Like most of the other VC bloggers, I am sympathetic to the idea that the Second Amendment protects an individual right to bear arms, not just a "right" limited to members of state-controlled "militias." The DC Circuit's recent decision in Parker increases the likelihood that that view will soon triumph in the Supreme Court. However, this possibility raises some important questions about the scope of the individual right in question. In particular, what kinds of "arms" do we have a right to bear?
As a textual matter, the "the right to keep and bear arms" seems to apply to all types of weapons, without exception. This approach, however, would give citizens the right to own powerful military weapons, perhaps even including nuclear bombs and other WMDs. One possible textual limitation is the idea that the right is limited to those that one person can "keep and bear," thereby excluding a great deal of heavy military equipment, such as tanks or artillery pieces. However, the right would still apply to such potent handheld arms as machine guns, RPGs, shoulder-launched surface to air missiles (e.g. - the Stinger SAM), and grenades. It is far from clear to me that largely unrestricted private ownership of such weapons is desirable.
Questions such as these are usually met with the response that the Second Amendment will still permit "reasonable" regulations. This, however, is far from satisfactory in light of the fact that people of differing ideologies have widely divergent conceptions of what counts as reasonable. Moreover, the implicit assumption that regulations banning private ownership of RPGs and Stingers are "reasonable" is in tension with the theory that the principal purpose of the Second Amendment is to give citizens the ability to use their weapons to resist a tyrannical government. This "insurrectionary theory" of the Second Amendment is arguably the most popular interpretation advanced by scholars sympathetic to individual rights view. Obviously, RPGs, handheld SAMs, and machine guns are likely to be far more effective in achieving this goal than mere handguns or hunting rifles. The insurrectionary theory of the Amendment is at odds with most arguments claiming that the Amendment only protects the right to own weapons that don't pose grave risks. After all, the most dangerous weapons are often the ones that can most effectively be utilized by a resistance movement opposing the government.
I come to improve the individual rights view of the Second Amendment, not to bury it. However, advocates of the theory will need to develop a more compelling account of the scope of the individual right in question. That need will be even more urgent if the Supreme Court embraces the individual right theory, as it may well soon do.
Related Posts (on one page):
- What Kinds of Arms do We Have a Right to Bear? A Question about the Individual Rights Theory of the Second Amendment:
- Saul Cornell on Parker:
On another note, does anthrax count as an "arm"?
I don't think most people rest their logic on insurrection theory. And when they do, I don't think they're envisioning citizens banding together Wolverine-style to blow up tanks or something. I think the vision is still more like self defense against the gestapo or whoever it would be rounding us up.
One might argue that this analogy is flawed because "cruel and unusual" seems to be an open reference to community standards, whereas "arms" refers to a specific set of objects. Of course, this only cuts against a broad reading of the Second Amendment; i.e., even if it is acceptable to read "cruel and unusual" as referring to evolving standards of decency, "arms" should be a static reference.
I am not sure about this analogy, and there are probably better ones, but I look forward to reading what the many analytic minds of VC have to say about it...
I actually don't have any idea what the second amendment really means - I'm not well studied enough to participate in this debate in a significant way.
What I want to know is, how did this happen? Seriously, it's very strange to think that in after just a couple hundred years we would end up without a clear consensus on what this amendment means.
There's always the possibility that the Supreme Court will chicken out and either refuse to hear the case or issue an opinion that either supports the collective right theory (if only because of the fear of those RPG's and Stingers) or somehow lands in the middle.
Of course, one desirable result would be the 2nd Amendment's incorporation under the 14th amendment, without which the current decision helps the citizens of DC, but does little or nothing for the rest of us - particularly those living in Massachusetts where we have a Constitutional clause that ties the right to keep and bear arms to "the common defense," and which our Supreme Judicial Court has ruled is a collective right. As a result, our overly liberal politicians have enacted gun laws that require a License To Carry Firearms (handguns, in MA legalese) just to own a handgun in one's home, never mind carrying it concealed.
Analogy to modern practice would probably allow rifles and pistols as these are personal arms but not grenades, grenade launchers, SAMs or the like as these are not. Machine guns would probably be out but automatic rifles allowed under the same reasoning.
That's not a fair comparison. At the time of the civil war, pretty much the only difference in armaments between the Patriots and the British was in cannonry. The rifles and muskets that each side used were comparable. And the Patriots had the ability to provide themselves with cannon very quickly. That is not the case now. Unless an insurrection involved the division of the nation's military, the balance of technology and weaponry would vastly favor the government.
You'd think, but you'd be almost exactly wrong. When you're drafting a document that needs to be accepted, at a minimum, by a supermajority of highly diverse States, clarity is toxic. You have to create a Constitution where most people can read it and imagine that it creates their preferred form of government. Imagine if, instead of the Ninth Amendment as we know it, the Bill of Rights included a lengthy, detailed list of all rights that are and aren't protected. The debates would be endless, and there would be no hope of achieving a broad consensus.
That being said, I think "keep and bear"-based regulations are supported by the text, which could be used to justifiably regulate things like artillery. (incidentally, were there any arms control regulations in place at the founding? The Brady Campaign to End Canon Violence?)
If we were to depart from the text (wrongly, I think), regulations that include "bearable" arms might reasonably be upheld on the grounds that the Second Amendment provides protection for the right to bear defensive arms. By the time insurrection becomes a viable option would SAM control laws really matter? On the other hand, if the citizenry is prohibited from owning defensive weapons an armed resistance may never have time to develop.
Bear in mind that this defensive interpretation wouldn't exclude things like grenades that could be borne and used to defend one's immediate security. An RPG would probably fit, too. Surface to air missiles? While they can be kept and borne, they are meant to attack targets at a much longer distance than even RPGs, thus they are probably not defensive. Large bombs? Certainly not. Biological weapons? Definitely not.
I should note that I think the text does not support regulations that include bearable arms, no matter their capactiy for destruction. Moreover, I doubt the defensive interpretation would appeal to a judge who would want to depart from the text, but it might be useful to avoid an absurdity argument.
Also, isn't this the reason the congress in the 1930's used an extremely high tax and extremely difficult licensing scheme to regulate machine guns rather than an outright ban on machine gun possession, because the congress in the 1930's rightly believed that Congress did not have the constitutional authority to pass an outright ban on machine guns regularly used by the armed forces and the militia??
The 2nd amendment is an individual right and gives us all the right to our own M-16, imho. I think an all out ban on possession of the M-16 type fully automatic machine gun is unconstitutional. I think a tax and licensing scheme similar to the former NFA act provisions would be constitutional as regards full auto weapons. I would also note that I believe of the 10's of thousands of fully auto machine guns licensed under the NFA, none or only 1 was ever used in a crime.
Says the "Dog"
Also, nothing in the text suggests an unlimited right to keep and bear any quantity or type of arms. I think it's only a dubious analogy with 1st Amendment rights that gets people thinking that way. The text could just as easily be understood as a right to keep and bear a certain minimum of arms.
As to figuring out what the minimum (or maximum if you don't buy my previous claim) might be, I think the individual rights view is in a much better position than the collective rights view. We have historical practice and the concept of the militia to help us out. Historically militia members were expected to turn out with standard infantry equipment and weapons.
On the collective rights view I find it hard to see how any limit could be set.
The states can regulate militias and the weapons they may possess at home, including having strict requirements for weapons which may only be owned by members of formally organized, state-approved &financed militias, and which must be stored at the armories of those militias.
Let's start with some definitions. Weapons which may not be owned by persons not enrolled in those formally organized militias, and which must be stored in armories, are those which weigh more than say, twelve pounds fully loaded, or those which are capable of fully automatic fire, or those which have magazines holding more than ten rounds, or those with non-inert (aka explosive) rounds. This is a rough &ready definition.
Did I mention the fitness requirement? Run a mile in less than ten minutes while carrying the fully loaded weapon if you want to store it at home.
I'm sure we'd all be awesomely polite given access to even more powerful firearms!
Said tongue in cheek, but with recognition of the grain of truth contained therein.
Actually, the necessary regulatory framework is already in place at the federal level in the definition of explosive devises and the greater regulatory scrutiny that applies to fully automatic firearms.
Also, Parker appears to distinguish between the "what Arms" question and the "what reasonable regs" question. The first question is resolved by Miller, says the Parker court, and the second by common law. I think the former question is a lot harder, and will pose difficulties for the Court. (Like it or not, I don't think SCOTUS will ever sign off on grenades and the like.)
I don't see how nukes could be too useful in overthrowing a government, given their indiscriminate killing of people on both sides of the hypothetical civil war. Thus, I think any reasonable second amendment interpetation can leave them out, although I don't see how "arms" could limit canons or fighter planes. Justice Black said long ago that the Bill of Rights need to be given a liberal construction, lest they become ineffective. This point has never seriously been in contention; in fact, Black's colleagues went even further than Black and held things not literally included in the text but essentially the same items to be protected. We therefore have some fourth amendment protection against wiretapping, and have a first amendment that protects symbolic speech and an internet that is neither "speech" nor "press". By analogy, there can be no question that our right to possess weapons to quell tyranny includes all military equipment reasonably necessary to fight a war. Nuclear weapons however, can be excluded since they aren't even needed, and certainly not useful, as a deterrent. Given that any civil war against an oppresive government will inherently involve both sides without one clear turf, nuclear weapons would not be useful, at least initially. Nuclear weapons can also be logically be excluded from second amendment protection when one considers that the right given to the people was a right to defense, which necessarily includes the capacity to engage in offensive maneuvers necessary to defense- but the framers gave us no right to possess weapons that cause massive destruction on a scale that, when balanced against its potential defensive uses against a tyranical government, the overwhelmingly dominating characteristic of the weapon appears to be its massively destructive properties, namely offensive ones.
Yeah, and if more people weren't religious cultists or white supremacists, either...
-having a vehicle with armor
-having a vehicle with treads
-having a vehicle with a top section that rotates
There are restrictions on large bore weapons like tank cannons and on the machine guns that tanks generally have, but the rest of the vehicle is completely OK to own, import and even drive around on private land.
You can even import the cannon barrel and then make your own breech block domestically. If you cant find an appropriate pre-86 machine gun for your tank, you can always fit it with a semiauto intead or substitute a different pre-86 machine gun. Total tax and background checks would probably be around 400-800 bucks for a complete tank, depending on how many machine guns it is equipped with (coaxial plus turret, etc). The biggest cost will probably be shipping and restoring the tank itself.
In short I think it would cover semi-automatic and short burst assault rifles and other forms of rifles and little else.
Also I think it is important to remember that even on an individual rights theory their is no right to personal self defense. If the aim of the 2nd amendment is to allow the people to revolt against a tyrannical government there is no reason for this to give you the right to maintain a weapon to be secure against robbery. In particular I see no reason that pistols could not be banned or that weapons could be required to be stored in a manner not allowing immediate access (unloaded, locked cabinet).
If these groups engage in criminal activity, we can arrest them. But as I pointed out, Waco and Ruby Ridge were both unnecessary confrontations. Look at the Montana Freemen for an excellent example of how those struggles could have turned out.
"Who are the Montana Freemen?" you may ask. They are a group that had a lengthy standoff with the feds but instead of attacking and turning them into martyrs, the FBI just waited them out. Eventually the nutjobs got bored and surrendered. No one was killed, nothing flashy on the news, no crazy people blowing up federal buildings in retaliation.
This is how you deal with crazy people that want to have gunfights in heavily fortified compounds. You wait them out. You US government controls the country, all they have to do is wait outside the compound and they eventually win. Any cost from waiting is infinitely less than the cost of attacking, especially if things go wrong.
As an insurgent army, the continental army didnt really own stuff separately from its members. The army was equipped with what the soldiers and officers owned and brought to the fight against the crown. If someone owned a mortar or a cannon, your batallion had a mortar or a cannon. The people didnt suddenly stop owning these weapons after the war ended.
You left out paintball tank games.
I recall an article by an American visiting Afghanistan (before the Taliban years) who noted that while playing basketball, he found that the players seemed to be almost polite with only gentle scrimmages. Now that is an armed society as he discovered after he was given a friendly warning to ensure no one's honor was challenged.
Such a society is unlikely to be an ideal to work towards and wish for- I think.
This is, I hope, a tempting case. It tempts for it favorably relies on the blunder of the Dred Scott case. It is an opportunity for the Supreme Court to overrule that mistake for broad interpretation of restrictions on the Congress re control over property rights or furthering safety of citizens in general.
Still, no harm in dreaming. It is unlikely that the ghosts of Dred Scott v Sandford will be laid to rest by this court, although should the Court decide to do so, the gross error in logic exemplified by that case will not be a helpful precedent for anything other than a precautionary warning of what not to base decisions on.
I think (my own opinion, and I'm obviously not a lawyer) that the 2nd was trying to guarantee three things:
1) that the federal government (and the state governments) would not do away with the militia, but that those governments would "well regulate" them, so that they were not merely drunken parties on a Saturday afternoon, frightening the womenfolk and accidentally shooting each other.
2) that the militia (composed of almost all of the males in the neighborhood) would take itself seriously, train for civic duty, whether it was defending against an Indian or British attack, a flood, a fire, ... whatever danger the community faced, and promptly respond when need or orders called for it. Modern laws disbanding private armies are in danger of running afoul of this idea; the good intention was to remove evil private armies, but along the way the good militia (not the National Guard) was disbanded (and the evil private armies, of course, ignored their legal disbandenment!)
3) that the people (whether or not they were in the militia) should be armed (if they wished to be) with arms appropriate for the defense of themselves, their neighbors, and their State. Hunting might be good practice, but was not one of the driving features.
Cannon were available for sale to private individuals (as were private armed ships) and some are known to have owned them.
Nuclear weapons ... really a strawman but they are beyond expensive, need to be maintained, and don't have much of a "do it again!" factor to interest most sane folk. If you've got the money and the desire, though, I doubt that any number of laws would keep you from having one.
Miller et all supposedly didn't show up at the USSC and the only presentation was by the government. I don't know what, if any, influence this would have had on the decsion, or its current value.
You left out the crucial details about the Montana Freemen. The local and state police refused to do anything about those nutballs because they were out-gunned. The feds refused to get involved.
Until the neighbors got together, borrowed some M-60 machine guns and 81mm mortars from a National Guard armory (funny how the guards somehow didn't notice anything) and began preparing to deal with the problem themselves.
This motivated the feds to get involved. To keep the local volunteer militia from doing the job government wouldn't do.
The FBI cordoned off their property and waited. Over time they cut off power and generally made their living conditions slightly less comfortable. About 3 months later they gave up. This is way better than the Waco approach.
Quite the contrary. If I wanted to be a tyrant, all I would do is say something like this: It was Arabs who flew planes into buildings on 9/11. It is Arabs who want death to America. Therefore, in the interest of national security, all Arabs or people of Arabian descent living in America must give up any arms they own, and must register with the secret police.
Most gun owners would not rise to the defense of the Arab population, but in would more likely agree with the policy, thinking that they are helping national security.
Need proof? Just look at WWII. Roosevelt said pretty much the same thing about the Japanese, and took it even further: He disarmed them, robbed them of their livelihoods and put them into concentration camps. Where were all the righteous gun-owners then? Why weren't they defending the Japanese? Why did our country slide a little bit towards towards tyranny? (A tyranny that Michelle Malkin thinks was a good idea!).
Let's put to rest this romantic notion of an insurrection of gun-owners against a supposed fascist government. Let gun owners have their guns: I don't care. But don't hold yourselves up to be the defenders of liberty that you claim to be.
This seems to be Amar's theory, and Balkin supports it here. I find myself in agreement.
This motivated the feds to get involved. To keep the local volunteer militia from doing the job government wouldn't do.
I am not familiar with this case, what was the problem? Because if the group in question wasn't doing anything that resulted in an imminent danger to the locals, the locals were engaging in a conspiracy to commit crimes against them.
No imminent danger = No self-defense
I recently moved to chicago and had no idea it had such a law. Would you mind filling me in on some of the details? Also, do you know of any shooting ranges that don't require you to own your own gun? (or a website/listing that contains the info?)
thanks
brian
No? I suspect that there are whole classes of well-known crimes that would have gone uncommitted, had the militia been properly armed and trained.
Consider police riots, for instance. An important element in police riots is that of substantial power disparity between an armed police force and the usually unarmed groups assaulted in the riot. Another is that police are trained to believe that they have the sole prerogative to use violence, especially believing that they may use it if they feel threatened, whereas civilians are deemed to be in the wrong if they use it even in self-defense. With an armed and trained populace aware of the right to self-defense, police riots would be nonexistent.
It may be true that police riots would be nonexistent, however it is equally plausible that civilians would be emboldened to riot more often. This would result in more deaths because rioters are prone to violence.
Maybe I could have put it better, but my point was that if an insurrection supported by a third of the people is righteous (and if it isn't, then what legitimacy does the US government have?), then the permissible weapons are those which allow an insurrection of that size to be successful.
In the face of greater weapons competence by the government, the competence of the permissible weapons also increases; but the disparity in numbers between the rebels and the government means that the rebels' individual weapons don't have to be as potent as the government's.
Let me add that I think the 'insurrection' theory is blatant romanticism; I'm just arguing inside of it. In my opinion, a better argument against gun control is that it presumes a recklessness, incompetence or criminality on the part of the people which isn't compatible with the notion that 'the people' can control their own destiny.
Which I suspect is why gun control is so popular with Liberals.
The problem with all of these theories is that if the Second Amendment allows the government to ban ownership of certain types of weapons on policy grounds (e.g., nukes), then there is no principled reason to say that it *doesn't* allow the government to ban the ownership of handguns. After all, what is more likely to cause problems in the real world? Some crazy nutjob spending his personal fortune trying to buy or build a nuke, or a thousand crazy nutjobs with handguns? (note, please, that I am NOT saying that all or even most people who own handguns are nutjobs).
You could easily make the "Fire" in a crowded theater analogy to certain types of weapon ownership, but why can't you make that same analogy to handguns, especially in densely populated urban areas where stray bullets might cause real harm?
The "defensive" weapons only rationale is also wanting. "Weapons" are by definition offensive, in that they are designed to cause harm, not shield the user from the blows of others (as opposed to armor, e.g.). You might use a weapon defensively, to harm an attacker before he can land a blow, but understood in that manner what is the difference between shooting the attacker at close range with a handgun, shooting the attacker at 300 yards with a rifle, shooting the attacker at 50 miles with an MLRS, or shooting the attacker at 10000 miles with an ICBM? So long as you are reasonably certain an attack is coming and you are using the weapon to prevent that attack, you can use any weapon "defensively."
At the end of the day, I think the 2A probably does broadly protect weapon ownership. Whether we need a Constitutional right to own (and presumably manufacture and sell) hand guns, automatic weapons, rocket launchers, large caliber naval rifles, intermediate range ballistic missiles, and so forth is a different question--we've got one whether we need it or not.
I suppose that since this right is controlled by the issuance of said letters of marque, then effectively, the Congress could un-authorize such behavior by just not granting such letters, and saying that only those who have such letters are authorized to own and operate such weapons systems.
That last sentence wins the prize for understatement of the year.
Nukes might be a bad choice because they are very difficult for individuals to build, but take chemical or biological weapons as a better example. I think most people would agree one nutjob with a pillowcase full of anthrax is more dangerous than a thousand with handguns. We have police and (in right to carry states) fellow citizens to challange shooters, how do you challenge somebody from going on a 'mailing rampage'?
I feel this is a difficult, but not impossible, task. (Certainly, if I was retained by the NRA to make such an argument, I feel like I could do it, but I am not sure it would be persuasive). However, I'd like to hear someone who is a true believer.
DISCLAIMER: I am someone who believes the 2nd Amendment is a collective right, that the right (though fairly meaningless) should be incorporated under the 14th Amendment, and that I think the DC gun law ban is dumb and ineffective, although perfectly constitutional so long as it has reasonable exceptions for military and national guard personnel. I believe gun bans generally do not work, and the threat of them prevent more sensible gun regulation (such as gun registration laws and ballistics databases) from being implemented.
I do not believe that the Swiss are allowed to keep "small arms up through fully automatic rifles." I believe most small arms in Switzerland are banned, as having little value to the militia. I could be wrong - I certainly have not researched the question. Perhaps someone could be of assistance here.
Given that we spend hundreds of billions of dollars a year on the former already, even with both domestic and international law banning such ownership, I'd still lean towards the former as more dangerous to society as a whole.
I think it is given that the draftsmen of the Bill of Rights were highly suspicious of the threats posed to personal liberty by a central government. One manifestation was a reluctance to establish and support a standing army (or navy.) Common defense needs were met by the general understanding that all adult males would be available to serve as a volunteer militia and would supply their own arms. If, however, private ownership of arms was banded or regulated, it could serve as pretext for the “necessity” of establishing standing forces controlled by the central government.
There is also a chance that there was at least a whiff of the “insurrection” notion in the minds of the drafters.
In either case, the right protected is ultimately collective since the referential context is that of service in a well regulated armed body. Technological advancements in arms and warfare have, of course, rendered historic objections to standing armies moot. Now days, the resources of a nation state are required to acquire the arms necessary to effective deter and defend from aggressors. Similarly, it is hard to argue with a straight face that any group of citizens could possess sufficient arms and training to withstand assault by the 82nd Airborne regardless of the scope of the liberty interest allegedly protected.
Now my buddies down at the range (I am licensed to carry) also tell me that the amendment protects their right to possess arms for personal defense. Could be, but if that right is protected, it is only in the penumbra of the actual language of the amendment. (in all other constitution matters, my buddies down at the range think that any judge that goes the penumbra route is a pointy headed pinko.)
All of which leads me to conclude that time has passed the 2nd Amendment by, at least to the extent that it can be reasonably argued to protect the individual right to possess any kind of weapon whatsoever without any governmental interference of any sort. That does not mean that I am willing to lightly surrender my right to own and use reasonable firearms subject to only a minimum state interference. I like owning guns. I like the fact that our peculiar society permits it. There is even something profoundly “American” about it.
There are certainly societal costs, however. Any reasonable person knows that just as often as an armed citizen successfully protects his home or store, some 12 year old gets his uncle’s pistol and accidentally shoots his best friend; or an angry spouse kills; or, as just happened yesterday in my home town, a boy friend gets in a fire fight with a thief and hits a six year old child.
Nor do I relish a legal environment where any yahoo can go to Walmart and purchase a 50 caliber machine gun. (I do think it might be fun to shoot one!)
There is also the question in my mind as to whether relatively unregulated firearm possession is necessary to the maintenance of a liberal (old fashion sense) democratic country. There are, after all, some successful democracies out there that more or less ban all firearm possession. I suspect that if the NRA tried to get an amendment adopted that said expressly what they say the 2nd says now, that the efforts would fail badly.
All of which leads me to conclude that through the interpretation of the 2nd Amendment as protecting a collective right subject to local regulation, we may have stumbled, as we often do, upon a workable and sensible compromise. It also has nice federalist aspects, permitting the folks in Chicago (sorry about that for those of you that live there) to take a different view than Wyoming.
As a gun owner I find the recent decision to be a Pandora’s box.
Now the etyology of the word may be argued, but in the day of its employment in the Constitution, from my recollection of reading items written in those days (and preceding times), "infringed" would have been used as we use "restricted" more commonly today. Even if one were to strain for the etyologic origin of breached, fractured, or whatever, the same result should ensue.
The result - no limit on kinds.
That does not meant that governments can not circumscribe access to certain materials that might be used to create "weapons," or regulate their importation, or regulate manufactures, etc., etc.
However, could we imagine governments restricting access to newsprint paper stocks? Well, some have, and do! You are free to print whatever you want, you just can't have paper and ink - or power to run presses; samizdat!
Nevertheless, what kinds of "arms;" any kind without limit.
All, With all the attorney's and scholars at this board, you would think that some of you could remember the portion of the Constitution wherein the missions of the militia are defined. You think that weapons appropriate for the missions assigned to the militia would at be protected by the 2nd Amendment at a minimum, heh? Well it reads like this ...If the militia is to repel invasions, what sort of arms are needed to do that? Hint: it isn't single shot .22 rifles homeboys.
Such a result, of course, would be fraught with danger - the only thing worse, in my mind, than George W. Bush violating the Constitution left and right is determining its content. But if forced to collaborate and cooperate, a more workable model of federalism, administrative law, and individual liberty might also develop as well.
I'm fully aware. You misunderstood my question. I was of the notion that handguns were still forbidden. The poster I was responding to assumed that because (reconstituted for militia use) automatic rifles are permitted, that you could carry a handgun. I was questioning that assumption.
What did interest me was this quote from John Lott in the Wall Street Journal:
"Swiss federal law now limits gun permits to only those who can demonstrate in advance a need for a weapon to protect themselves or others against a precisely specified danger."
If this is true, it could seriously undermine the whole argument as related to Switzerland in the first place.
Do you have any actual statistics to back this up? Because I believe you will find that defensive uses of guns (including the ones where the gun is never fired) far outnumber the types of accidents and criminal acts you contemplate, not to mention ther deterrent effect due to the knwolege of the presence of guns that are never even drawn.
Nor do I relish a legal environment where any yahoo can go to Walmart and purchase a 50 caliber machine gun.
Any "yahoo" can go into WalMart and buy a rifle or shotgun, and any "yahoo" can go into a gun store (in most states) and but a semiautomatic rifle. The machine gun bogey man is far overblown. Stupid or criminal people can get their hands on guns if they want to in any case. The main thing that WaMart and gun shops do is make life easier for the rest of us law abiding folk.
There is also the question in my mind as to whether relatively unregulated firearm possession is necessary to the maintenance of a liberal (old fashion sense) democratic country. There are, after all, some successful democracies out there that more or less ban all firearm possession.
Call them successful democracies, but they certainly value freedom less than we do. I recall having just such a discussion with a citizen of a democratic European country abou the 2d amend. The good subject explained to me, "You aMAericans love your freedom too much." That p[retty much summed it up to me.
I suspect that if the NRA tried to get an amendment adopted that said expressly what they say the 2nd says now, that the efforts would fail badly.
The NRA has a relatively non-radical view of the 2d amend--that is, they certainly don;t generlaly talk about the right of revolution. But I am pretty sure that if a "new and improved 2d amend" guaranteeing an individual righ to gun ownership, self defense, and probably most types of firearms was proposed, it could overcome the obstacles and be adopted as an amendment to the const.
If the first amendment were to read "...a free press being necessary .." would anyone seriously argue that the establishment of PBS or a congressional newsletter negates the right to publish newspapers?
For that matter, the preamble contains language explaining the reasoning behind the entire constitution. I haven't seen this language used to argue that parts of the constitution are no longer necessary and hence can be tossed out, although I may be uninformed.
It seems to me that the second amendment could read "...a militia being necessary to repel Martian invasions..." and this language would still be irrelevant. If the right is an individual right, than the state cannot determine the necessity of the continued existence of that right.
Alan Gunn, that's why no modern military anywhere issues handguns to its soldiers any more. Right.
Sarcasm aside, I think it's useful for everyone to remember that the military is a large, varied organization, made up of more than just infantry foot soldiers. The category "militarily useful" is thus much, much broader than some people like to assert. On the specific issue of handguns: Col. Jeff Cooper might have been right to disparage the handgun as being only useful "for fighting you way back to your rifle", but I can assure you that didn't mean he thought troops would be better off w/o being able to do so!
Actually, they have successfully tried it in a number of states since 1970. For example, Wisconsin adopted a state RKBA provision in 1998 with an affirmative vote in excess of 75%. I belive it carried in every county in the state (including Madison and Milwaukee).
Whether "original intent" of the framers or "original understanding" of the populace at the time the 2nd Amendment was ratified, it seems pretty clear that no one in 1791 had a notion that they would be protecting the right to bear categories of "arms" that had not yet been invented.
Actually, it bothers me that I can't come up with a good response to this question, since I am generally sold on the "original understanding" approach to constitutional law (the Randy Barnett viewpoint).
We saw a very similar issue arise in the ABM treaty interpretetion debate of the 1980s and 1990s (until the Bush Administration -- wisely, I think -- simply withdrew from the treaty.) The question there was whether the treaty's restriction on anti-ballistic missiles applied to "other technologies" that were invented long after the ABM treaty was negotiated and ratified. The Reagan and Bush 41 administrations said "other technologies" were not within the purview of the ABM treaty. (They were aided in this interpretation by the inclusion of that term -- "other technologies" -- in the treaty itself. Too bad the 2nd Amendment drafters didn't think to do something similar. That would at least resolve the "I have a right to a neutron bomb" canard.) Hence, the unfairly pilloried "Star Wars" missile defense concept of the Reagan Administration was deemed to not violate the terms of the ABM treaty.
So it looks like we all agree that the 2nd Amendment does not guarantee an individual right to keep all manner of weapons. I am not convinced by the argument that only weapons that one may "bear" are protected, if by "bear" we mean weapons that may be carried by a footsoldier. After all, this would protect the right to keep one (or many) shoulder-launched missile devices. Plus, since when did "bear" come to mean "something carried on one's person?" Doesn't "beware of Greeks bearing gifts" derive from that massive Trojan Horse Incident?
If the 2nd Amendment protects an individual right to bear arms, how can that right be taken away from a category of people (convicted violent felons?)
I see the theory when we're dealing with parolees, since they remain in the constructive custody of the applicable Department of Corrections. But what about citizens discharged from parole?
1.) Even if you believe (as I do) that the main purpose of the 2nd A. is to discourge tyranny, there's no real need for the individuals to own SAM's, RPG's, etc. in advance. In fact, that's kind of a strawman. In order for any guerrilla movement to be successful (and/or to be morally justified), it will have to enjoy the active support of at least 25% of the population plus the tacit support of an additional 25%. Under those conditions, if the 'freedom fighters' have an adequate number of handguns and .30 cal, semiautomatic rifles (plus ammo) at the *beginning* of the conflict, they will be able to gradually obtain their heavy weapons. If 25 to 50 percent of the general population is sympathetic to the 'rebels' then it is almost inevitable that a sizeable percentage of the Army will also be sympathetic.
2.) An unrelated question for all you people who are talking about Anthrax: Correct me if I'm wrong, but isn't *weaponized* Anthrax extremely difficult to manufacture, and way beyond the ability of some guy in his garage??
Randy R seems to think that his definition of liberty is necessarily correct. He's wrong. (His history is also wrong - almost no one else objected to the WWII intenments and it's not clear that peaceful objections would have been ignored, so singling out gun owners is absurd, even if it is essential to his argument.)
Gun owners have no obligation to defend liberties that Randy R finds important. If he'd like them to defend those liberties, Randy R will have to persuade them.
Randy R seems to believe that someone should defend those liberties. Fair enough. How does he plan to get others to do so (regardless of means)? And, wouldn't he be better off if some of those folks had the ability to do something other than write stern letters to the editor?
Does Randy R believe that gun owners necessarily oppose the liberties that he finds essential? If not, perhaps he should become one and get the ability to defend those liberties himself. Or, is that beneath him?
Amen!! And there you have a "principled* way to decide which arms should be covered by the 2nd A.: "Any weapon or device which is commonly used by DOMESTIC Law Enforcement ought to be covered by the 2nd A., and ought to be readily available to any private citizen who meets the same minimum mental / moral / legal / age standards expected of the average LEO."
If your friendly neighborhood SWAT team can run around with Tanks and belt-fed machine guns, the the average citizen ought to be allowed to have them also.
Yes, I am aware of thisd. But a clarified federal amedt. would be good, too.
no one in 1791 had a notion that they would be protecting the right to bear categories of "arms" that had not yet been invented.
The difference betwen the 8th and 2d amdt. original meangin is that in the case of the 2d amdt., the idea was to protect military, infantry weapons. The content of that defn changes over time, but the amdt. still should protect (modern) military, infantry weapons. In the case of the 8th amdt., the original intent was essentially to ban torture and grossly disproportionate punishments. Now, our defn of torture and grossly disprportionate may have changed, but it is clear that it was not intended to ban eg the death penalty. That defn has not changed. to say that the 2d amdt. wasn't intended to protect machine guns because they didn't exist is like saying that the 8th amdnt. might prohibit the electric chair because it didn't exist. Infantry weapons and capital punishment still have the same general meaning they did 200+ years ago. The changes are in the particulars, but that should not prevent reasonable minds from adjusting accordingly. But to claim that we now redefine the whole meaning of the amdts. beause our social mores have changed is another proposition, one that goes too far and is of another category.
We are living in a society where the average voter wets her pants at the thought Joe Sixpack owning a sawed-off shotgun, much less a SAM. It just ain't gonna' happen.
What society do you live in? NYC? Here in Texas, and, I'd wager, most of the USA, the thought of the average voter on Joe Sixpack owning a sawed off are more like, "so what?"
Same way their right to vote can I would imagine.
Spartacus: I'm in flyover country also, and I'm sure you're correct. Most of my friends and neighbors aren't the least bit afraid of 'evil' guns either. But unfortunately, National politics *IS* dominated by NYC, California, and the east &west coast "Blue" states, generally. Like it or not, they have the votes!
"Randy R seems to think that his definition of liberty is necessarily correct. He's wrong." Then please correct me as to what the correct definiation of liberty is.
"(His history is also wrong - almost no one else objected to the WWII intenments and it's not clear that peaceful objections would have been ignored, so singling out gun owners is absurd, even if it is essential to his argument.) " No, my history is correct. I said gun owners never objected to WWII internments, which you conceed is true. I single out gun owners to show that they had no interest in defending the liberty of the Japanese-Americans.
"Gun owners have no obligation to defend liberties that Randy R finds important. If he'd like them to defend those liberties, Randy R will have to persuade them." It's true that gun owners have no obligation to defend any liberties. Then why do they constantly say that they are needed to defend our liberties?
"Randy R seems to believe that someone should defend those liberties. Fair enough. How does he plan to get others to do so (regardless of means)?" We defend out liberties in many ways, through the courts, through elections, through civil disobediance, and so on. I'm not saying these ways are always effective, but there are other means. And don't get me wrong, guns MIGHT be a way to defend our liberties. I just haven't seen any evidence in our history of that.
"Does Randy R believe that gun owners necessarily oppose the liberties that he finds essential? If not, perhaps he should become one and get the ability to defend those liberties himself. Or, is that beneath him?"
Nope. I'm sure gun owners like freedom of the press and so on. But so far, we have had the writ of habeas corpus pretty much thrown out, we have a president who can declare any person an "enemy combatant" and therefore can strip him of all rights of due process, our gov't can engage in torture and rendition as it feels like it. These are all liberties that have eroded in recent years. These are also the exact liberties that any tyrant would first do away with. So far, not a single gun owner has used his 2nd amendment rights to protect any of these liberties. They may have used their 1st amendment rights, and all the other ways I enumerated above.
But the 2nd Amendment has proven to be utterly useless in preventing the gov't from taking away basic rights of US citizens. If you have any evidence to disprove this theory, I am open to it.
Weaponized anthrax is surely fairly difficult to manufacture, but then so is a Beretta 9MM. How many people could make a gun like that in their garage? In any event, the 2A does not protect the individual right to *manufacture* arms, it protects the right to *keep and bear* arms. Presumably this contemplates (as was true even at the time of the founding) that individuals will not make their own weapons.
As somebody once said (sorry I don't remember who) "America is at that awkward stage; it's too late to work within the system and too early to start shooting the bastards."
Seriously, I, for one, honestly don't understand your point. Are you saying that the 2nd A. ought to be abolished since it hasn't been actively utilized lately, or are you saying it ought to be strengthened, or what???
The Army, Navy and Marines have greatly expanded the capability of their own arms, and therefore have greatly expanded the necessary arms for states to remain free.
Personal warplanes (as they're neither land nor naval) may be limited, as may gunships to the extent of navigable waters in the pertinent states.
I'm not sure what you mean. For example, an amdt. that would make the original intent of the 2d amend. clear would have to be passed by 3/4 of the states. I don't think there are more than 12 hardcore blue states that could prevent the passage of such an amdt.
the 2nd Amendment has proven to be utterly useless in preventing the gov't from taking away basic rights of US citizens.
I hope you will not object to a lengthy quote from Judger Kozinski:
"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once." Silveira v. Lockyear, 328 F.3d at 570 (Kozinski, J., dissenting from motion for rehearing en banc).
The Montana Freemen stole their neighbors' land at gunpoint, among other things. They moved fences around the boundaries of their property well onto that of their neighbors and threatened the neighbors with firearms when the latter protested. They also deterred process servers trying to serve lawsuits by threatening to shoot them.
And the Freemen committed lots of other crimes, some of them federal, but the FBI and U.S. Attorney refused to act until the neighbors formed their own militia, "borrowed" machine guns and mortars from a National Guard armory, and began drilling for an armed attack on the Freemen.
The neighbors complained to the country sheriff, who refused to do anything because his men were very underarmed compared to the Freemen. The neighbors asked the Governor of Montana to send in the National Guard, but he refused too.
All state, local and federal authorities refused to do anything about the Montana Freemen until their neighbors began drilling to eliminate the threat themselves.
John W.,
At least one method of weaponizing anthrax was simple enough that individuals can brew the stuff. The Soviet Union developed that process because it wanted the means of making a bunch of the stuff quickly, using a few well-trained technicians supervising a bunch of poorly trained ones.
What is truly difficult, and requires an industrial-scale research &development capability, is developing a new means of weaponizing anthrax - one not known to Western governments, Russia or the former USSR. Only a government can do this secretly given the scale of the required effort.
For your information, the anthrax used on us after 9/11 was produced by a weaponization process unknown to any Western government, Russia or the scientists of the former USSR.
Gee, I guess the U.S. Marine Corps was pretty stupid then when it gave my father a .45 automatic to carry into combat on Okinawa. (The gun was later stolen from my father's home in Virginia by a burglar, who also took a silver pitcher, which he tried to fence a few days later in D.C., at which point he was caught. Since my father had reported the burglary to the cops, they were able to recover the pitcher and the gun from the perp. Because this was after the enactment of the D.C. gun ban, though, they returned the pitcher to him but not the gun, which struck me as outrageous. (I always thought that if there was a legal obstacle to delivering the gun to my father at his office on K Street, he should have insisted that they come across the river and hand it to him on the south end of Key Bridge. Unfortunately, he didn't feel as strongly about it as I did, and he didn't press the point.))
Obvioulsy I was speaking of an Article V Constitutional Amendment. If the NRA thinks it can get 2/3 of the House and Senate and 3/4 of the States, I say go for it.
KParker
I appreciate being corrected for an opinion without facts. Here are some facts:
National Firearm Deaths
Ages 0 to 19, 1999-2004
All Races, Both Sexes
(2004 is the most recent data available*)
2004 2003 2002 2001 2000 1999
Accidental
0-4 15 7 12 15 19 12
5-9 13 13 14 18 18 19
10-14 35 36 34 39 49 57
15-19 80 95 107 110 107 126
Subtotal 143 151 167 182 193 214
Suicide
0-4 0 0 0 0 0 0
5-9 0 1 0 0 0 0
10-14 59 73 86 90 110 103
15-19 787 736 742 838 897 975
Subtotal 846 810 828 928 1007 1078
Homicide
0-4 42 48 58 66 40 58
5-9 45 48 55 59 50 61
10-14 139 139 150 121 137 163
15-19 1578 1587 1567 1525 1549 1708
Subtotal 1804 1822 1830 1771 1776 1990
Undetermined/Other
0-4 1 1 1 0 0 3
5-9 3 1 2 2 2 0
10-14 6 13 7 4 11 13
15-19 49 51 58 50 53 87
Subtotal 59 66 68 56 66 103
All Intents/TOTAL
0-4 58 56 71 81 59 73
5-9 61 63 71 79 70 80
10-14 239 261 277 254 307 336
15-19 2494 2469 2474 2523 2606 2896
TOTAL 2852 2849 2893 2937 3042 3385
Oh, wait a minute, "The exact number of defensive uses of firearms (including the large majority where it isn't even fired) is not easy to determine . . . ."
So you don't have any actual facts at all to support your opinion?
Think I'll stand by my "reasonable" comment.
CA OR WA NM NY CT RI MA MD DE HI IL = 12 that are very blue. And I would say that OH PA VA IN and ME are borderline blue. That brings the total up to 17. Even AZ is getting bluer all the time because the refugees from CA are bringing their dysfunctional culture with them.
National Firearm Deaths
This data is only useful if you assume that defensive uses of a firearm must result in death. Of course, that is not the case. Yes, defensive uses are difficult to quantify. That doesn't diminish the fact that they are quite common.
CA OR WA NM NY CT RI MA MD DE HI IL = 12 that are very blue. And I would say that OH PA VA IN and ME are borderline blue. That brings the total up to 17. Even AZ is getting bluer all the time because the refugees from CA are bringing their dysfunctional culture with them.
You are right about the dysfunctional CA emigrees. I certainly don;t think it's a shoo in; NM recently passed a CHL law, so they might be counted to pass a 2d amdt. were it offered today. So did OH, PA, VA and IN. That's still pretty close, but if the 38 states with CHL statues can be counted on, we could pass the 2d amdt. today.
The Russian army was getting their helicopter fuel, parts, and ammunition from Russia, not from Afghanistan. If the US Army was facing a widespread insurrection in their own country, where would they get re-supply? And how much of the US Army would join the insurrection? (Very nearly zero if it was a leftist uprising, but one from the right would get a lot of sympathy.)
Perhaps it's unfortunate that a militia armed only with personally-owned weapons is not going to be as effective against invaders as it could be against its own government, but I don't think it's a real problem. If the US Army had to surrender and leave it to the people to reclaim their freedom, I'm sure there would be a lot of such weapons reported "lost in action" but actually hidden for the militia to retrieve later, not to mention the individuals, squads, and platoons that suffered a "communications failure" and "didn't hear the surrender orders". Also, there are a lot of heavier weapons that most machine shops could turn out, and a lot of explosives that can be home-brewed, if one doesn't mind running a small risk.
Weaponizing anthrax is very, very difficult. The most likely explanation for the attacks and their cessation is that just one man in one lab got one batch to turn out right - and hasn't been able to repeat the process. By contrast, gun-making can be a home industry. A Glock clone or a sniper rifle might be too difficult, but there are Pakistani villages where AK-47s are made by hand. That may be a special case in that the AK-47 was designed for low-tech manufacture, but AK-47s and IEDs are sufficient to make it very difficult for an army to hold onto a city without destroying it. As for hand-gun-like weapons, I suspect the old US Army "grease gun" (a very cheap fully automatic weapon like a large pistol) would be within most machine shop capabilities. Especially if you didn't rifle the barrel, accuracy being rather unimportant in a short-range full-auto weapon...