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...
Do you have a link for that? All I can find is this long-winded ADL report that has one sentence in the way of what you're claiming:
"County voters had scheduled a meeting to discuss moving against the Freemen by cutting their telephones and closing the county road near the farms, which perhaps helped to spur the FBI to action."
http://www.adl.org/mwd/freemen.asp
Now I'm sure they weren't just going to rely on strong words and stout hearts to close the road, but there's nothing about commandeering heavy weapons from the Guard armory.
I think that's a good example of what I was saying earlier though, that a "well regulated militia" is a legal creature of state governments that takes in every citizen able to carry arms, not a Hezbollah-style armed political party.
Nick
I don't see why my opinion of the 2nd Amendment has to do with anything. It's immaterial. But since you ask, I certainly don't ask for it's repeal.
My point, and it is good to ask, is simply that there is this romantic notion among gun owners, which has been argued here, that they are the true defenders of liberty. They argue that if our gov't should ever become facsist, (perhaps if a neo-nazi type were to take over the gov't) the only thing that will resist such a gov't tyranny would be the all the good folk who own handguns and rifles and god knows what else who would magically join in cooperation to fight the evil gov't.
On a less dramatic note, they often spout off that all our liberties are gauranteed by the 2nd amendment. I'm not sure what they mean by this (you would best ask them, not me), but the best I can figure is that they think that if the gov't were to start stipping us of our rights, they will fight back.
And so they pat themselves on the back and call themselves freedom fighters and all that. Now, if people want to hold onto their own personal delusions, I have no dog in that fight. But when the argument spills over to public policy arguments, then it is time to examine whether gun owners really are 'freedom fighters.'
As just one notable example, I don't recall too many gun owners defending the freedom of blacks during the civil rights era. From the Civil War down to the 1960s, blacks were denied basic freedoms, such as right to property, right to vote, even the right to shop and eat in the establishment of their choice. In the 60s, blacks could have availed themselves to the 2nd Am and fought gun battles in cities and towns across the South in an effort to secure their rights. Perhaps the NRA would have approved of such a tactic -- I don't know because they remained silent during the civil rights era. But the fact is that MLK and other leaders choose to defend their rights through other means, like the 1st A. And it got them most of what they wanted.
So my point? The Second Amendment has a lot going for it, and a lot against it. But arguing that it is some sort of protection against a fascist gov't, or that it protects our liberties is a laugh.
That's a logical construction, counselor, but would you mind pointing me toward the language in the amendment that supports your position?
Indeed, the idea of weapons where targeting or use decisions are made by superiors (in the sense of a national command authority for nuclear weapons, e.g.) would have been foreign to the founders. In the 18th Century, lines of communication simply were not good enough to allow centralized control of even the most deadly weapons.
Sure, there was some field direction from individual commanders, but that's true of personal weapons, too--the British square wouldn't have worked very well without coordination of muzzle-loader firing by individual soldiers, and even the Greek hoplites required centralized command to use their pikes effectively.
I don't have a link. One of the people I worked with had relatives in the area at the time. Theft of weapons from a National Guard armory was a federal crime even if they later magically reappeared, and the armory staff was also at risk. You are quite right that they did not intend to use only "brave words and stout hearts".
markm,
The anthrax used on us after 9/11 was not weaponized per the simple &cheap USSR mass production process. It was weaponized by a process which took us YEARS to reverse-engineer. A well-trained individual with a lot of expensive equipment could produce weaponized anthrax using the USSR mass-production recipe. No individual can produce weaponized anthrax using the process of the 9/11 anthrax.
Sorry, I apparently mistook you for someone who had a least a passing familiarity with the subject you were expounding on. If you'd like to get there, I recommend starting with the work of Kleck.
But it's only fair to give you a head start: even the lowest estimates are of an order of magnitude greater than the figures for gun deaths, and if you remove justifiable instances* and suicides** the disparity is even greater.
*(justifiable: if we're comparing defensive gun uses, then surely we can't count justifiable homicides on both sides of the ledger, can we?)
**(suicides: on the reasonable grounds that most suicides would have found an alternate method; after all, non-firearm suicides are a very significant fraction of all suicides, so clearly plenty of people do find it possible to kill themselves w/o using a firearm.)
However, there is also an aspect of this question that deals with political philosophy. The preamble of the Constitution starts "We the people of the United States..." The Constition delineates a government created by the people. This raises some interesting issues. We as individual people cannot grant something we do not possess. As an example, I cannot convey any interest to Ilya's house because I have no interest to convey. The government, philsophically speaking, should only possess rights that we as people have conveyed to that government.
Where then has the government obtained the authority to possess tanks, planes, or even nuclear arms? There are, as I see it, three answers. The first answer is that the government possesses such weapons without having been granted such a right in the first place. While this is a logical possibility, we generally would reject such an answer because it means that the government is acting without the consent of the governed and is, to some degree at least, tyrannical. Further, most people would agree that, for defense purposes at least, the government should have at least tanks, planes, and similar weapons to protect the citizenry.
The second possibility for justifying governmental possession of such weapons is that that right is conferred from the people as "a" people. This would mean that individuals do not have the right to possess tanks and planes, but society does. This answer also leads to troubling conclusions because it means that society has greater rights than individuals de facto rather than through voluntary association. There are some problems with this idea. For one, at what point does any group of people have sufficient mass as to outweigh individuals' rights? When there are 10? 100? 100,000? Second, what are the differences in rights between a group and an individual? Can a group take away an individual's life or property? If not, how do we distinguish between rights that a group has and rights that a group does not have? Once again, this quickly leads to some sticky areas.
The last answer is that we as individuals have the right to possess those weapons and have agreed that such a right is to be conferred upon the government. This answer means that we as individuals do have the right to possess tanks and planes and maybe even nuclear or bacteriological weapons. This answer, though, makes many people uncomfortable. If we as individuals possess such a right, does the second amendment effectively confer our exercise of that right to the government exclusively? Or do we retain such rights despite the second amendment?
This is an interesting question that extends far beyond constitutional analysis to political philosophy. I think it would be beneficial to see a law review article or even a book written on this subject to analyze it more fully. Randy Barnett makes a good start in Restoring the Lost Constitution when analyzing the source of rights and governmental power. He addresses the Second Amendment briefly, which is understandable given that the book is not about possessing arms in general but is more about constitutional theory. Murray Rothbard, among others, has addressed this issue in examining economics. I think it would be beneficial for someone to build upon Rothbard and Barnett and expand upon this idea.
Deacons for Defense
Lumbee Indians, 1958
There is no one correct definition. Moreover, liberty isn't a just a state, it's a process.
> I single out gun owners to show that they had no interest in defending the liberty of the Japanese-Americans.
And that makes gun owners different how?
No one is claiming that gun owners have special virtue. The claim is that they have the ability to do something beyond write stern letters to the editor.
One of the interesting things about gun ownership is that it merely makes gun use possible.
I find it interesting that someone unwilling to use guns would object to other folks not choosing to do so.
One consequence of an uprising is that the govt resists. Said resistance during WWII, when Randy R thinks that gun owners should have done something about Japanese internment, might have had interesting consequences wrt WWII. Perhaps Randy R will tell us why those consequences are necessarily acceptable for the temporary liberty gain. (Internment did end.)
> 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.
The revolutionary war appears to be one.
There are lots of ways for me to avoid automobile accidents and I've been successful in doing so. In Randy R's world, there's no reason for me to have seat belts or air bags.
Randy R seems to believe that tyranny is upon us, but he's basically sitting around waiting for the tyrant to give up or for someone to do something about the tyrant. His beef with gun owners is that they're not taking up arms to do his bidding.
Randy R agrees that becoming a gun owner won't make him oppose the liberties that he finds dear, yet he's still relying on the kindness of strangers to provide them.
I don't mind that he's unwilling to defend the liberties that he finds dear, but am curious why he thinks that it's wrong for others to maintain the ability to defend the liberties that they find dear.
The NFA excludes standard firearms, namely handguns, long barreled rifles, and long barreled shotguns that are not automatic (firing more than one round with only one press of the trigger). Everything else is classified and controlled through a tax stamp, which at the time was exorbitantly priced at $200. Classifications include silencers, automatic weapons, short barreled rifles, short barreled shotguns, destructive devices, and the magical catch-all, "All Other Weapons".
Private citizens (and entities) may own any and all of these weapons within the confines of their state laws provided they pass the background check required to procure the necessary "tax stamp". I personally have friends in various states that own machine guns, automatic rifles, 20mm rifles, cannons, and even anti-aircraft guns.
US v. Miller decided that since a "short barreled shotgun" was not "within judicial notice" as a common military arm, that the regulation of a short barreled shotgun by the NFA was not a violation of the 2nd Amendment.
What's a common military arm?
Because my wife and I live and work with the US military in Afghanistan I think we have at least a pretty good view of common military arms. In Iraq and Afghanistan soldiers are required to bear their weapons everywhere they go, so even a glance around the dining facility provides for a reasonable general survey. I'll be necessarily vague on exact numbers due to the informality of the survey and the consideration of not giving precise numbers to the people across the mountain who wish to do us harm.
Roughly 2/3's of soldiers have handguns. Roughly 2/3's of soldiers have an automatic rifle, sub-machine gun, light machine gun, or shotgun. All soldiers have either a handgun or rifle (AR, SMG, LMG, shotgun), many soldiers have both. Roughly 40% of the soldier's automatic rifles (M16) or sub-machine guns (M4) have an attached grenade launcher (M209). Some soldiers are issued heavy machine guns (.50 caliber M2) or automatic grenade launchers, but they are not required to bear these heavy, awkward, and typically vehicle mounted weapons everywhere they go, but they are still personally responsible for the control of those weapons.
We already have an existing legal framework that covers a great deal of the issues presented in the original post. I think that NFA will generally stand a challenge after an individual 2A precedent, though states further restrictions of NFA weapons will not. I can not imagine "sporting use" or the FOPA/GCA-86 "new machine gun ban" withstanding a such a challenge after an individual 2A precedent.
Just my thoughts!
I see that argument as a fallacy. You'd need, to make your point, to isolate any parameters that could possibly explain the extraordinary high suicide rate in Japan. One needs to address sociological and psychological issues to explain that phenomenon. In other words, if the Japanese would an easier access to weapon, I do not believe their society would experience a drop in suicides, I would rather expect the contrary to happen.
Guns are certainly not the only way to put an end to one's existence, but it is one to prefer for many - obvious - reasons: fast death, low suffering (if any at all, science can hardly tell...), higher chances chances to succeed. I would tend to think that pulling a trigger is much easier to do for desperate individuals than, for example, jumping down a cliff or building, cutting veins, stabbing yourself in an harakiri fashion, jumping under a train, etc. The split second between life and death being much shorter, there is less room for hesitation.
It is impossible to evaluate how many suicides could have been avoided if the individuals hadn't had an easy way to end their lives, but there is a rason why you can't possess a firearms in most states/countries if you are proven to have a medical history including bipolar disorders and depression.
I should clarify that background check of the NFA will stand scrutiny, but I wonder about the convoluted paperwork or the $200 "tax stamp".
Would the public stand for a convoluted approval process or special tax stamp to be required to publish a paper? Permits are required for large assemblies. Churchs have convuluted requirements to maintain their tax-exempt status.
I am not a lawyer or a constitutional scholar, though these kinds of questions do make me consider becoming one.
The civil rights movement didn't start in the 60s. It started in the 50s, and it was armed for self-defense.
In fact, the US gun control movement was basically a race control movement, a way to protect the Klan. (Someone else will post a link to Robert Cottrol's "Gun Control and the Constitution," and "The Second Amendment: Toward an Afro-Americanist Reconsideration" (Georgetown Law Journal 1991).) To this day, the most potent images of gun controllers are those of armed black men.
Again, gun ownership isn't an obligation to use a gun. It's an opportunity to use one when said use is perceived to be beneficial. Most US gun laws were pushed by racists who didn't want black americans to have that opportunity. Were their concerns as unfounded as Randy R asserts?
Actually, it was the Black Panther Party's arguments on this issue that brought me around to the gun rights position about 1970 (you know, shortly after the Chicago police made sure that Fred Hampton and Mark Clark didn't even get the chance to be in Cory Maye's current position).
I don't think highly of the Black Panthers at all. But at least when they went out committing murders and general thuggishness, they weren't doing it in my name, nor did they get a presumption of decency, as the FBI gets when it takes actions that cause 80 people to die.
My new book Armed America (Nelson Current, 2007) answers some of the questions about what arms were in common civilian ownership when the Second Amendment was ratified. I cite ads offering "hand grenadoes" for sale (probably equivalent to a modern pipe bomb in destructiveness), and the 1786 Boston ordinance prohibiting leaving loaded firearms in buildings (as a fire safety measure) that lists not only small arms, but mortars, artillery, and a bunch of other stuff that would qualify as "destructive devices" today. I don't think they included them on the list because they wanted to be complete.
There was privately owned artillery during the Revolutionary period, although I suspect that almost all of it (because of cost and its lack of utility for hunting) was owned by the various militia organizations.
If you look at the National Firearms Act hearings before the House Ways &Means Committee, you can see that even proponents of it, such as the A-G and his assistant, admitted that a complete ban on sale or possession of machine guns was beyond the authority of the federal government, because of the Second Amendment. Background checks for weapons seem unobjectionable from a Constitutional standpoint, as long as they have some reasonable relationship to public safety. But that's more a function of the person, than of the weapon.
Which are you more afraid of, a convicted felon with a .22 rifle? Or a law-abiding adult with no history of mental problems with an automatic rifle in his gun safe? It isn't the type of the gun that should worry you, but the type of person holding the gun.
There had been a real problem with Thompson submachine guns and Browning Automatic Rifles in the hands of gangsters--although much as happened with the assault weapon panic of 1989, any time more than six shots were fired in a gangland gun battle they all became "Tommy guns"--but what received little attention is that many of these full auto weapons were not acquired through retail channels, but by purchase from corrupt police departments and corrupt National Guard armorers. Especially in the Chicago area, gangsters owned many police departments, and just happens now, National Guardsmen were known to leave armories unprotected for convenient thefts.
I don't know of any instances where belt-fed machine guns were criminally misused in the run up to the National Firearms Act, and even today, these are simply too clumsy of a weapon for a criminal's purposes.
Automatic rifles and submachine guns in the hands of criminals and crazies are certainly legitimate concerns--but the same is true for hunting rifles, handguns, and knives.
However, studies have been done on this subject. Kleck's book recounts several studies that suggest that there is no net gain with respect to suicide form restrictive gun control laws, because of substitution of other methods.
I know that when I looked at the suicide data for DC from their 1976 gun control law, the reduction in suicide rates was about 1.5%--so low that it isn't clear that anything was accomplished by it. (But murder rates rose dramatically--in that sense, it "worked.")
the problem with statistics is that it can be used to come up whatever conclusion i want. for example, this study proved that the tough DC gun control laws did in fact decrease the suicide rate.
http://www.commondreams.org/news2005/0712-10.htm
US v. Miller decided that since a "short barreled shotgun" was not "within judicial notice" as a common military arm, that the regulation of a short barreled shotgun by the NFA was not a violation of the 2nd Amendment.
US. vs. Miller did no such thing. The only decision reached in that case was that the District Court in Arkansas had to actually try Miller and his partner. Read the decision and see for yourself what the USSC actually ordered: it remanded the case back for trial, and that's all it did.
Since Miller was dead by the time the case was heard and his partner plead to a charge and was put on probation, no trial actually occured. It is true that several Circuit courts have grossly misread _Miller_, but the fact remains that _Miller_ decided nothing more than "This case has to be tried".
For all the people who are saying that the Insurectist(sp) view is a very small part of the 2ed. Are you really that foolish. The right to revolt against the government is the reason for the 2ed. The Founders KNEW that ALL governments had gone bad. They KNEW that sometime in the future the Government that they were establishing WOULD GO BAD. ALL Government always had and always will. The 2ed is a way of slowing that down and of fixing it. Weither it is a ONE PERSON revolt or a general revolt that is what the 2ed is for. They also knew that the 2ed would be the the trip wire. That the Government would HAVE to get rid of it some how.
Husband setting up a M2 50cal with tripod and belts in the living room.
Wife - "Why did you buy that machine gun?"
Husband - "Because the Government doesn't want me to have one!"
The BEST answer possible.
I never said anything of the sort. I specifically stated that there are many ways to defend liberties, and I cited the 1st Amendment, civil disobedience, using the court system and so on. Nor did I have say it's wron g for others to maintina the ability do defend the liberties that they find dear. I specifically cited the civil rights movement as an excellent example of people who defended their right to own property, to vote and so on.
Please read more carefully, or else the point of debate is utterly lost.
"
"The revolutionary war appears to be one." Nope. The war was almost lost several times. The only reason we won it was because we had help from professional military men like Baron von Stueben who drilled our soldiers into a true fighting army, and because we had help come from France at a crucial point. Had the Continental Army relied mostly upon averages citizens and their guns, we would have lost the war handily.
"There are lots of ways for me to avoid automobile accidents and I've been successful in doing so. In Randy R's world, there's no reason for me to have seat belts or air bags." I don't understand this analogy. I am in favor of seat belts and air bags. Your point?
Randy R seems to believe that tyranny is upon us, but he's basically sitting around waiting for the tyrant to give up or for someone to do something about the tyrant. His beef with gun owners is that they're not taking up arms to do his bidding." Again, that's a distortion of my viewpoint. I didn't say that tyranny was upon us, but rather a significant eroding of rights (there is a difference.) Gun owners love to proclaim themselves defenders of liberty, and I ask, then where are they? If they DON'T wish to hold themselves up as defenders of liberty, that's fine. But if you are going to say that you will defend libery with your guns, and you don't, then you open yourself up to the charge of hypocracy.
"Randy R agrees that becoming a gun owner won't make him oppose the liberties that he finds dear, yet he's still relying on the kindness of strangers to provide them." I don't understand this one either. I have no interest in owning a gun, and I have no interest in opposing the liberties I hold dear. I don't rely upon the kindness of strangers to provide for liberties -- Instead, I give money to organizations such as the ACLU so that they can fight on my behalf. I write letters to the editor. I blog, such as here. I have protested in street marches many times in the past for various issues. Whether those succeed, I don't know, but at least I am doing something. And I'm doing it without taking advantage of the 2nd Amendment. Perhaps other gun owners are doing the same things I am doing, and I applaud them for doing it. However, I do NOT see any gun owners taking advantage of the 2nd A. to provide for our liberties.
Again, if you can give any examples, I would be happy to view them.
It's almost like when confronted with something new, people have to put you in a box with a label. They have to figure out, are you a liberal or conservative, and then once they can put a label upon you, then they begin the attack. But they can't actually debate the ideas. Presumably, it's because they cannot think outside of their own box.
That is fundamental human nature. As a human, you should know and expect it. Blog comment threads are a difficult medium in which to have a reasoned exchange, because the commenters normally don't know each other offline or elsewhere online, and don't read each others' comments often enough to develop a sense of the person beyond basic pigeonholing.
Thanks, Ambrose. That is exactly my point.
"The right to revolt against the government is the reason for the 2ed." There is no right to revolt. If you do attempt to revolt against the gov't, you will be charged -- quite rightly -- with treason. You may wish to brush up on your Civil War history lessons, and read the Constitution and the 14-16 Amendments regarding traitors who brought arms against the gov't, if you still have any confusion.
Of course they did need congressional approval to actually USE all those cannons and rockets and guns and whatnot.
Now, if this study had examined how suicide rates had changed as various gun control laws were passed--an interrupted time series study--that might be interesting. But simple correlation of suicide rates and gun control laws means as much as the correlation between ice cream cone sales and rape rates. (Hint: they are connected, because both are functions of high temperatures. More heat sells more ice cream cones--and causes more victims to leave windows open at night, allowing rapists entry.)
Utterly wrong. Gun accidents? They're noise relative to murder and suicide. And murders within family, while not trivial, aren't a majority--not even close. I think you have confused the "known to" statistic that appears in the FBI UCR with "family members." The "known to" means not just family members, friends, but also your neighbor, your drug dealer, your pimp, a person you've met a few times but may not even known their full name. See the summary of Table 9 of the 2005 UCR: And remember that more than 1/3 of murder victim/offender relationships are unknown. See here for a detailed table.
Even for that 22.4% that are family members--what's the surprise? Those are people that you know well, often love tremendously, and when someone feels betrayed--they often take revenge.
You have some evidence for this? For 2005, Table 9 Expanded Homicide Detail shows that 135 victims were men killed by their wives--or less than 1% of all murders that year. "Strangers" committed just under 14% of murders. By circumstances, 88 of the murders are categorized as "burglary" and 921 a "robbery." Combined, that comes to 6.8% of all murders. Remember that if someone forces entry into a home that they know to be occupied, the police will categorize it as a robbery, not a burglary. We don't know how many of those classed as murders committed during a robbery were in one's home, and how many were done elsewhere.
You know, a little data goes a long ways to correcting ignorance.
You missed my point and I am sorry if I was not clear enough to start with. I am not to suggest statistical efficiency of using guns in suicides is relevant. Since I haven't looked at the problem closely myself, I couldn't claim authority in that field anyways.
However, I meant to imply that, by all logic, guns are believed to be preferred for different reasons. First, their efficiency. Although your claim is that they are not significantly more efficient, the words you used to introduce your findings were "Oddly enough, guns are less effective for suicide than most people assume", which brings me to think you are aware of that popular impression and logic. I need not to insist that popular culture has integrated that belief. For example, how often would you see, in a movie, a character survive to a gun shot in the head? No matter how close to reality the hollywoodian perception may be, I trust we can expect a person with suicidal tendencies to look at a gunshot to the head as being more likely to kill him/her promptly than most other ways to attempt killing one's self.
Secondly, another obvious "advantage" to using a gun to commit suicide is to bypass natural instinct of survival and natural defenses. You justly point out a subject may flinch, in which case the shot is likely to inflict wounds rather that to kill the person. But we all can figure out how psychologically easier it is to simply pull the trigger than, for example, jumping in empty space, cutting veins or stabbing the stomach. A physiologist could dig deeper as to how, technically, the cerebellum and cervical lobes are responsible for such responses but, again, I am confident with my assertion that it is easier to pull a trigger than to use many (most? all?) other traditional ways to commit suicide. In simple terms, it just takes less courage...
If you were to put, on one table, a rope, a knife, arsenic and a gun, and would invite one person who is under the impulsion to commit suicide, which "tool" would the subject be likely to pick up in first choice? I think most people's answer would be to naturally lean towards the gun. Even if I am wrong, logic dictates that having access to a loaded gun opens a door to suicide for the suicidal individuals. In that perspective, choosing to obliterate "suicides by guns" in gun related casualties statistics (as one commentor suggested) seems exaggerated to me since it goes without saying that there is no correlation between firearms ownership and melancholy, but there MAY be one regarding the accounts of those who did put their death pulsions to action. Un fortunately, I don't think we ever could demonstrate quantitatively how it operates. I am sure we can agree there are too many parameters that we couldn't take note of, were we trying to understand such problematic.
See Jefferson's famous letter after Shay's Rebellion, where he talks about how a little rebellion now and then is good for a country, and how blood is the nature manure of liberty. I think he spoke a bit too lightly of this, but you are, as usual, wrong.
Oh yes, see the 1784 New Hampshire Constitution's right to revolution clause.
Again, the ignorance is overwhelming. (Where do you teach?) We have not avoided domestic violence. Dorr's Rebellion, in Rhode Island. The Whiskey Rebellion. The Vigilance Movement in Gold Rush San Francisco. The Battle of Athens, Georgia in 1946.
The Great Railroad Strike of 1877, when armed labor unionists fought back against not only National Guard units, but the U.S. Army--and the Army had to retreat, because they weren't as well armed. In some parts of the Northeast, National Guard units changed sides rather than follow their orders to fire on non-violent strikers. In San Francisco during that strike, labor union leaders encouraged the mob to burn out Chinatown, and it was "the better class of citizens" using rifles to delay the mob that allowed the Chinese to evacuate without loss of life.
My book For the Defense of Themselves and the State (Praeger Press, 1994) has many examples of where armed resistance to governmental oppression played critical roles in changing the equation.
Fully armed population? About 40% of American homes have a gun in them--and in the Colonial period, it appears to have been far higher--at least 2/3 of probate inventories show at least one gun, and studies of militia age men (generally younger) in Virginia suggest that 90% is more typical.
Let's inject some data into this, rather than just emoting all over the floor. Criminology Professor Gary Kleck's Point Blank shows successful suicide rates (if you can call killing yourself a "success") for a number of different methods. Guns were 85%; hanging 80%; carbon monoxide poisoning and drowning were slightly less than 80%; jumping was a bit very 40%, with other methods far less successful.
Let me mention the effects of the 1976 DC gun control law on suicide. You can read more details in book Firing Back, pp. 119-25. Loftin, et. al., published a study proving that the law reduced rates of suicide and murder--by only using raw monthly counts, and ignoring a 15% drop in population during the study period. Calculating homicide and suicide rates per 100,000 population shows the following:
homicide rate (with guns): -14.2%
homicide rate (non-guns): +10.2%
homicide rate (total): -5.4%
Remember that some of that decline was probably because justifiable homicide would now get you arrested and locked up.
DC suicide (with guns): -11.6%
DC suicide (non-guns): +4.5%
DC suicide (total): -1.5%
Hmmmm. It appears that there was nearly perfect substitution of non-guns for guns with respect to suicide, and most homicides were successfully changed from gun to non-gun--and since this includes justifiable and excusable homicides, it may be that the murder and non-negligent homicide rate didn't drop at all.
Of course, Loftin, et. al.'s study conveniently ended in 1987--just before murder rates rose from about 37/100,000 to 80/100,000.
And this has what to do with guns?
- Alaska Jack
I never said it was a meaningful study. In fact, I didn't even read it. I merely was using it as an example that I can use statistics to prove whatever point I want. It would be interesting to see a study that compares the rates of homicides using guns to the number of suicide rates using guns in relation to level of control and demographics, but I was unable to find one in my quick search.
An interrupted time study would also have problems. For example, when do they measure the rates of gun violence? I would not expect introduction of new legislation to have an immediate effect because everyone would have simply bought there guns before the laws to effect. (We saw this with the changes in the bankruptcy law). I would expect that over longer time frames the law would have a larger effect. However, the farther away from the passage of the new law you get, the greater of an impact other variables would have. You would also have to account for the specifics of the law and how aggressively the law is enforced. Merely having a law on the books is meaningless if people know they can break it and not be punished. A law banning the sale, but not possession of a weapon would have much less of an effect than a law that also bans possession. A law that merely requires to wait a week before taking your gun home would have much less of an effect as a law that requires a rigorous background check. It also depends on how able law enforcement is at getting illegal guns off of the streets. A major issue with any controversial topic is how they account for these variables. I have not read any of the studies you appear to get your info from as you have either not cited them or I've missed the citations. However, I doubt that any study has accounted for every variable.
HAHA...very sneaky of you. I like how you say "Let's inject some data into this, rather than just emoting all over the floor." then provide partial data and emote all of the floor.
What is the p-value (or some other statistical equivalent) of these numbers? i.e. what is the probability that the drop in homicides occurred by chance alone. If it was .01 then it is very likely that the gun control laws had a significant effect.
You then continue to partially (wholly?) justify the decrease in the homicide rate on pure conjecture without providing any evidence that what once was classified as justifiable homicide is no longer.
Those methods work rely on the tyrants' good nature. Does Randy R really believe that that is an acceptable constraint?
> Nor did I have say it's wron g for others to maintina the ability do defend the liberties that they find dear. I specifically cited the civil rights movement as an excellent example of people who defended their right to own property, to vote and so on.
Actually, Randy R pooh-poohed the contribution of armed folk to said defense.
>"The revolutionary war appears to be one." Nope. The war was almost lost several times.
So what? There are no guarantees for any means of resistance. Moreover, surviving until allies appear seems pretty valuable.
Heck - fighting even though allies aren't showing up seems worthwhile - such as the Warsaw Ghetto.
> There are lots of ways for me to avoid automobile accidents and I've been successful in doing so. In Randy R's world, there's no reason for me to have seat belts or air bags.
> I don't understand this analogy. I am in favor of seat belts and air bags. Your point?
Randy R has repeatedly stated that gun owners haven't acted in defense of some liberty that he finds important. From this he concludes that gun owners aren't willing to defend liberty.
My point is that gun owners arguably haven't felt that their liberties are threatened "enough". That doesn't mean that they won't defend liberties that they care about when those liberties are threatened.
>> I didn't say that tyranny was upon us, but rather a significant eroding of rights (there is a difference.) Gun owners love to proclaim themselves defenders of liberty, and I ask, then where are they?
That statement only makes sense if Randy R believes that gun owners should have started shooting. Since they have every resistance option that he has, he can't conclude that they're not doing exactly as he is now.
>But if you are going to say that you will defend libery with your guns, and you don't, then you open yourself up to the charge of hypocracy.
Maybe it's best that Randy R doesn't have guns, because the above implies that he thinks that any abridgement of liberty justifies shooting.
Actual gun owners seem to be more sensible. And for that, they're damned by Randy R.
>> Randy R agrees that becoming a gun owner won't make him oppose the liberties that he finds dear, yet he's still relying on the kindness of strangers to provide them.
> I don't understand this one either. I have no interest in owning a gun, and I have no interest in opposing the liberties I hold dear.
I asked if becoming a gun owner would change the liberties that he found dear. Randy R wrote that it wouldn't. However, we find that he's unwilling to use a gun to defend said liberties. That leaves him relying on others if his words are insufficient.
I've nothing against words. However, they have limited power by themselves. Sometimes the powerful words are those that incite shooting, an option that Randy R is leary of.
>However, I do NOT see any gun owners taking advantage of the 2nd A. to provide for our liberties.
That's relevant iff Randy R believes that someone "needs shooting", or at least should be threatened. Perhaps he'll be so good as to provide the relevant details.
The above suggests that Randy R believes that armed action is justified, if not required. If that's true, why isn't he obligated to take up arms? (If it's true, mere words have failed.)
If he doesn't think that armed action is appropriate now, why is it wrong for gun owners to have failed to take armed action?
One more.
One of the interesting things about seat belts and air bags is that if you wait until you need them, it's too late to get them.
Perhaps Randy R believes that it's not yet time for him to take up arms. That's a reasonable belief even though he criticises gun owners for abstaining now. However, guns may share the "if you wait until you need ..." characteristic.
Note that one of the flash points of the american revolution was an attempt to seize guns....
I agree with Randy that habeas corpus is a pretty big one as it protects against political imprisonments and other perversions of the legal system. yet, it appears that those who make the most use of the "protection" argument are also those that most support the revocation of habeas, namely conservatives.
"Note that one of the flash points of the american revolution was an attempt to seize guns...."
- does this mean that the only right worth fighting for is the right to own guns? that is an extremely limited view of rights.
-NickM
-cpugrad
-Clayton Cramer
-Alaska
-john w.
-Jim FSU 1L
The first cut for me is whether the term arms makes a relevant distinction to the drafters and the public at the time of ratification. Dictionaries of the period show a distinction between arms and ordinance. Arms includes rifles and pistols, i.e., guns that can be carried. Ordinance referred to cannons, artillery, naval guns. This distinction embodies a portability principle: if it is light enough to be borne on your person and comfortably used by one person, then it is an arm. The benefit of this first cut is that it fits with the history and the framer’s intent and excludes nuclear weapons, tanks, jet planes, aircraft carriers, etc. The flaw is that it includes body armor, rocket propelled grenade launchers, and weaponized anthrax.
One reply is that body armor and weaponized anthrax are not guns. A more persuasive one -- as the text does not say guns, or even firearms -- is that all lethal things are not arms. A poison-laced pie is not an arm, we can safely say, though it is lethal. We can safely say that poison rings are outside the scope of the Second Amendment. So too can we exclude weaponized anthrax. That leaves body armor on the table, except body armor -- contrary to what Marty Lederman says, is not an arm. Body armor is not even a weapon or a lethal thing. RPGs, however, come in under this first cut distinction.
Another criticism is that the portability principle is contingent on technology. What if tanks become light enough to carry? What about suitcase nukes? The problem with these hypotheticals is that they are not very well thought out. If tanks are light enough to carry, then our industrial process can probably produce hand-held weapons powerful enough to have obviated the need for tanks. And suitcase nukes require access to plutonium, which is neither an arm nor freely accessible. Government can certainly regulate access to and handling of radioactive materials before they are combined with weapons. There is nothing about a direct analysis of the Second Amendment that requires answering a second-order and steps-removed hypothetical like that of the suitcase nuke.
Furthermore, making law contingent on technological advancement is not out of bounds. Kyllo is an example of the flexibility of Fourth Amendment doctrine and Planned Parenthood v. Casey, in rejecting the trimester framework in favor of a viability standard, is dependent on technological advancement. As we perfect our incubation technology, the scope of unrestricted abortion rights shrinks as viability creeps up. I think the Parker “commonly-held” test is workable enough, but the portability principle is even better. It cuts out of the picture certain machine-guns that are technically arms but for the fact that no one person can carry and set them up and fire them without another person to manage the bullet feed and otherwise assist.
There are many historical materials that could justify an even broader definition than I have set out above. But I do not think a much broader definition is defensible. When viewing the historical materials, it is useful to keep in mind the rhetorical style of the time, which heavily relied on synecdoche and like techniques. When President Jefferson says “I’m going to bear arms against France,” he means he will muster the entire military might of the United States against a foreign nation, which obviously includes ships and cannons and today would include ICBMs. When Alexander Hamilton says, “I’m going to bear arms against Aaron Burr,” he means he plans to shoot him with a pistol. He does not mean he plans to strafe Burr’s house with an F-22 or drop an aircraft carrier on it. I believe this is particularly relevant to Federalist Papers No. 29 and 46.
While I sympathize with the “I should have whatever the SWAT Team has” argument, the question is what the scope of the individual right to bear arms is, not what arms can an individual have access to when he is a part of a standing army or a militia. I agree that the ability to put fear into the SWAT Team is of a piece with the deterrence values inherent in the insurrectionist justification. But my problem with the “Whatever the SWAT Team Has” argument is that the Second Amendment limns a federal right and SWAT Teams are local. The proper argument would be “What the Navy Has” or “What the Army Has” or “What Marines Have”, which takes us back to personal use nuclear warheads. While it is true that one can purchase nuclear weapons in inert, piecemeal form at government auctions and reassemble them (this was even on 60 Minutes), it is one thing for them to be available for sale and another thing for the Supreme Court to declare a right to government leftovers in nuclear warheads.
Obviously reasonable regulation comes in and we can look to the First Amendment and to the Fourth Amendment, and certainly there are dangerous situations envisioned by the precedents for both: government intelligence that if released would endanger American troops or spies; massive amounts of harmful drugs about to hit the streets for sale to kids. But dangerous scenarios, no matter how fantastic, are not novel. There are already state supreme court cases from the 19th century in Arkansas, Alabama, and Georgia that correspond to and invoke the individual rights model as well as proclaim there can be reasonable regulations. These dangerous consequences have already been considered for over a century by courts; they certainly were envisioned by the Founders. But, even if the Founders had not foreseen the consequences of an individual right to guns to deter tyranny and state supreme courts had not contemplated these dangerous consequences, the fact is that such reasonable regulations are already embodied in the National Firearms Act and the Omnibus Crime Control and Safe Streets Act, whose definitions of firearms track generally the portability principle.
That leaves us with the vexing consequence of the RPG. I have a few responses:
The NFA will be Constitutional when a tax on voting is Constitutional.
- does this mean that the only right worth fighting for is the right to own guns?
Nope. It means that once you give up guns, you lose an option for defending your other liberties.
It's like why you never let someone take you some place against your will. It's not the taking in and of itself that's dangerous, it's what happens after you've been taken.
If your other liberties are worth defending with guns, you can't give up your guns and then defend said other liberties. The same is true, btw, of speech.
So I won't have the right to carry a flashlight unless it is also used for military purposes?
1. Without looking through historical texts for examples, I recall that it was common to refer to "arms and armor" as separate elements of military equipage. Accordingly, I don't think that the second amendment encompasses "armor." Perhaps there is an offensive/defensive distinction to be made?
2. Not to be snide or nitpicking, but there is no "i" in "ordnance."
Imagine if an Army Colonel was asked to permit all his soldiers keep and use any Army weapon they wished. He would refuse. The resulting security, control, and accountability problems under this plan would completely undermine the Army's ability to be an effective fighting force.
Now imagine if this exasperated Colonel was asked if he wouldn't just lock up all the Army's guns in Fort Knox and be done with it. That would solve problems mentioned easlier... but no commander could agree to this plan, either. Clearly, the needs for access, timely distribution, training, and other issues under this plan would completely undermine the Army's ability to be an effective fighting force.
The regulation of arms in a functional military organization clearly requires comprimise. There is no way that making the Army completely useless could be considered 'well-regulated,' or how the Legislature could argue that such an army has properly attained its Constitutional goal to 'provide for the common defense.' It's unconstitutional to make an element of the government completely unable to provide the function that the Constitution mandates.
The 2A states that the militia is an effective fighting force, necessary to provide for the common defense. And although militia differs in important ways from the army, those differences do not outwiegh centuries of military experience and plain common sense: neither absolute weapon restriction nor absolute freedom will allow any military unit to be an effective fighting force.
The 2A may say that 'the right of the people to keep and bear arms, shall not be infringed,' but the words 'keep' and 'bear' and 'arms' and 'infringed' have an absolute need to be interpreted by 'well-regulated' and 'militia.'
It is impossible for a military organization to accomplish its mission without restrictions on arms: comprimise is vital. Unlimited access would prevent the militia from fulfilling its Constitutional purpose.
One distinction I often make is discussing this is that 'well-regulated' when referring to machine guns or military troops means 'capable of firing to a distinct point of aim.'
Firearms are distinctly aimable. It's possible to have an accident or blow through a wall and hit something you didn't intend to hit, but that doesn't take away from the fact that it fired where it was pointed. Weaponized anthrax and generalized explosive devices do not have that capability. (Knives, swords, and batons also have this quality of discernment.)
One might also read it as: A well regulated militia is necessary to the security of a free state. Therefore, the right of the people to keep and bear arms shall not be infringed.
However, one cannot plausibly read it to say that the states, or the National Guard, have the right to keep and bear arms, but the people do not.
As previous commenters have said, the Miller opinion suggests the people are entitled to the same arms as the militia.
It was still a justifiable homicide--but once you were required by law to keep your guns unloaded or disassembled, the likelihood of using a gun in a justifiable homicide declines.
If you point is that all statistics are bunk, and we just not even bother to look at them--well, fine. Some of us actually live in an empirical world.
1. This is news to me. I thought that the Bush Administration made a serious mistake, both as a matter of law and politics, with the Padilla case. He should have been tried for treason in a civilian court. They may have had compelling national security reasons to refuse to try him there out of fear of compromising intelligence methods, but if so, they should have tracked Padilla until he committed a crime, or was on the edge of committing a crime, which would not have compromised those intelligence methods.
2. A fair number of the people who argue for an individual right to bear arms are not conservatives at all. Some of the other commenters in this thread, for example, are friends, and I know that they are not conservatives.
3. The decision about when to pull the rifle out of the gun safe and go attack the U.S. government is not an easy one. As Jefferson wrote in the Declaration of Independence:
I confess that after the Ruby Ridge and Waco disasters--and with the long history of unlawful actions taken by the federal government against radicals in the antiwar era--I found myself when the Freeman standoff started wondering if it is was time to pull out the M1A, and drive to Montana, to take up position behind the federal perimeter. I know that many other gun owners were quite worried that this was going to turn into another pointless bloodbath.
Fortunately, the government seems to have learned something from Waco (or at least I hope that was the case), and they just waited. The situations, as it turned out, were quite different. The Branch Davidians were sincerely misguided, while the Freeman group was really more of a check kiting scam with political pretensions.
You might want to read this article by me, "Rights and Revolution" that appeared in the May 6, 2002 Shotgun News about the tension between the right to revolution, and the need to wait until there is no question that the benefits of revolution exceed the costs. Widespread gun ownership is the last defense against a tyrannical government run amok--but the consequences of revolution are almost always a disaster, and it requires a disaster of enormous proportions to justify unleashing the dogs of civil war.
Perhaps we are looking at it backwards. Perhaps the 2nd covers all arms, from a kid’s slingshot to a nuclear warhead, in the same way the 1st Amendment covers all speech.
If we start there is seems clear that even under the most liberal interpretation many arms can be banned. Even under strict scrutiny no one is going to seriously contend that nuclear warheads cannot be banned. RPGs might well be banned where a cannon might not because of the mischief you can do with an RPG that you can’t do with a cannon (The military is very good at finding and destroying artillery pieces, and not so good at finding a guy with an RPG.) At least such an approach would be consistent.
The Constitution wasn't written with the intent that it would be or become so convoluted that the average person couldn't understand it.
To expand on that, law wasn't supposed to become so horrifically expansive and all-pervading that one has to have a JD and a Westlaw/Lexis/Nexis account in order to know how to research bazillions of regulatory and statutory messes to figure it out and STILL need some judge to decide if you got it right.
The language of the Second Amendment is straightforward, clear and absolute. I don't think it needs a lot of "interpreting," and the only kind of amending of it that I would (skeptically) support is to restrict possession of WMDs.
This, of course, begs the question: what is a WMD? VPC, Brady and the like have tried the ploy that since a gun can conceiveably be used to kill hundreds, thousands and perhaps tens of thousands in the lifetime of the gun, that a gun is a WMD. This is mere sophistry and unworthy of consideration. Same could be said of a rock.
A WMD would have to be measured in a single-instance map-sections-of-devastation it could wreak. A WMD would have to affect something like at least one map section with a projected kill (or critical injury) rate of, say, 80% of humans in ordinary conditions (not specially protected).
Such an amendment would read something like,
"The Second Article of Amendment to the U.S. Constitution shall not be construed to allow the people ownership or carriage of weapons of mass destruction as defined as follows:
A weapon that in one detonation could destroy 80% of human life over an area no less than one square mile.
Congress shall have the authority to provide a specific list of prohibited weapons by statute according to these standards."
Statute could then be rendered to list specific weapon types (i.e., nuclear blast weapons over a certain magnitude, radiation weapons of a particular potency, specific weaponizeable poisons and biologicals).
I think all the "hand carried" and "standard military or militia use" arguments get too convoluted and are a playground for mischief.
One of the beliefs of at least some of the Founders was that when government wants to take weapons out of the hands of the people, that was a clear indication that it was time to make sure we had them. Hence the point that gun rights are perhaps the ultimate insult requiring replacement of that government.
I've always thought that when any politician or official wants to restrict weapons ownership, one should look to what he has up his sleeve that he wants to do or has done that would make the people (or some of the people) want to use them against him or his efforts.
Someone above asked "what is liberty"? Liberty is freedom. But it isn't some absolute concept that means that you can do anything you want to anyone you want anytime you want.
Thus, the free individual is nevertheless accountable for his use of his freedom. But otherwise, he is free to do ANYTHING he wants. Again, the only restriction being the rights (real rights, which I list as the life, freedom of movement, and property) of others.
So, non-WMD weapons restrictions would amount to what you do with them that impacts others in a direct, meaningful way with regard to those rights either through action or negligence.
Let's not forget that the most deadly creation of the human is government. Armies and government policies destroyed how many hundreds of millions of lives in the 20th Century? Legislatures, Executives and Courts have been used by industry and individuals to terrorize others, and have allowed it and even fostered an atmosphere of encouraging such. Perhaps we should ban government!
Ok, that last sentence was tongue-in-cheek, but the point about the hazards of government is well-documented.
And it's well documented even within this country. A favorite example for me is the Bonus March. Check it out. McCarthy sent two vipers (then-Majors Eisenhower and Patton) to "deal" with people who were peaceably collected to ask for prepayment of WWI bonus promises. They did it with tanks and fire, severely injuring many and killing some.
The myriad laws, incomprehensibly written, stashed in myriad collections of "law" and scattered in pieces all over various codes (including "administrative law" which only euphemistically "isn't law" requiring congressional passage and therefore which is illegal under the Constitution) and precedent (stare decisis is overrated) are a violation of the concept of a reasonably researchable and comprehensible body.
When even those with JDs and 140-180 IQs still need an "interpreter," there's something terribly wrong.
Keep the Second Amendment as it is. Get rid of the renegade notion of 14th Amendment "incorporation," that has been interpreted into existence and allows enumerated and protected rights to be run over and pretended out of existence, and let's start makng administrative agencies "advisory only."
Make courts obey the rules of procedure (no more "that's the law, and how it's handled is another matter"), make Congress and the Executive obey the laws, punish them when they do not--i.e., when Congress passes a patently obvious violation of the Constitution, when the President signs it, when administrative agencies make and/or enforce "rules" and when courts ignore procedure and law. No more administrative courts.
The insults to the Constitution and moreover to the freedom that it and the government it created were intended to protect are manifold. Now more than ever, the only thing slowing the march to tyranny in our country is that you and I and 120 million others have pea-shooters, and that some, at least, in the military and our police-state agencies would turn against it.
Does the Second Amendment and do gun owners provide protection of freedom? Yes, within limits, and strictly by the fact that they exist. No one has decided it's time (if it ever will be time--God forbid!) to start shooting.
But water down the Second Amendment, keep it restricted to pea shooters by illegal maneuvers of law, and/or ignore (or start rounding up) those who care about freedom and own guns, and we'll see tyranny so fast it'll make your head spin.
Whenever you see statistics by a gun control organization touting reductions in suicides or crime, they will only reference 'gun crime' &firearm suicides.
Canadian study
Failed Experiment
In the army, weapon regs are a compromise necessary to fulfil its mission. Now the militia, though it is organizationally and missionally distinct, is much more similar to the Army than it is different. And it's quite clear that if the more capable, more controlled, more disciplined, more secure Army can't accomplish its mission without 'well-regulated' weapons access, then neither could the very similar, though less secure, militia.
The framers would not write that the militia is necessary for the security of the state, and then make a rule that made it useless for that mission. Common sense, Army doctrine, and Constitutional necessity all argue that military arms control has been and always will be a comprimise.
"The Constitution wasn't written with the intent that it would be or become so convoluted that the average person couldn't understand it."
Pff! Read the Second Ammendment and tell me it isn't intentionally vague! There is no way that anything but a short, vague, and general statement about militia weapons access would ever make it past a 66% vote and into the Constitution.
The document was written so that even EXPERTS couldn't fully understand it. That's because the document itself is a comprimise that needs to be interpreted. This should be no surprise, because running a just government is also a comprimise. This is how we know that the gun-prohibitionists and the gun-anarchists are the first ones to be wrong.
Anyone who says a private untrained citizen is allowed to keep and bear a fully-armed aircraft carrier (not a WMD, after all) is just batty. Especially when highly-trained Navy SEALS don't even have free ammunition choice for their sidearms... even if they were under direct control by the President while on national security free-fire missions.
No, you can't have a Carrier. Not yours.
That's the one part of my argument you actually understood. Congratulations.
I don't advocate that gun owners should take up arms against the gov't and start shooting. But then apparently, neither do you.
But you haven't addressed my basic point, which is this: If the point of the 2A is to protect our basic liberties as some sort of enforcement mechanism, then why has it failed to do so? And failed so spectacularly that not once have gun owners taken advantage of it to protect our rights?
If you can't really answer that, then perhaps the problem is with the assumption that the 2A is some sort of enforcement mechanism that the framers put into the Constitution to protect our rights. If that ist he case, then there was some other reason for the framers to put it in there. What is it? I don't quite know, but I haven't seen anyone here argue a cogent reason either.
I'm not blaming gun owners for failing to protect our rights -- in fact, that pretty much answer my question. When push comes to shove, we cannot count on gun owners to protect habeas corpus, or to protect us from being interned in concentration camps, or to insure that we have the right to vote, to own property, or whatever. Therefore, we must have other tools at our disposal, and I think the Constitution gives us those tools. WE have had an imperfect history, but in the long run, most of our liberties HAVE indeed been protected. And they have been protected because of the 1st amendment much more often than the 2A.
History has shown that it is much more important for us to fight for our rights through the courts and the court of public opinion rather than through violence, and the rights gained or protected are much more long lasting. Even the one exception, the Civil War, didn't solve the big question of civil rights for blacks. It freed them from slavery, no small thing, but it took another century of non-violent means to achieve the other lasting blessings of liberty.
It just goes to show: If you question any part of an ideology, then people assume you are totally against it. Not true. I can question this small of part ideology, that the 2A protects all our other liberties, but still be in favor of gun rights. But then it's much more difficult to put me in a box, isn't it? Andy keeps trying to assume what I think -- news flash: It doesn't matter what I think. What matters is whether I have made an argument or not. And so far, Andy, you haven't really addressed my main point except try to attack the beliefs you wrongly presume I have!
"At the time I did that work, I was not sufficiently comfortable with statistics to know how to apply significance measures. Loftin's study, however, claimed that a 7% decline in gun homicides and a 12% increase in gun suicides in the control group (the counties outside of DC) were statistically not significant."
- statistics are meaningless without significance measurements, especially when dealing with things that exhibit natural variation. The example of coin toss given in every intro to stats book should have taught you that. its a misuse of statistics to base a claim off of numbers without knowing how significant they are. as for loftin's study, assuming no other errors in the study design, it would appear from that single that the dc gun ban had no effect, however that still can't be generalized to saying that all bans are ineffectual or that all (most?) regulations are ineffectual. you still can't conclusively say the dc gun ban had no effect based on only one study...you would independent verification for that.
"It was still a justifiable homicide--but once you were required by law to keep your guns unloaded or disassembled, the likelihood of using a gun in a justifiable homicide declines."
This goes to what I was saying earlier. what was the compliance rate with the law? how was it enforced? how were the statistics collected? were they raw numbers or were they already adjusted to account for this? and you still lack hard numbers. this could account for .005% of the change in homicide rate or it could account for the full 5% change...there is no way of knowing. I would like to point out the inherent contradiction between the above statement and the following one also made by you: "Some of us actually live in an empirical world."
"But significantly, gun control advocates are prepared to use interrupted time series to prove their point (even if they have to do something improper like using raw counts rather than adjusting for population change"
- i like how your base assumption seems to be that gun rights advocates don't play with the numbers but that gun control advocates do. that brings your assumption regarding justifiable homicide into perspective. The only way you can tell if a study is flawed is by looking at the study. It is fair game to analyze assumptions in light of the authors known biases, but that holds true for both sides.
"If you point is that all statistics are bunk, and we just not even bother to look at them--well, fine. Some of us actually live in an empirical world."
- this is not my point. i live in a world of numbers and statistics. i'm an electrical engineer by trade and a current medical student. I know statistics, I know how to read and analyze a study, and I make heavy use of them in my normal life. I also know how statistics can be manipulated by people with an agenda (again, this goes for both sides). Without reading the studies, random numbers cited on a bulletin board are meaningless. (well, this is not really true. it is effective at shutting your opponents up as it would require vast amount of time to analyze every study cited on these boards...it is the reason i automatically suspect any statistics given by any ideologue on these boards. i've caught too many people in lies concerning controversial viewpoints, e.g. abortion, global warming.) Statistics is very useful as long as you know how to use it.
I am not familiar with waco, ruby ridge, or the freeman, as they happened when i was relatively young, so i won't comment on those incidents.
I don't believe that it has failed; I believe that things haven't gotten to the point where shooting is a good idea. Randy R apparently agrees that things have not gotten to that point. Unless he believes that there is no such point, he's criticising gun owners for failing to start shooting when he believes that shooting is inappropriate.
Randy R can't complain that gun owners haven't started shooting unless he believes that they should have started shooting.
> I'm not blaming gun owners for failing to protect our rights -- in fact, that pretty much answer my question. When push comes to shove, we cannot count on gun owners to protect habeas corpus, or to protect us from being interned in concentration camps, or to insure that we have the right to vote, to own property, or whatever.
I'll ask again - in which of those cases should gun owners have started shooting?
If the answer is "none" but there are cases where they should, gun owners haven't failed - the relevant conditions haven't been met.
> History has shown that it is much more important for us to fight for our rights through the courts and the court of public opinion rather than through violence, and the rights gained or protected are much more long lasting.
Ah yes, American exceptionalism combined with the belief that potential American tyrants will obey the courts.
It's a pair of easy questions. (1) Will american tyrants necessarily obey courts that do the right thing? (I see no reason to believe that courts are necessarily immune from deciding to go along with tyranny.) (2) If courts fail or tyrants ignore them, is there tyranny that would justify shooting?
> Even the one exception, the Civil War,
Randy R doesn't like the American revolution. (I note that "the courts" didn't solve that one.)
> it took another century of non-violent means
Except that the "non-violence" of the 60s was a product of armed action in the 50s.
If guns are so useless, why were gun control laws aimed at blacks?
I would also agree that a single experiment (the DC gun control law of 1976) isn't enough to draw a broad conclusion. Fortunately, there have been any studies done, in a variety of countries and American states, for a variety of gun control laws. What I can say with some certainty is that some categories of laws have been pretty well established to do nothing: the federal assault weapon ban. See Jeffrey A. Roth and Christopher S. Koper, "Impacts of the 1994 Assault Weapons Ban: 1994-96," NCJ 173405, (Washington: National Institute of Justice, 1999) here.
They found a 6.7% reduction in murder rates in the 15 states where the federal ban could have made a difference. But Roth and Koper also admitted that this reduction was not statistically significant. Because assault weapons had been used in a tiny percentage of murders before the ban, "it is highly improbable that the assault weapons ban produced an effect this large…." [See pp. 8-9]
What about the effects of rapid fire and large capacity magazines? "The ban did not produce declines in the average number of victims per incident of gun murder or gun murder victims with multiple wounds."
What about "protecting police officers," the excuse offered repeatedly for the ban? There was a decline in assault weapons used to murder police officers, but Roth and Koper also admitted that "such incidents are sufficiently rare" that it impossible to determine whether the law reduced total gun murders of police officers.[See p. 9]
I know that the change from discretionary to non-discretionary concealed weapon permit laws had no obvious effect of increasing murder rates in states that had low to average murder rates, and in at least one state, Florida, the murder rates fell quite dramatically after the new law took effect--and in a manner that implies that it was not a coincidence. See Clayton E. Cramer and David Kopel, "`Shall Issue': The New Wave of Concealed Handgun Permit Laws", Tennessee Law Review 62:3 [Spring, 1995]. 679-757.
While there has been considerable controversy about some stupid sock puppet tricks that John Lott played at one point, a number of economists have concluded that his claims about the effects on non-discretionary concealed carry permit laws seems to be correct: modest but significant reductions in rape, murder, and robbery. Even his harshest critics have a hard time showing statistically significant increases in crime associated with these laws.
The raw numbers used by Loftin and friends were all homicides, based on death certificates. They did not exclude justifiable homicides, and this has been a recurring strategy of gun control advocates--they insist on including all homicides, rather than excluding justifiable and excusable homicides.
I suppose that if I had someone with vast quantities of money available to fund such research, I could do it. Unfortunately, people with money (like the Joyce Foundation) are overwhelmingly on the side of gun control, and that's who funds nearly all of the research.
Concerning "how was it enforced?" This might be a useful question with respect to general gun ownership rates, but knowing that if you use a gun in self-defense that you can (and probably will) be prosecuted for having an unregistered handgun, or for having it loaded and operable in your home, will cause most rational people to think long and hard about drawing a gun until you are ABSOLUTELY sure that you are at risk.
You should probably educate yourself. Waco, in particular, started as a BATF effort to get themselves some impressive video (because their budget was up for review the following week) with a truly stupid raid, then turned into something far uglier. Waco: The Rules of Engagement is often run on cable TV channels, and gives a fair account of what happened--although not the later evidence of a pretty massive coverup of FBI use of incendiary shells. Paul Blackman and Dave Kopel's No More Wacos has a much more comprehensive account of how vast quantities of evidence--and money--"disappeared." Things like 6 1/2' foot tall steel doors that would have answered the question about who was shooting in the initial raid. That about $50,000 in cash, gold, and platinum, disappeared after the Texas Rangers turned it over to the FBI.
The more you know about these incidents in the 1990s, the more you will understand why there is considerable skepticism of giving unlimited power to the government.
Except that I don't. I've addressed Randy R's argument that gun owners have failed. (It's unclear whether he also believes that violence is never a reasonable option.)The problem with that argument is that said failure can only occur if they should have started shooting and didn't.
Randy R seems to believe that gun owners shouldn't have started shooting. We don't know the basis for that belief.
Maybe Randy R believes that there is no such situation or that it can't happen in the US or maybe he believes that we haven't been in such a situation. If the last, Randy R's "gun owners have failed" argument falls.
Since he's repeatedly refused to state why he thinks that shooting hasn't yet been appropriate, we can't go much further.
> He states uses a strange analogy about seat belts and air bags, that you dont' need them until you need them.
As Randy R well knows, that wasn't the only point. Another point was that seat belts are a good idea even if you've never been in a situation where they could have helped and don't plan to get in such a situation.
My seat belts have never protected me. Randy R would have us believe that that means that they've failed.
Iraq is fully armed? All citizens have handguns?
I thought IEDs were the main instrument of death in the guerilla attacks. Last time I checked, Iraqi guerillas were getting their explosives through the black market and not through lawful channels.
Hmm. The amendment was written very broadly, not vaguely. There is a huge difference between these terms. There is nothing vague about the Second Amendment and, in fact, most of the Constitution (except in the minds of "experts" and other people with an ax to grind).
And yes, the breadth of it is due to the fact that it had to have wide acceptance, and broadly written was the only way to get it. So?
So, I flatly reject your glamorization of compromise. What I see in the Constitution is not compromise, but letting everyone win--by freedom and self-sufficiency and being left to their folly (or secret sagacity) in their "castle" homes.
This is almost the antithesis of compromise, in which latter everyone loses to some "acceptable" extent in order to standardize everything. Yuck.
The only reason there is any difficulty with the Second Amendment's interpretation is because its history--and that of gun control and the Constitution in general--is all wrapped up in the sophistry of people trying to get around the fact that Blacks and Natives were human, also entitled to the rights. And that's the reason we have the 14th Amendment, too, which almost rates as a constitutional rewrite in some ways.
And thus the courts, trying to "interpret" through all the crossfire, got things really twinked up. So NOW it's "complicated," "convoluted." Get rid of all that "stare decisis" gibberish, look at the Constitution, and it's as clear as a bell. That's what our courts should be doing.
"Experts, schmexperts!" What was that poster I saw at work in the cube of a highly paid consultant? "Where solutions are untenable, there is a lot of money to be made from exacerbating the problem." Don't read so many "experts" and read it simply for yourself.
Um... I'd rather have a battleship, myself. But rc, I think the cost might be prohibitive. And furthermore, I really get a kick out of your choice: boats. Might just be there'd be no one out there to regulate me outta my battleship. Especially if I had that kind of money at my disposal. I suppose finding a friendly port might prove challenging, but I see the sea as more like the frontier than anywhere on land.
BTW, when you talk about militia and military specification of weapons and ordnance, are you trying to say that this should make some guns ban-able? What's your point, actually? It seems kinda... vague.
eh, symantics. Either word could mean that the issue's fenceposts are set apart, with room to roam. That's what I mean. The need for the militia to accomplish its mission (which requires regulation) is one fencepost. On the other end of the field, the need for protection of the people's rights is the opposite fencepost. For example, the choice to abolish the militia with its inherent right to bear arms is out of bounds: it's beyond the 'preserve people's rights' fencepost. So if you were to look at these guidelines and consider the wide playing ground between the two posts, I don't really care if you call the field 'vague' or 'broad'... just so long as you don't say 'ban all guns,' or 'gimmie a Carrier.'
"BTW, when you talk about militia and military specification of weapons and ordnance, are you trying to say that this should make some guns ban-able? What's your point, actually? It seems kinda... vague."
I'm saying that militia regs should bear some passing resemblance to Army regs. Both of them are military organizations, and no military unit can accomplish its mission without 'well-regulated' force control. You will never never never never read an army reg that leaves room for Joe Sergeant to be permited issue of a suitcase-nuke as his footlocker.
The only reason the Army would restrict arms and risk soldier death and mission failure at the hands of the enemy would only be if those restrictions were absolutely vital to the 'well-regulated' Army's proper function.
Either it's wrong for the military to prohibit Petty Officer Johnny from taking potshots at seagulls with tomahawk missiles, or the fact remains that the Army and the Army-resembling militia must have SOME form of force regulation.
On the regulation 'playing field,' I'm not saying exactly where to place that stake... only that the constitution requires that the placement fall somewhere within that vague BROAD field.
rc and all:
There's another point that deserves to be made here. It goes directly to rc's argument that everything must be regulated (the way rc is using it). And it helps frame the matter of "to what extent should individuals have weapons of war?"
On 9/11, what was the only force to score any hits on the enemy? It wasn't the Army, Navy, Air Force or Marines; it wasn't the FBI, the CIA, DIA or NSA, any state or local investigative/enforcement agency (state BI, police, sheriff), the Coast Guard, the National Guard, or any state guard. The centralized--regularized--model failed.
It was a few people, just regular-ol' spectacular, courageous folks, who evidently rushed a cockpit and foreclosed the jet's mission. It was a significant and meaningful hit, one from which our officials--and the people--should have learned something real.
This is the concept of "distributed" defense (in the same model as distributed computing), which is the same as militia.
NRA made a point of this--not the "distributed" part of it, but that in that moment, those who rushed the cockpit were militia, doing what militias do best--an extremely "local," self-directed and discrete action in defense of "home." It isn't the only thing they can do well, but it is the action at which they particularly excel.
A web journalist (wish I could attribute; I just don't have the name or publication any more) connected the dots to the fact that the action, and militia in general, is a distributed model for defense. He pointed up that it, like distributed computing, can, under the right conditions, deal with things better than the military, a centralized model, can.
I thought that was a brilliant way to model what happened there, and to advocate something that I intuitively advocated on that day, from the time of the second crash. I just hadn't figured out how to put it in words.
What I thought to myself was, "If ever there was an obvious proof that we should reinstate the state-guided militia, and encourage people to become savvy to its strengths, this is it." I actually thought that maybe GW was the man to recognize this.
How naive I was... His message was nothing better than "serve our centralized model by being extra eyes and ears"--a kind of watered-down-further Neighborhood Watch.
This was better than nothing, but it's not nearly as effective as a genuine distributed model, since it calls on us to do what all defensive-use gun owners know yields unsatisfactory results; by the time the officials get there and/or figure out what to do, it's already over.
I'm not sure it would be effective or desirable to have privately-owned aircraft carriers and battleships--or the land or air equivalents--out there. On the other hand, one never knows; such could provide the decisive input to turn things.
I think I recall correctly (hopefully Cramer can correct my recollection or expand further): in the War of 1812, the militia played a major, key role, and ultimately made the difference between success and failure.
Our country and its people have become dependent on the centralized model of a lot of things. We need to moderate that trend and put back individual and ad-hoc-group actions. This is why I advocate that most any weapon should be available to the people, with only the exceptions of major WMDs.
Here's a harsh reality that my new book addresses: there were things that militias were really, really good at--but often as not, in a direct challenge to British regulars, the militia had to outnumber the British many times to be successful.
My book more addresses the militia issue during the Revolution rather than the War of 1812 (when the militia had noticeably declined as an institution). The strength of the militia was that they were everywhere, in every nook and cranny of the nation, and even when the British achieved high body count ratios, it didn't matter, because the militia outnumbered the British regulars at least a hundred to one on a continental basis--and in any particular region, the militia outnumber British regulars at far higher ratios than that.
For guerilla warfare, the militia was extremely effective, since they knew the countryside far better than the British regulars, and the very best of the militias--the frontier riflemen--would kill British officers who didn't even know that they were in danger.
The downside of the militia was that they were, especially in the first year of the war, on average older and less physically conditioned than their opponents. They also were less inclined to stand their ground (on average) than regular soldiers, and more likely to disappear at harvest time, or when British soldiers threaten their homes and families. It is an understandable reaction, and perhaps you could argue that defending home and family is really the militia's primary duty, but it meant that the Continental Army would sometimes be embarrassed by the discovery that much of the militia had melted away.
But when the militia showed up in force, oh boy, were the British in for a whipping! There's one battle where 3000 riflemen came up over the Appalachians, not a regular among them, and gave the British such a licking that that army largely ceased to be an effective military force.
Even today, there's no question that in a head to head urban conflict between the U.S. Army and the militia, the Army would beat the militia even if they outnumbered the militia 15:1. But the unorganized militia of the United States is about 40 million strong right now. Even 40 million men armed with hunting rifles in an urban setting would force regulars to carpet bomb cities to regain control.
A tax on voting WAS constitutional until the 24th Amendment explicitly made it unconstitutional. I wasn't too impressed by Harper v. Virginia Board of Elections.
What no one seems to realize is genuinely scary (although I'd be happy to live with the fear), is that the 2nd protects the ownership and use of highly encrypted communications.
Yours, TDP, ml, msl, &pfpp
I agree with you: the distributed military model is vital. The framers also agreed with you when they said the militia was 'necessary.' Incidentally, I notice they didn't waste ink saying that the Army was necessary. I think this is because even back then, people were already trying to argue that the militia was irrelevant.
But with the admitted benefits above, the distributed militia can't fulfill its security mission in the face of anarchy. If every passeneger of Flight 93 was allowed to 'keep and bear' their own suitcase nuke, for example, no degree of grassroots resistance would have even been possible. A terrorist would have gotten a fake ID from a pimply-faced kid outside the liquor store, and the airplane would have been vapor.
Anyone recall 'Airplane,' where the terrorist bought a bomb in the airport gift shop? Very applicable here.
It also bears noting that none of the passengers on flight 93 'kept or bore arms'... though I think that is more ironic than relevant to kldimond's point.
kld: "I'm not sure it would be effective or desirable to have privately-owned aircraft carriers and battleships--or the land or air equivalents--out there. On the other hand, one never knows; such could provide the decisive input to turn things."
Oh come on! Don't be a dork! You know what happens on the fourth of july- boys and grown boys get fireworks, and then they blow shlt up. That's the way it should be, cuz this is 'Merica, dammit... but laserbombs and cruise missles in the hands of an untrained teenage boy is going too far.
There is no way a militia can accomplish its mission unless it is 'well regulated.' Those regulations might not look exactly like army regs, but for reasons I've already stated, those regulations should look a lot more like army regs than they do anarchy.
One man's dork is another man's genius, RC. I'd probably have to look far and wide to find someone who would call me a genius, but I guarantee you, it wouldn't be someone who argues with a phantom, as you do.
You see, as I've said a couple of times above, I would be amenable to restrictions on suitcase nukes and other real WMDs. So why do you bring those up with me?
From what I know of the comments in the consttutional debates and writings of the times--and again, Cramer and probably many others would be more versed in this than I am--there was concern about militia effectiveness in full military operations vis-a-vis a regular army. That's why an army was provided for in the Constitution. But I don't think militia was considered--or argued to be--irrelevant... especially in light of Cramer's elucidation a few posts above.
What was the situation in that airplane? Anarchic chaos gave way to an emanent ad-hoc organization due to someone's--or several someones'--recognition of the situation, and their leadership in dealing with it. To me, this is the very essence of the militia function.
As a side-note similar to your own, if there had been armed citizens on those planes, we might not have lost so many and so much in the attack. What I think is ironic is that it was only shortly before the attack (2 weeks or 2 months, I forget exactly which) that all non-federal-law-officer guns were officially banned from passenger flights. It had been a long-standing practice (airline policy, I think), but it became solidified policy (federal policy) only shortly before the attack.
Cramer already dealt with your comment about high-tech weapons as "fireworks."
The militia function isn't just to march into war. It is everything from that level of discipline and equipment down to what we saw on that flight--ad hoc organization emanating from anarchic and (can I coin a term?) "disarchic" chaos.
Come on, how many does it take for us to realize that this idea is ludicrous? Does anyone seriously think that scarcity alone is a sufficient factor to control weapons?
This is ridiculous. I mean, faced with the stultifying absurdity of suitcase nukes sold on the roadside, some people are responding with 'Yeah, but they wouldn't sell that well.'
'That well!?!' The problem begins when they sell at all! If Jack Bauer were here, he would kick. you. in. the. nuts.
The first test against ideas for militia regulation should be, 'would it work for the army?' Granted, the militia serves a slightly different mission, and its makeup is also slightly different... but on a scale from Army to anarchy, a 'well regulated militia' falls closer to 'Army' than 'bunch of ruffian nutballs in a free-for-all.'
The logic is clear. First, the militia looks more like the army than like anarchy. Further, there is zero chance for any army to provide a security service without force control. Therefore, militia regs should at least resemble army regs, and they must include weapons restrictions.
I bring them up for two reasons. One is rhetorical effect. It's funny and absurd to think of a kid using a suitcase nuke as a luchbox. The second is that there is no magical distinction between 'WMDs' and other sorts of really really big big weapons systems that could still inflict unacceptible damage. WMD is a term for international diplomacy, not for telling a grandma who just lost her entire family to a K-Mart 2K-ton Super-K-Bomb that 'at least it wasn't a WMD.'
I believe that your idea of arms regulation remains on the same satire-level as kids running around with A-Team nukeboxes. You may disagree, but you shouldn't.
In the Army, there's less chance of the misuse of arms relative to the militia. Yet the Army still needs comprehensive weapons restrictions in place... even in the warzone. In this context, the militia clearly requires more regulation than 'no nukes.'
If the Pentagon physically filed ideas in order of feasibility, then any army rulebook reading 'no nukes. that's it.' would be stuffed in a cabinet, thrown in a corner, locked in a room hidden down in the structure of an unmanned spacecraft headed for deep space at the fastest speed ever conceived within the physical limits of scientific understanding. That's not to mention the 'militia: no nukes' rulebook. THAT file would be spackled to the nosecone of the spacecraft, just to put that much more distance between that idea and sanity.
Returning to actual discussion, I'll ask you to consider something. Fuel air munitions are non-'WMD', cheap, and horribly destructive - just check out the Oklahoma City bombing. As a result of this terrorist act, Ryder trucks changed their paintscheme and PR in order to distance the company from that image of the horrible yellow truck bomb. Ryder couldn't even rent trucks if it ended up making people think of truck bombs roaming the streets.
But what you are proposing is that fuel air truck bombs indeed should roam the streets. Just not in yellow trucks.
The militia need to have virtually any weapon available, if they are to carry out their unique function. When they are wearing their "almost regular military" hat, they must obviously be put into a standard equipment and discipline for the unit and probably across units. No one has challenged that idea.
What is lacking is your recognition that 99% of militia duty isn't in that particular mode--it's "walking down the street" or "stuck on an airplane" when something happens.
It's dealing with terrorists attacking your neighborhood or your house; it's dealing with it when looters show up after an earthquake, tornado, flood, fire or man-made disaster. These actions require flexibility, not running home, getting into uniform, running to the muster site, lining up like sitting ducks and waiting to be told when to fire.
They are the quick response "team" (maybe of one) that has to have full flexibility.
By the way, the bombs that rocked the Murrah Federal Building would not fall in my class of WMD. See what kind of definition I would use by reading my earlier posts. It would require a larger area of kill AND a higher kill rate.
Bringing terrorist acts into the discussion as somehow supposing to be a militia action or preparedness measure is pathetic, RC. Give up the straw man.
I don't need a straw man when I'm dealing with kldimond. My only regret in writing humorous posts is that it might give you that pinhole of an excuse to ignore the glaringly obvious impracticality of your beliefs.
How in the world is the country going to provide for the common defense when Fuel Air Bombs are available in three convenient sizes on aisle nine at WalMart?
As soon as your brain conjured those thoughts and decreed them 'reasonable,' the sheer waves of obsurdity opened a rift in the space-time continuum. Somewhere, in some parallel universe, a Star Trek red shirt is being sucked into the void of your galactic stupidity.
kldimond: "[The militia] are the quick response "team" (maybe of one) that has to have full flexibility."
What, the army hasn't considered the need for flexibility? Even military novices know that flexibility is a TRADEOFF, not an absolute. Under ANY circumstance. I don't know exactly what regulations will best allow the militia the power, flexibility, and control they need to accomplish their mission... but the Constitution and I agree: SOME compromise is necessry.
'Full' flexibility? Impossible. The militia's mission is to 'provide for the common defense.' No national security advisor would ever, ever, ever say that bargain-basement prices on user-friendly fuel air bombs serve to make the nation a safer place.
That post had a little creative writing, but do you have a point--one relevant to my arguments and not just to me personally (sort-of), via ad hominem?
The reason I ask is that you seem to have run out of points and are now resorting to increasing use of rhetorical pugilism and the straw man: you're snarling, snapping and making stuff up. Disappointing, RC.
Your "take" on the militia is very limited and limiting. You evidently see militia only as an augmentation of the army and/or navy. This is one of its functions, but there are others as well, as I've noted in previous posts.
I don't mind if you end up disagreeing, but what I find disappointing is that you aren't even considering expanding your conception, not even on a hypothetical. Not even to learn how better to argue your point!
I don't perceive that you've even grasped that there is such a thing as a use for the militia beyond the military assist.
So you can't really reject the concept yet, since it isn't even really there for you; you haven't perceived it or its meaning.
All I really ask is that you open your mind up enough to know and understand what I'm suggesting. After that, I can't really fault you if you make a reasoned decision to reject it.
If you respond to this message, please, for the sake of others in the forum, be civilized. I don't care for my own sake--I actually enjoy the abuse to a degree--but not everyone does, and keeping this forum collegial seems like a worthy goal that its fouders would appreciate.