and traditions conservatives cherish, but, on the contrary, is quite willing to tear down all established institutions if these stand in the way of economic growth.

In the US, of course, there's never been a strong conservative tradition (at least not since the expulsion of the loyalists), and the word "conservative" has therefore been applied to champions of free market liberalism. The same has to a certain extent happened also in Europe, as the Conservative Party in Britain (for instance) has often championed classical liberalism, while at the same time housing a more culturally conservative wing. I suppose you could see the religious right in the US as the culturally conservative wing of the GOP, but their frequently extreme style and opinions seems pretty non-conservative to me, especially since classic conservatism above all wants to limit, not fuel, social tensions.

I haven't encountered many Americans I'd characterize as classic conservatives, but the word conservative, of course, is often applied to any defender of the status quo, which has led some commentators to characterize hard-line communists in such countries as China and Vietnam as conservatives, even though communism is basically the archenemy of traditional conservatism.

[Yuri33]

I stand corrected, Uno, though it's pretty clear the type of philosophy I was referring to--limited government, minimal law--whatever it is properly called.

It is ironic, however, that your descriptions of liberalism, libertarianism, and conservatism fly in the face of the political reality of the current US election. Most people see the Libertarian candidate, Bob Barr, taking votes away from McCain, not Obama.

[JSUCamel]

Just like our definition of conservative doesn't fit the classical definition of conservative, our party names don't really fit the classic definitions of the parties. The Libertarians are more of the modern form of conservatism than classic conservatives would be.

In the immortal words of Sei'taer's uncle/father/cousin who told his wife/aunt/cousin/sister, "It's all relative, baby."

[Sinistrum]

However, the presumption of innocence, the very "first principle" you are basing your defense of gun rights on, does not come from the 2nd amendment! It is a right derived from the 5th, 6th, and 14th amendments (see Coffin v US (1895)).

That is an incorrect and overly simplistic interpretation of Coffin. First off, the presumption of innocence derives from the due process clauses of the 5th and 14th Amendments to the Constitution. It has nothing to do with the 6th Amendment (though the 6th Amendment does contain numerous enumerated rights that are substantially similiary to the concept, so I can understand the confusion). Secondly, it is a procedural due process right, not a substantive due process right. What's the difference? Procedural due process involves the idea of "fair process" in that the government can't deprive you of rights without notice and a fair hearing. This applies from everything from the world of criminal law to revocation of a drivers license and termination of parental rights. It applies only to the procedures of a government restriction on liberty, not the actual subject of the restriction. Procedural due process has nothing to do with actual substantive rights such as the right to own guns and therefore would do nothing to protect them if the second amendment were repealed as long as the process used by the government to repeal a right to gun ownership afterward was "fair." Thus the second Amendment is not redundant in this regard.

However, I don't think WH was using the argument of "innocent until proven guilty" in its purely legal sense. I got the impression that he was using it more as a philosophical argument, that such a presumption should be foremost in our minds before we restrict any sort of liberty.

As far as substantive due process, that theoretically would provide some protection against infringement on the right to gun ownership. However, if the 2nd Amendment were repealed it would open the door to regulation and possible abolition of the right of gun ownership by nothing more than a mere Congressional act. Furthermore, if the SCOTUS were to decide that gun ownership was not a fundamental right (examples: privacy, travel, voting, ect.) but instead a lesser one, the basis for this act could be nothing more than a rational one related to an important government interest (which is an extremely low judicial legal standard to meet), which means that such a law would have a low burden to justify in order for it to pass muster Constitutionally. So while substantive due process would provide some protection, it wouldn't be much. Gun rights could be completely eliminated if Congress were to come up with even marginally rational reason for it if substantive due process is the only thing left protecting them. So once again, you are incorrect in asserting that the 2nd Amendment is redundant. The protection afford to gun rights by the 2nd Amendment vs. the due process clause is the difference between a fortress and the straw house of the first little pig.

[Yuri33]

The protection afford to gun rights by the 2nd Amendment vs. the due process clause is the difference between a fortress and the straw house of the first little pig.

Well, I stand corrected. I wasn't trying to co-opt WH argument, I was attempting to take it to it's logical conclusion. Greater legal minds obviously disagree, and I respect that.

However, I don't think WH was using the argument of "innocent until proven guilty" in its purely legal sense. I got the impression that he was using it more as a philosophical argument, that such a presumption should be foremost in our minds before we restrict any sort of liberty.

Is there any controlling case history that supports this alternate, philosophical sense (as opposed to purely legal sense) as a valid basis for making (or upholding) law?

None of this applies to my original argument for repeal, however. I'm not asserting that the 2nd amendment, on its face, is redundant, inconsistent, evil, or whatnot. I'm claiming that it has no place in a constitution, a document that, by definition, should only contain language that defines a system of government. Additional rights not directly applicable to that purpose, whether fundamental or not, should be codified elsewhere. You obviously have a stronger grasp of constitutional law and history--has there ever been a challenge based on this reasoning? My cursory Google search yielded nothing.

I have no particular stance on what gun regulation law should look like, just that it shouldn't be based on a clause that I believe doesn't belong in the Constitution. I don't believe any level of gun control (even an absolute ban) substantially threatens the stability or functionality of our government, and hence shouldn't be directly addressed by a clause in the Constitution. There are much more pertinent sources (crime, safety, personal freedom, self defense, recreational use, etc.) that should guide such legislation, and should rightly result from a democratic legislative process. Simply relying on the 2nd amendment often times short-circuits these considerations.

[Weird Harold]

Stop implying that this is what I believe.


Why is only the second amendment redundant? If it is redundant, then why is there so much effort put into opposing individual gun ownership?

Your arguments apply equally to the freedom of the press and assembly clauses in the First amendment; with today's technology, subversives (or free citizens) don't need printing presses or mass meetings, they have the internet and prepaid cell phones


And that whatever expansions to gun rights the pro-gun lobbies can get passed by congress are also "democracy in action."

What expansion beyond "shall not be infringed" is the NRA campaigining for? How can you expand on a natural right?

But no one buys guns to be museum pieces, and no one buys guns to be fashion accessories.

You obviously don't watch the history channel's Tales of The Gun series; one of the regular contributors is a gun collector who has what is essentially a private museum of something like a half-million firearms. He has the biggest gun collection in the country, but he's far from the only collector who buy guns specifically as "musuem pieces" -- he claimes to have at least one of every make and model of gun ever made or sold in the US.

Responsible use (of which simple storage\carrying is only one part) can still involve risk, which was the point I was making. Or would you be in favor of a law that allows the purchase of guns so long as you stipulate that you will only keep them as museum pieces or fashion accessories?

What part of "Shall Not Be Infringed" is that you have trouble understanding?

I was told earlier in this thread not to hold my breath for a repeal of the 2nd amendment, and I fully accept that. I think I would pass the same advice along to you about legalizing trafficking and substance abuse.

I think there is far more chance of prohibition being repealed again than there is of the Second Amendment being repealed. :D The people who voted to repeal Prohibition were no more in favor of "Demon Rum" than they were whent hey passed Prohibiton in the first place, they were just tired of Al Capone and his ilk killing innocents along with eash other -- much like the drive-bys and gang violence driving much of the anti-gun hysteria today.

This is what I would refer to as disingenuous. The Constitution set up a system that prevents tyrannical government (checks and balances, separation of powers, etc.). In fact, .... the right to overthrow the government must be respected, but the right to do so violently most certainly is not.

Do you deny that the framers of the Constitution had less than a decade perviously violently overthrown the rightful government of the colonies and had done so in part because the rightful government attempted to take their weapons?

Later SCOTUS decisions have no effect on the framers concern for the possibility of Tyranny requiring another violent overthrow of the rightful government. They built the checks and balances into the system to minimize the chance of an armed rebellion becoming necessary, but the Second Amendment exist because the framers felt the principle it embodies was important enough to go to war over in 1776.

Defense of the 2nd amendment is a way to continue doing what they enjoy doing. ... A repeal changes nothing about their positions\motivations.

"To continue doing..." That really the whole point. Millions of gun owners have since the ratification of the Bill of Rights have owned and used guns without breaking the law or endangering the general public by their ownership of guns. They wish to continue to own and use guns without breaking the law or enedangering the general public.

The NRA exists, as a political lobbying force, to encourage lawmakers to respect the law of the land. If you remove or revise the Law of the Land that they exist to watch over -- remove the "right" to continue doing as gun owners have lawfully done for 200+ years -- you remove the legal basis for their political lobbying.

Sarah Brady and her ilk exist as a lobbying force to encourage lawmakers to violate the spirit of the law of the land and to violate the letter of the law of the land in small enough increments to establish precedents that can be built on to further infringe on the spirit and letter of the law until all guns are either banned or rendered useless for lack of ammunition or ability to legally transport them.

That last is not paranoia, it is a paraphrase of one of Sarah Brady's speeches; it's the anti-gun lobby's goal and strategy. (might have been another anti-gun advocate, but Sarah has said similar things if not he specific speech I paraphrased)

However, the presumption of innocence, the very "first principle" you are basing your defense of gun rights on, does not come from the 2nd amendment!

I never said or implied that presumption of innocence came from the second amendment and I'm not quite sure how you managed to infer that I held any such idea.

I said that the presumption of innocence applies to the right to keep and bear arms -- Gun owners do not have to prove a need to own a weapon or prove a need to carry a weapon.

The State must present probable cause of wrong-doing before a judge to obtain a warrant for the search and seizure of a citizen's person or property, including any weapons, except when there is an immediate threat to public safety, in which case, probable cause alone is sufficient to constitute a "reasonable search and seizure."

However, Presumption of Innocence isn't applied to the banning of objects -- there is rather often direct and explicit assumptions of guilt in many current laws. "Possesion of over one ounce of cannibis is defacto proof of intent to distribute," for example.

Anti-gun laws generally aren't quite that direct, but they presume that simple ownership is defacto proof of intent to use -- an assumption YOU made regarding "...no one buys guns to be museum pieces..."


Letting the Second Amendment stand (or defending it) does nothing but protect the right of citizens to continue doing as they have been doing for 200+ years -- the vast majority doing so responsibly and safely.

Repealing the Second Amendment does nothing except open the door to the Sarah Bradys of the world who do not wish to allow the vast majority to continue to do as they have done safely and responsibly for 200+ years because (in her case) ONE person chose to commit a criminal act with a handgun and was so inept that he shot the wrong person.

Prohibition, whether of alcohol, drugs, or guns does NOT make the world a safer place, it makes the world a more dangerous place because it turns regulation and control of whatever you ban over to the criminals of the world.

For example: It is harder for a tween to buy tobacco than it is to buy Crack. That's because the person selling the Crack doesn't have a business license to worry about losing for selling to underage customers. The person selling Crack would prefer to sell to underage customers because they generally survive longer to buy his product and they're generally not well-informed enough to resist a few free samples.

The person selling tobacco generally does have a business license to worry about and a profit from legal sales to lose if he sells to minors.

If you repeal the Second Amendment, then the anti-gun forces win; sales and distribution of guns are removed from the honest businessmen with profits and business licenses at stake if they sell to a felon, mental incompetent or minor. Sales and Distribution of firearms is then handed to the exclusive domain of the gun smugglers and gang-bangers.

Gang-bangers already have no compuction about selling illegal handguns to minors, felons, and mental incompetents -- in many case they provide them free to the minors and mental incompetents because the minors and mental incompetents generally won't be sentenced to Life in Prison or Death Row.

I personally have no objection to reasonable restrictions on gun ownership -- no felons, minors or emental incompetents need apply, for example. The problem I have with any regulation of firearms is that speech of Sarah Brady's about how to start off reasonable with only minor, questionable, infringements to establish precedents that can be built upon.

FWIW, the NRA, has actually gotten more functional gun control legislation passed than the anti-gun lobby ever has. (that's why the NRA is the certifying authority for Hunter Safety Courses which are a prerequisite for getting a hunting license in most states.)

The majority of "anti-gun" legislation, like the Brady Bill and the "Assault Weapons" Ban accomplished absolutely NOTHING to make the US or world a safer place, but they did establish a couple of legal precedents to build on so that more essentially useless legislation can get passed and establish stronger precedents. (the Assault Weapons Ban was allowed to expire because it did not remove one single make or model from the market -- although it did force a couple of cosmetic changes to two or three models.)

Gun Control is more a symptom than a "cause" for me -- I'm opposed to the passage of pointless (usually arguably unconstitutional) laws that do nothing constructive except provide legal precedents and test cases before they're allowed to expire or struck down by the judiciary.

I'm opposed to laws that prohibit objects and I'm opposed to laws that set conditions that "prove intent to commit a crime." That route leads to Orwells' Big Brother and Thought Police and I'll do everything I can to steer away from that route.

[Sinistrum]

I'm claiming that it has no place in a constitution, a document that, by definition, should only contain language that defines a system of government.

The 2nd Amendment does in the sense that it helps define the system of government by putting limitations on its power against the individual, but I see what you're getting at. You basically want the Constitution limited to the original Articles that define the structure and power sharing arrangements and those amendments that alter that. Am I right? This has some very interesting implications for the rest of the Bill of Rights as well as the 2nd Amendment if that is the case. After all, Amendments 1-8 all deal with individual rights that thus limit the power of government, not definitions of government as a system in the strict sense. It would seem to me that Amendments 1-8 would all have the same problem that you are keying in on with the 2nd Amendment then in that all of the rights they are affording to people could be "codified elsewhere." The funny thing is that would put you right square in Alexander Hamilton's camp during the original debate over whether to include the Bill in the original Constitution. ;)

Is there any controlling case history that supports this alternate, philosophical sense (as opposed to purely legal sense) as a valid basis for making (or upholding) law?

I can think of a couple off the top of my head. Many legal doctrines have been expanded outside of their original purpose to other areas of the law because of the philosophical similarities in purpose. For example, the "prejudice" requirement first outlined in U.S. v. Valenzuala-Bernal in cases dealing with proving violations of the Confrontation clause was later adopted in cases involving ineffective assistance of counsel and prosecutorial misconduct. This was done all on the philosophical/public policy belief that unless there was a grievious error in a criminal trial, verdicts should not be disturbed by minor errors, thus creating more costs associated with obtaining and finalizing convictions.

You've also had similar legal tests created in dealing with a government discriminating against people based on various classifications. Race, nationality, and ethnicity are enumerated as suspect classes of discrimination in the Equal Protection clause and the test for whether government may discriminate based upon those classifications is whether the discrimination is narrowly tailored to meet a compelling government interest. This test has been partially adopted toward gender and sexual preference discrimination for the philosophical reason that it generally is a good idea to prevent government from discrimination on those grounds too in addition to the grounds specifically enumerated.

Finally, you have the ultimate "philosophical right" in the right to privacy. It was never specifically mentioned in the Constitution, but the SCOTUS has consistantly held it to be a penumbra of a congomoration of the Bill of rights, including the 3rd and 4th Amendments. The general argument was first articulated in Griswold v. Connecticut if I remember correctly and it essentially says that the underlaying philosophy behind the right to be secure against unreasonable searches and quartering troops in homes was derived from the idea of a right to privacy, and thus, such a right was part of the Constitution too.

You obviously have a stronger grasp of constitutional law and history--has there ever been a challenge based on this reasoning?

I've never come across one, and quite frankly I don't think I ever will since such a challenge would be counter-intuitive. You would be basically challenging one part of the Constitution based upon another part of the Constitution, which simply is not the way the Constitution or judicial review works. The only grounds for a challenge based upon the Constitution is another form of law that contradicts it. The Constitution does not and cannot contradict itself. This is especially true in light of the Amendment process, since any Amendment automatically trumps any previous portion of the Constitution that it is in conflict with. Hence you had the repeal of 18th Amendment with the 21st Amendment, for example. What it comes down to is that all of the Constitution is...well...Constitutional by definition.

[Yuri33]

You basically want the Constitution limited to the original Articles that define the structure and power sharing arrangements and those amendments that alter that. Am I right?

Almost. There are certain individual rights that must be additionally secured for our system of government, a liberal democracy, to be functional. You can't have, for example, our system of government without a well informed public to participate and vote in, so we need a protected right to free speech and free press. You can't have a functional form of our criminal justice system without a protected right to due process.

I'm arguing that any individual rights stemming from a constitution should be those necessary for the system of government established by that constitution to function properly. Any subsequent amendments to a constitution should address functional changes to the system of government, whether it be directly (congressional pay, term limits), or through changes in individual rights that functionally alter the system of government (voting rights).

This is why I believe prohibition, for example, had no place in the Constitution. Banning alcohol has no functional effect on our system of government. If such a ban were to be reintroduced (not that I support it), it would correctly belong in federal statues, not the Constitution. This is also the reason I believe the 2nd amendment has no place in the Constitution--it does not functionally affect our system of government, so it should rightly be codified elsewhere. Other than the 2nd and 18th amendments, I believe all other amendments pass this "functionality of government" threshold.

You would be basically challenging one part of the Constitution based upon another part of the Constitution, which simply is not the way the Constitution or judicial review works.

I'm challenging the Constitution based on the definition of a constitution. I don't know if that's a valid challenge or not, but that's what I believe. I'm not interested in expanding or restricting gun control, I'm only interested in maintaining the consistency of our most important legal document.

[Ozymandias]

Wouldn't the freedom of press and religion also have no direct bearing on the government? On some level, a lot of articles of the Bill of Rights don't influence the working of our government, but they're important rights nonetheless that the Framers and lawmakers afterwards felt were so important they needed to be written down.

And on the subject of the 2nd Amendment... its nearly impossible to claim that the Founders had any real intentions as it relates to the current state of affairs. The social, cultural, and economic landscape of this country is so far removed from their experience that trying to apply their knowledge in such specific cases is nearly impossible.

For example, owning an automatic weapon isn't more useful in self defense than a musket. Nothing but harm can come from owning one. Thats something the Founding Fathers never would have predicted. They have us a framework to build around and change as the world moved on, not a rigid set of laws meant to stand for eternity.

[Sei'taer]

For example, owning an automatic weapon isn't more useful in self defense than a musket. Nothing but harm can come from owning one. Thats something the Founding Fathers never would have predicted. They have us a framework to build around and change as the world moved on, not a rigid set of laws meant to stand for eternity.

What makes one more or less dangerous than the other? And how can it be harmful to own one? Let me get my pocketknife go down the stairs, climb in my car fire up a cig, run to the depot and get some fertilizer and some kerosene, look at the lawn tractors, load up the car and head for home.

I've never owned, loaded, or shot a musket. About the best I could do is beat the shit out of someone with it, but I would rather use a bat if it came to that.

[Davian93]

For example, owning an automatic weapon isn't more useful in self defense than a musket. Nothing but harm can come from owning one. Thats something the Founding Fathers never would have predicted. They have us a framework to build around and change as the world moved on, not a rigid set of laws meant to stand for eternity.

I don't know...I think I'd feel safer with an M-4 sitting in the closet compared to a smoothbore musket. But that's just me.

[Ozymandias]

I don't know...I think I'd feel safer with an M-4 sitting in the closet compared to a smoothbore musket. But that's just me.


My point to both sei'tar and Dav is that owning an automatic weapon has no use that can't be replaced by a semi, a handgun, whatever you want. If your being robbed, its not gonna be a small army of highly trained terrorist commandos that you need to spray down in a hail of gunfire. Since we all agree that anyone with a gun should be trained in its use and safety, or its more of a threat to the owner than a robber, we can assume that one shot is as effective as 300. Especially since the average robber is gonna run like effing hell when he hears a gunshot go off right next to him.

I'm all for gun ownership. But I don't think anyone needs an M4 or something sitting around the house. There is just no logical or reasonable use for it that a semi automatic rifle or handgun wouldn't fulfill.

Perhaps my comparison to a musket was a tad exagerrated... but hopefully the main point went through.

[Sinistrum]

My point to both sei'tar and Dav is that owning an automatic weapon has no use that can't be replaced by a semi, a handgun, whatever you want.

A. Why should it matter what use a weapon is designed for as long as it is one within the law? I never understood why utility is commonly harped upon in terms of whether gun owership should be legal or not when we hardly if ever apply that standard to anything else. Just because a substitute for something exists has no bearing on the inherent value of the thing being substituted. I could substitute an apple for an orange, and while they still both serve the same use as food, they do not provide the same taste experience as each other. By your logic the possibility of that substitution, by itself without any other considerations being taken, automatically mean that it would be ok to outlaw apples in favor of oranges.

B. I can think of two alternative uses for automatic weapons which do not involve use against people just off the top of my head that you cannot use a substitute weapon for and gain the same benefit. 1. Collection 2. Sport shooting at a range.

[Weird Harold]

Wouldn't the freedom of press and religion also have no direct bearing on the government? On some level, a lot of articles of the Bill of Rights don't influence the working of our government, ....

The Bill of Rights, condensed version:

Preamble: ...to prevent misconstruction or abuse of its powers, ... declaratory and restrictive clauses ... added...


Congress shall make no law respecting ... or prohibiting ... or abridging
...shall not be infringed
No Soldier shall, in time of peace ... nor in time of war
The right of the people ... shall not be violated and no Warrants shall issue, but upon probable cause ...
No person shall be held ... nor shall any person be subject ...nor shall be compelled ... nor be deprived ... nor shall private property be taken ... without just compensation.
... the accused shall enjoy the right ...
the right of trial by jury shall be preserved, ...
... shall not be required nor ... imposed ... nor ... inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.


Note the number of Shall Nots, Neithers and Nors. Every article in the bill of rights limits the government in some way or requires that it act in a specified manner.

Advocating repeal of any article is functionally equavalent of passing the opposite wording of the article repealed. IN the case of the second amendment, a motion to repeal is the functional equivalent of:

A Militia, being UNnecessary to the security of a State, the right of the People to keep and bear Arms, shall be infringed.

And on the subject of the 2nd Amendment... its nearly impossible to claim that the Founders had any real intentions as it relates to the current state of affairs. ...

Full text at: http://www.jmu.edu/madison/center/main_pages/madison_archives/constit_confed/rights/jmproposal/jmspeech.htm

[Emphasis mine]
...It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people's liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a declaration of the rights of the people....

That highlighted bit sounds like a prediction of the ACLU, NRA, and other "watchdog groups" who finance Constitutional challenges and test cases, to me.


For example, owning an automatic weapon isn't more useful in self defense than a musket. Nothing but harm can come from owning one. Thats something the Founding Fathers never would have predicted.

I think you'd be surprised at how farsighted the Founding Fathers were. James Madison wasn't the only prescient founding father, but he voices some concerns in that referenced speech that have come to pass and eventualy been rectified through the existance of the bill of rights.

There were experimental "Volley Guns" and (military issue) breechloading rifles in their day, and it isn't difficult to extrapolate from those contemporary designs (and older, DaVinci designs) to the capability of a 7.63 minigun or the 30mm GAU-8 of the A-10 Warthog. I don't know that they could have envisioned the Warthog itself, but the gun it's armed with is the end result of designs they were (or at least could have been) familiar with.

"Nothing but harm can come from owning one," is a presumption of intent on the part of the owner. If a fully automatic weapon is merely "owned" and neither used or maintained, it will relative wuickly become non-functional and be less effective than the 18th century smoothbore muzzle loading musket; the musket is at least heavy enough and sturdy enough to make a decent club when is non-functional. :D

[Yuri33]

Wouldn't the freedom of press and religion also have no direct bearing on the government?

Freedom of press: I explained this one earlier, but to reiterate, a liberal democracy requires a well-informed public to vote. We can cynically debate about the effectiveness of the modern news media but the fundamental point is that it is independent of government and free to convey whatever it wants (yes, there are exceptions--libel, national secrets, etc., but you get the point). Our government won't function the way the Founders intended without this freedom.

Freedom of religion: The relevant clause is: "Congress shall make no law respecting an establishment of religion..." It was the intent of the Founders not to create a national religion--as the English did--or specific endorsement of a religion (or, as some argue, religion itself). To do so would mean that government would serve 2 masters--the will of the people, and the tenants of whatever religion was established. SCOTUS has argued that this doesn't prevent expressions of religion ("In God we Trust"), nor does it prevent the people themselves from voting based on religious principles. But if the government itself endored a national religion, the inherent conflict of interest does indeed interfere with the functionality of government.

Advocating repeal of any article is functionally equavalent of passing the opposite wording of the article repealed. IN the case of the second amendment, a motion to repeal is the functional equivalent of:

A Militia, being UNnecessary to the security of a State, the right of the People to keep and bear Arms, shall be infringed.

This is a logical fallacy. Striking language does not endorse the opposite.

[Weird Harold]

This is a logical fallacy. Striking language does not endorse the opposite.

It is a logical fallacy only in the vacuum of an ivory tower.

If you remove an obstruction you only do so to allow free passage of whatever was being obstructed -- otherwise it isn't an "obstruction." The second amendment clearly IS an obstruction to passage of the level of gun control that has been publically and repeatedly stated as the goal of the anti-gun movement(s.)

You can claim to be as pious and uncommitted to gun control as you wish, but you're advocating the dynamiting of a levee at the peak of flood season and claiming it won't cause any damage because nobody should live the flood plain anyway.

If the Second Amendment was truly irrelevant to the function of government -- as a limit on what government can do, then there would no pressure to repeal or reinterpret it. It w ould be as little used and forgotten as the Third clause of Article Four of the Constituion:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

And no, the so-called "Fugitive Slave Clause" was NOT superceded by the thirteenth amendment because it applies to involuntary servitude imposed as a legal punishment -- "30 days of public service" type sentences -- as well as to chattel slaves.

The "Fugitive Slave clause" is essentially irrelevant even though it technically applies to certain modern situations because those situations are, in general, also covered by the second clause (extradition):

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

"Other Crimes" == skipping out on Probation without fulfilling the requirements of the sentence == "flee(ing) from Justice"

But the Second Amendment is NOT as forgotten and redundant as the "Fugitive Slave Clause" of Article Four which changes to society and technology have really and truly made irrelevant.

The Second Amendment is under constant attack and is anything BUT forgotten, as this thread indicates.