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2nd Amendment and Strict Constructionists - 10/7/2009 10:38:01 PM   
ThatDamnedPanda


Posts: 6060
Joined: 1/26/2009
Status: offline 		Something that's been knocking around in the back of my head for a while, and I thought I'd toss it out here and see what people had to say about it.

First off, let me say that I'm a lifelong gunowner, and an absolutely adamant supporter of the 2nd Amendment. One of the "from my cold, dead hands" types, and not the least bit embarrassed to say so. But there's something about the wording of that amendment that's always troubled me somewhat, and I thought I'd see what others thought about it - both my fellow gunowners and the "ban 'em all" folks, but particularly my fellow gun-rights supporters.

What I'm referring to is the part that says "shall not be infringed." To me - if you're applying a strict constructionist interpretation - that could logically mean that it is unconstitutional to regulate the ownership or possession of any firearm, in any way, anywhere in the United States. If you accept that any sort of state or local regulation on the ownership or possession of a gun is technically an "infringement" of the right to keep or bear a firearm, is it not then unconstitutional to enforce any such laws? I'd like to hear people's arguments that any law which could prevent the ownership or unrestricted possession of a firearm is not an infringement of the right to keep and bear. Or, alternatively, that it is indeed an infringement in the strictest technical sense, but somehow not a violation of the Constitution.

And for those fellow gun-owners who do agree that such a law constitutes an infringement of the right to keep and bear, do you oppose any state or local law that regulates firearms in any way whatsoever? And if you do believe in some degree of gun control legislation, how do you then reconcile that with your acknowledgment such laws violate the 2nd Amendment?

I know this is probably going to stir up a shit storm, and I'm genuinely sorry about that. But before it goes completely nuclear, I'd be interested in hearing reasoned opinions on the matter. Because to me, this is a pretty tricky issue, and I'd like to hear more about how others have resolved it in their minds.


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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 12:28:00 AM   
DomKen


Posts: 19457
Joined: 7/4/2004
From: Chicago, IL
Status: offline 		I'll get started by presenting the two versions of the second amendment:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
is the version approved by congress and recorded in the National Archives.

However this version
"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed"
Is the version most, perhaps all the states ratified.

In comparing th etwo versions it is completely possible to get two very different amendments out of this single sentence. If the amendment meant "Militia" as a proper noun then they're talking about what is today the National Guard and the debate about personal rights to own firearms is moot. If the amendment meant "militia" as a common noun then it was in the more general term of all able bodied adult men which strongly implies a ban on laws controling ownership of personal firearms.

Now we're stuck falling back on 2 centuries of SCOTUS rulings on the matter. All but one side with the amendment being about organized state militias. Unfortunately the one outlier is the ruling in the D.C. case but that ruling is contrary to common sense as it declares that the second amendment is a personal right equivalent to those in the first amendment but goes on to say that a civil court proceeding can permanently remove a person's rights. Now I'm sure no one thinks freedom of spech or assembly should be contingent on a civil court judges decision so the case must eventually be revisited.

IMO ultimately SCOTUS will return to the traditional reading of the second amendment and find that gun ownership is not a personal right. I do not favor a total ban but would like to see a near or complete ban on handguns. semiautomatic rifles and shotguns are fine with me.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 12:28:05 AM   
HatesParisHilton


Posts: 3513
Joined: 12/27/2006
Status: offline 		is there anyway, on any level, that standing against this law would allow people like YOU to have a gun and deny nutbags like the "wife" of Phil Hartman to have a gun?

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 1:00:15 AM   
Ialdabaoth


Posts: 1073
Joined: 5/4/2008
From: Tempe, AZ
Status: offline 		Personally, I'm all for gun ownership. I think there should be some sort of competence test, just like there's a competence test for automobiles.

No matter how you parse that sentence, as long as it's in English, they're saying that people have the right to "keep and bear" arms. This means two things - the right to own (keep) firearms, and the right to use (bear) firearms.

Of course, there's no reason you can't slap a competency test on it, just like a driver's license requirement for vehicles doesn't impede our common-law right to travel.

Barring said competency tests, I think citizens should be allowed to own any weapon, up to and including automatic assault rifles, grenade launchers, and surface-to-air missile silos.

However, I think that with said right should come a responsibility - you have to demonstrate competence, and readiness, to defend yourself and others from all threats, foreign and domestic. And if you act in a way that demonstrates that you are the threat, expect to have your weapon rights permanently revoked.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 1:09:05 AM   
HatesParisHilton


Posts: 3513
Joined: 12/27/2006
Status: offline 		what Iald said, with the addition of

here in Oz if you fuck up enough, if you act behind the wheel in a nutbag/dangerous manner one too many times?

you can lose your liscense FOREVER.

we have triple demerit point holidays here.

I think we should have quintuple.

Now, ala what Iald said, if it was as hard to have ownership of a gun ala SKILL, proven skill, as the ultimate lethal weapon  (as inArnie's Hummer), I'm gung ho as Charlton Heston.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 1:28:10 AM   
Arpig


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From: Increasingly further from reality
Status: offline 		You know, every time I read the amendment, it seems to say something different, thus I cannot decide if it guarantees everybody the right to have guns, or if it guarantees the States the right to maintain an armed militia. However, given the context of the times, when the "militia" wasn't an organized equipped force like the National Guard and also that damned near everybody had a gun or two (for hunting and shooting redskins, etc.)m I tend to fall on the side of an individual right to guns. If that is the case, then you are right, any law which "infringes" on that right would be unconstitutional, thus it would appear that any gun regulation that would prevent a citizen from owning a gun would be unconstitutional. Now as to whether such a state of affairs is sustainable in today's world of automatic weapons, etc., well that's a whole other kettle of fish. Personally I think the 2nd Amendment should be repealed or modified to allow for some control


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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 1:41:36 AM   
Kirata


Posts: 15477
Joined: 2/11/2006
From: USA
Status: offline
quote:

ORIGINAL: DomKen

I'll get started by presenting the two versions of the second amendment....

The capitalization of "militia" in the Second Amendment does not make it a proper noun, any more than the capitalization of "state" or "arms" in the same sentence makes them proper nouns. Only in a specific reference or title, as for example the Tennessee Militia, New York State, or Sergeant at Arms, are they proper nouns. All you are seeing here is the remnant of a quaint archaic convention of capitalizing nouns which was common during the 18th Century. Actually, it was fading out of favor by the time the Bill of Rights was drafted, but the practice persisted somewhat spottily.

K.






< Message edited by Kirata -- 10/8/2009 2:07:01 AM >

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 2:01:36 AM   
HatesParisHilton


Posts: 3513
Joined: 12/27/2006
Status: offline 		okay, once again,

is there a way for Panda and Kirata to have guns WITHOUT giving the same ease of access to the type of loon that murdered  Hartman?

yes or no?

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 2:28:16 AM   
Ialdabaoth


Posts: 1073
Joined: 5/4/2008
From: Tempe, AZ
Status: offline
quote:

ORIGINAL: HatesParisHilton

okay, once again,

is there a way for Panda and Kirata to have guns WITHOUT giving the same ease of access to the type of loon that murdered  Hartman?

yes or no?


My response is "No, but life always involves risk."

There's plenty of things you can't predict the outcome of, but you do them anyways because the probable outcome is preferrable.

Look at it this way: Three hundred million Americans with guns probably means a few hundred Americans shot by crazies every year. It probably also means a few hundred thousand less Americans shot by their despotic government every century. If (likely American gun-murders per year x 100) > (likely American fascist-mass-killings per century), you go for it.

It's simple Bayesian decision-making.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 2:40:51 AM   
Lorr47


Posts: 862
Joined: 3/13/2007
Status: offline
quote:

ORIGINAL: DomKen

I'll get started by presenting the two versions of the second amendment:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
is the version approved by congress and recorded in the National Archives.

However this version
"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed"
Is the version most, perhaps all the states ratified.

In comparing th etwo versions it is completely possible to get two very different amendments out of this single sentence. If the amendment meant "Militia" as a proper noun then they're talking about what is today the National Guard and the debate about personal rights to own firearms is moot. If the amendment meant "militia" as a common noun then it was in the more general term of all able bodied adult men which strongly implies a ban on laws controling ownership of personal firearms.

Now we're stuck falling back on 2 centuries of SCOTUS rulings on the matter. All but one side with the amendment being about organized state militias. Unfortunately the one outlier is the ruling in the D.C. case but that ruling is contrary to common sense as it declares that the second amendment is a personal right equivalent to those in the first amendment but goes on to say that a civil court proceeding can permanently remove a person's rights. Now I'm sure no one thinks freedom of spech or assembly should be contingent on a civil court judges decision so the case must eventually be revisited.

IMO ultimately SCOTUS will return to the traditional reading of the second amendment and find that gun ownership is not a personal right. I do not favor a total ban but would like to see a near or complete ban on handguns. semiautomatic rifles and shotguns are fine with me.


Until Professor Tribe revised his constitutional work I did not think the 2nd Amendment could ever be twisted enough to accommodate those favoring gun ownership. I own firearms so the new found interpretation fits my personal desires.  However, the conservative gun owners did exactly what they continually allege liberals on the Court do; namely, crass judicial activism.  I view the new reading as hypocrisy but a hypocrisy that fits my lifestyle.

As to the Kirata vs Hartman question, I believe the answer is no.  Just another form of deregulation that has consequences.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 2:47:51 AM   
Kirata


Posts: 15477
Joined: 2/11/2006
From: USA
Status: offline
quote:

ORIGINAL: ThatDamnedPanda

I thought I'd toss it out here and see what people had to say about it.

I have always naively believed that the Constitution was the supreme law of the land. But apparently the Bill of Rights did not originally apply to the states.

Most of those rights have now been "incorporated," but the right to keep and bear arms has not been as yet. Apparently the matter will turn on whether the Supreme Court finds the right to be "fundamental," a term which it appears may be somewhat loosely defined as deeply rooted in American history and traditions.

My personal view is that the right should be incorporated, and that the keeping of arms on private property should not be restricted. But I would not object to, and think there is reasonable argument for, regulating the bearing of arms in the public sphere in the same way that we license the operation of vehicles and aircraft.

K.






< Message edited by Kirata -- 10/8/2009 3:24:10 AM >

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 2:59:51 AM   
daintydimples


Posts: 967
Joined: 7/6/2009
Status: offline 		Ideally, this:

Personally I think the 2nd Amendment should be repealed or modified to allow for some control (Arpig)

I doubt that's going to happen anytime soon. Although I believe in the right to bear arms, this statement: I think citizens should be allowed to own any weapon, up to and including automatic assault rifles, grenade launchers, and surface-to-air missile silos. (Ialdabaoth) is a great example of why you are never going to be able to effectively police gun control. In my opinion, anyone who thinks he needs his own personal grenade launcher has by that very desire ruled himself incompetent to own one, regardless of his skill set. It implies a disturbing level of paranoia -- and I think someone that paranoid is going to acquire certain kinds of weapons, whether they are legal or not.


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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 3:18:02 AM   
monday


Posts: 3
Joined: 7/23/2007
Status: offline 		And this discussion shows why the bill of rights was the biggest mistake in early US history. If you do a little research you will see that most of the resistance against the bill of rights came from people that believed it was completely unnecessary - after all a right that was not explicitly assigned to the government stayed with the people.

In other words, the whole discussion here is not what was intended by our founding fathers. Nowhere in the constitution does it say that the government has the right to control arms. Therefore they simply don't. No need to interpret capitalization and punctuation.
Lets just throw out 95% of all laws that currently exist and all live an easier life. Heck, we might actually end up being competitive on a global scale without the morons in washington meddling in things they don't understand and have no right manipulating.

Peter.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 3:56:30 AM   
MrRodgers


Posts: 10542
Joined: 7/30/2005
Status: offline
quote:

ORIGINAL: monday

And this discussion shows why the bill of rights was the biggest mistake in early US history. If you do a little research you will see that most of the resistance against the bill of rights came from people that believed it was completely unnecessary - after all a right that was not explicitly assigned to the government stayed with the people.

In other words, the whole discussion here is not what was intended by our founding fathers. Nowhere in the constitution does it say that the government has the right to control arms. Therefore they simply don't. No need to interpret capitalization and punctuation.
Lets just throw out 95% of all laws that currently exist and all live an easier life. Heck, we might actually end up being competitive on a global scale without the morons in washington meddling in things they don't understand and have no right manipulating.

Peter.

The constitution and the bill of rights is not about the creation of rights, it is about what rights the govt. specifically cannot assume or deny.

IF and I mean IF constitutionally no level of govt. can regulate (infringe upon) guns then even felons could still own bear arms. The insane, the violent could all own and carry guns.

Of course during Katrina it didn't seem to matter as law enforcement went around and even in areas not much affected by the flooding or anywhere near any looting...had the their guns confiscated.

< Message edited by MrRodgers -- 10/8/2009 3:57:23 AM >

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 4:59:36 AM   
OrionTheWolf


Posts: 7803
Joined: 10/11/2006
Status: offline 		Hiya Panda,

I had decided to stay out of gun control debates, but just for you I have a brief comment.

If we look at any of the rights given to us via the Constitution, they must all be balanced with public welfare. This is why speech is restricted that would cause an unnecessary panic, or why the press does not have the right to publish something that would weaken our national security. So applying those same safeguards, it is not unreasonable for laws that regulate those that wish to be part of a militia (gun owners), as long as they are still able to own guns (thus not infringing upon that right).

I am also one of those "from my cold dead hand" kind of guys, but I support background checks, keeping guns out of the hands of violent felons and the mentally unstable, as well as required safety course with certification. With these in place I also support the right to carry a gun where ever I wish.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 5:19:53 AM   
Musicmystery


Posts: 30259
Joined: 3/14/2005
Status: offline 		Panda,

I think it's sad that a city (potentially) can be forced by people outside the state to accept handguns. What happened to states rights? Or local control of quality of life?

If California or New York has a stricter air quality standard or fuel emissions standard or workplace safety regulation than the federal requirement--will those regulations be in danger? Is it illegal to be safer than the rest of the country?

The amendment says "Congress shall pass no law..." and Congress hasn't. It's a local issue and the NRA has no business in it.

Let's hope this ridiculously politicized Supreme "Court" can see the mess and danger overturning this would create.

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 5:21:53 AM   
Musicmystery


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quote:

Nowhere in the constitution does it say that the government has the right to control arms. Therefore they simply don't.


Perhaps you've heard of the Bureau of Alcohol, Tobacco and Firearms?

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 5:40:23 AM   
hizgeorgiapeach


Posts: 1672
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quote:

ORIGINAL: OrionTheWolf
I am also one of those "from my cold dead hand" kind of guys, but I support background checks, keeping guns out of the hands of violent felons and the mentally unstable, as well as required safety course with certification. With these in place I also support the right to carry a gun where ever I wish.


(Well shit - if it requires verifable mental stability, I guess I should get rid of my personal arsenal.... which, frankly, isn't gonna happen unless they bring a TANK to confiscate 'em, and manage to blow me straight to a hell I don't even believe in prior to making the attempt.... )

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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 6:20:17 AM   
DomImus


Posts: 2004
Joined: 3/17/2009
Status: offline
quote:

ORIGINAL: HatesParisHilton

okay, once again,

is there a way for Panda and Kirata to have guns WITHOUT giving the same ease of access to the type of loon that murdered  Hartman?

yes or no?


No. Now, my question: Do you honestly feel that a firearms ban would have unequivocally kept Brynn Hartman from finding a way to procure a gun to kill Phil and herself with? Firearms are a lot like abortions in that banning them won't make them go away. It only drives them underground and the ban only affects people willing to abide by it. I own a firearm in part to protect myself from the very people who would laugh at a firearms ban.


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RE: 2nd Amendment and Strict Constructionists - 10/8/2009 6:56:44 AM   
UncleNasty


Posts: 1108
Joined: 3/20/2004
Status: offline 		To my knowledge the Bureau of Alcohol Tobacco and Firearms is not mentioned in the Constitution. Did I miss something?

I have issues with reinterpreting the Constitution. To me it seems quite subversive to simply reinterpret the document to mean "what we want it to mean now." There is a process for changing, or amending, the document, and that is included in the document itself.

Many of the "extra-constitutional" powers and agencies we have now come from the commerce clause (Article 1, Section 8, Clause 3), and/or the necessary and proper clause (Article 1, Section 8, Clause 18). The latter of those two has been given a number of less flattering titles - elastic clause, sweeping clause, basket clause. It is my uninformed suspicion the ATF has gotten its "charter" and power through one, or a combination, of these clasues and that such has revolved primarily around the issue of revenue. Go figure, the gov't reinterpreting the constitution in order to raise funds for itself, disempower the citizens, and grant itself broader powers not enumerated in the constitution.

Uncle Nasty


Uncle Nasty

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