What Does the Second Amendment Really Say?

[BStrong]

We used "Arming America" in the graduate historiography class at Purdue. If you've had that course you know what kind of book is chosen. If not, let's just say it's a course on how NOT to do history.

And I was talking about individuals with ****-loads of guns, not the total number in the colonies.

My mistake then, I misunderstood.

Just an aside about Bellesiles. When the book came out and I (and others as it turned out) read that he claimed he examined California probate records of the pre '06 era, I about threw the book out the window. It's pretty well known (at least amongst older Californians) that almost all the old records (of all types) went up in the 'quake and fire, and the state actually had to come up with a process way back then allowing for the re-creation of destroyed real estate titles, probate, birth and death records, you name it, it all went up.

His story about who, what and where just relating to that particular lie was painful to read, even though the guy was working an angle and I very much disagreed with what he was doing watching a guy dig a hole like he did for himself was a bit painful.

When everybody and his brother praised the guy for his work, I knew things were going to get very ugly when the truth started getting out, and I wasn't wrong, He lost everything.

He might have deserved it for what he did, but it wasn't fun to watch.

 

[BStrong]

My question was specific to the asinine assertion that there was such a thing as natural human rights. Since we both seem to agree such things, for all intents and purposes, don't exist (how can something be a natural human right if it can be yanked away by a simple vote), gun folks can put away the idea gun ownership is a natural human right.

As for actual rights, those in the real world, as defined by society, I'm well aware of the process and can appreciate the difficulty in making changes. In this case it's a shame that so much blood must be shed to allow so many idiots to own guns. Until men can evolve to prevent our ego, low self esteem and testosterone from dominating our thinking, blood will continue to spill.

Watch out, you'll dislocate that shoulder if you don't stop patting yourself on the back so hard.

 

[theprestige]

My question was specific to the asinine assertion that there was such a thing as natural human rights. Since we both seem to agree such things, for all intents and purposes, don't exist (how can something be a natural human right if it can be yanked away by a simple vote), gun folks can put away the idea gun ownership is a natural human right.

We don't agree on this.

That's okay, though. It's not central to my interpretation of the Second Amendment, which is based on the fact that my society does recognize the right to bear arms.

I hope this helps. Have a nice day!

 

[theprestige]

I don't think it comes down to nullifying the right, I think it comes down to keeping the right within the bounds of the justification.

I think you may have misread my argument. I never referred to "nullifying the right".

I referred to nullifying all justifications not explicitly presented in the Amendment.

My basic position is that, as a right, it transcends the bounds of any explicit justification. Therefore, you cannot nullify other justifications by omitting them from explicit mention. You can only nullify other justifications by explicitly doing so.

However, I think that the only reasonable conclusion to draw from your proposal, "keeping the right within the bounds of the justification", effectively nullifies the right.

Thus, your interpretation is profoundly, irreconcilably at odds with my own. Since our difference of opinion seems to be based on a difference of personal axioms, there's probably not much hope of us reaching agreement on this question.

The second amendment protects your right to keep a gun as a part of your militia duties or consistent with your militia duties or at your militia headquarters or some such like that.

Other gun ownership would not be protected by the second amendment. I don't imagine it would be outlawed in most places, but it may be much more regulated.

I do not agree that rights work that way in American jurisprudence. Certainly the right to free speech is not restricted to only the specific methods laid out in the Constitution. Why should the right to bear arms be so restricted?

But alas, recent court cases have taken us on a different path. But I will not that there is nothing in recent case law that would outlaw a licensing system for gun owners, or even more particularly handgun owners. The problem is that gun control advocates have gone for showy irrational controls that appeal to their constituents without achieving any real change. But this is veering off topic again. Mea culpa.

Off topic or not, I agree that both in the Constitution, and in the case law, there is plenty of room to regulate gun ownership. I even believe that this is true within my concept of arms as a human right.

My interpretation of the Second Amendment is simply these two points:

1. That all legitimate infringement must be considered in the context of arms as a human right.

2. That the right can be--and therefore must be--considered independently of the militia clause.

Note that I would hold (1) to be true even if I did not agree that arms are a human right. It suffices that the Constitution recognizes it as such, and therefore it should be treated as such when interpreting or applying the Constitution.

 

[Dr. Keith]

I think you may have misread my argument. I never referred to "nullifying the right".

I referred to nullifying all justifications not explicitly presented in the Amendment.

Yeah, I guess I just took that to mean that if you have nullified all justifications then the right is gone, whether nullified or not. I probably snipped too much from your post.

My basic position is that, as a right, it transcends the bounds of any explicit justification. Therefore, you cannot nullify other justifications by omitting them from explicit mention. You can only nullify other justifications by explicitly doing so.

However, I think that the only reasonable conclusion to draw from your proposal, "keeping the right within the bounds of the justification", effectively nullifies the right.

It does if there is no longer a militia. That is my point. The amendment, taken as a whole is narrower than the second part alone.

But then I don't think that we would be a gunless society without the amendment. My own state being a prime example. But if some states wanted to further restrict private gun ownership it would be up to the voters of their state.

Thus, your interpretation is profoundly, irreconcilably at odds with my own. Since our difference of opinion seems to be based on a difference of personal axioms, there's probably not much hope of us reaching agreement on this question.

I agree, but I like discussing it with someone who can clearly express where we disagree, so I appreciate your participation.

I do not agree that rights work that way in American jurisprudence. Certainly the right to free speech is not restricted to only the specific methods laid out in the Constitution. Why should the right to bear arms be so restricted?

And that is my very point: the first amendment does not lay out methods or justifications, it simply lays out a right. In contrast, the second lays out a justification which by its very existence in contrast to the first must mean something.

But that is not the direction Constitutional jurisprudence has taken. So its a bit moot at this point, except in threads like this.

Off topic or not, I agree that both in the Constitution, and in the case law, there is plenty of room to regulate gun ownership. I even believe that this is true within my concept of arms as a human right.

My interpretation of the Second Amendment is simply these two points:

1. That all legitimate infringement must be considered in the context of arms as a human right.

2. That the right can be--and therefore must be--considered independently of the militia clause.

Note that I would hold (1) to be true even if I did not agree that arms are a human right. It suffices that the Constitution recognizes it as such, and therefore it should be treated as such when interpreting or applying the Constitution.

I think that is fairly consistent with the case law.

At one point a while back wildcat laid out a bunch of the recent case law and I took some time to read through it and it was pretty clear that if the regulation is fairly administered and is not discriminatory then just about any regulation that did not remove the right to bear arms from law abiding citizens would pass constitutional muster.

Licensing of gun owners was on my mind at the time and it was clear that the courts would have no issue with this so long as the "may" issue status was not abused to mean "won't" issue. Reasonable background checks and nominal fees, not "you have to know someone or pay a very high fee."

I think gun registration could pass muster, too. Especially handgun registration.

But none of these will pass if people keep focusing on stupid stuff like the AWB or clip sizes.

 

[theprestige]

It does if there is no longer a militia. That is my point. The amendment, taken as a whole is narrower than the second part alone.

Agreed. It's a question of whether we have to take it as a whole.

But then I don't think that we would be a gunless society without the amendment. My own state being a prime example. But if some states wanted to further restrict private gun ownership it would be up to the voters of their state.

Agreed, again. This is pretty fun.

I agree, but I like discussing it with someone who can clearly express where we disagree, so I appreciate your participation.

And agreed again. Thanks for keeping it interesting.

And that is my very point: the first amendment does not lay out methods or justifications, it simply lays out a right. In contrast, the second lays out a justification which by its very existence in contrast to the first must mean something.

I think it does mean something; just not enough to override the recognition of arms as a right, and therefore meriting the same freedom from infringements as the others.

At one point a while back wildcat laid out a bunch of the recent case law and I took some time to read through it and it was pretty clear that if the regulation is fairly administered and is not discriminatory then just about any regulation that did not remove the right to bear arms from law abiding citizens would pass constitutional muster.

Licensing of gun owners was on my mind at the time and it was clear that the courts would have no issue with this so long as the "may" issue status was not abused to mean "won't" issue. Reasonable background checks and nominal fees, not "you have to know someone or pay a very high fee."

I think gun registration could pass muster, too. Especially handgun registration.

But none of these will pass if people keep focusing on stupid stuff like the AWB or clip sizes.

And agreed on all of that as well.

Wait... "clip"? Now my jimmies are rustled.

 

[Dr. Keith]

Wait... "clip"? Now my jimmies are rustled.

So much good will wasted on a single word.

For the life of me that is what we have always called them, but I may have used a gun with a magazine once in the last decade. Bolt action rifles and various shotguns are my guns of choice now.

If I can back pedal a bit: that's what the loons say when they are trying to limit their size, so I was just parroting their usage??

Have a good weekend.

 

[Dr. Keith]

Agreed. It's a question of whether we have to take it as a whole.

Now you want to ignore parts of the constitution?

Agreed, again. This is pretty fun.


And agreed again. Thanks for keeping it interesting.

I like to end the week on a positive note.

I think it does mean something; just not enough to override the recognition of arms as a right, and therefore meriting the same freedom from infringements as the others.

Maybe when you have time we can dig into what it means a bit more. You have the jurisprudence to back you up, but working from first principles how does the difference in wording between this amendment and the rest strike you?

And agreed on all of that as well.

It took me by surprise. I thought the recent cases made more regulation very difficult. Instead I found rather a lot of ground that could be covered if there were the political will to do so.

The scream of "anti-constitutional" or "traitor" would not be at all dampened by the fact that it would all be very constitutional.

 

[Gawdzilla Sama]

My mistake then, I misunderstood.

No prob. I could have worded that better.

Just an aside about Bellesiles. When the book came out and I (and others as it turned out) read that he claimed he examined California probate records of the pre '06 era, I about threw the book out the window. It's pretty well known (at least amongst older Californians) that almost all the old records (of all types) went up in the 'quake and fire, and the state actually had to come up with a process way back then allowing for the re-creation of destroyed real estate titles, probate, birth and death records, you name it, it all went up.

His story about who, what and where just relating to that particular lie was painful to read, even though the guy was working an angle and I very much disagreed with what he was doing watching a guy dig a hole like he did for himself was a bit painful.

When everybody and his brother praised the guy for his work, I knew things were going to get very ugly when the truth started getting out, and I wasn't wrong, He lost everything.

He might have deserved it for what he did, but it wasn't fun to watch.

His story about three guys shooting 5,000 squirrels in three days WITH MUZZLELOADERS got me to chuckling.

 

[WildCat]

What I don't get is how any legislation at all seems to raise the ire of some advocates. It seems obvious to me that owning a personal nuclear weapon would not be protected, for at least two reasons: It's well beyond what anyone could have envisioned in the 18th century,

So is radio and television and satellite and internet broadcast, do you think freedom of speech doesn't apply to those areas?

and it creates an unacceptable risk to others.

Much better, plus no one can "bear" nuclear arms.

 

[WildCat]

But you were saying that rights are not dependant on enumeration in the consitution - clearly thence, the constitution is irrelevant in determining of something is a right. So what is the rationale for deciding that something is, or is not, a right?

Like I said, maybe it is a right and the only thing keeping it from being recognized as such is no one has made the right case for it. Can you make a case?

 

[tyr_13]

Much better, plus no one can "bear" nuclear arms.

Says you.

 

[WildCat]

Actually it is far less true now than it was then. In the past 50 years numerous governments have been overthrown by unarmed masses or political pressure and none have been overthrown by armed citizens independent from the military. It is silly to think a thousand Glocks are more effective at changing the government of the US than a single vote.

I can name several successful armed revolutions in the last 50 years. The Taliban's overthrow of the Afghan government (one of several in that country), the Kosovo revolution, Libya, Tunisia, just for a few examples.

 

[WildCat]

Except that the highlighted bit isn't even hinted at in the actual wording. The second clause is clearly conditional upon the first. If not, why mention it? Or make it clear that there are various reasons, which would require totally different wording.

The 2A is a pig's ear of language.

Then why say "the people" instead of "the militia"? "The militia" is a subset of "the people".

 

[WildCat]

If you can't avoid non sequiters maybe you aren't the debater you think you are.

Have you googled the phrase "core Constitutional right" and seen how it's been used in court opinions?

Perhaps you should do so.

 

[WildCat]

The nutbar collection of folks who call themselves militias these days are what the US needs to be protected from, not by.

Excellent post, and this is exactly why "the people" also have the right to keep and bear arms, and not just the militias (public or private).

 

[Old man]

Much better, plus no one can "bear" nuclear arms.

Says you.

Yeah, I know a guy who was in the Army during the Cold War. He was part of a squad who's task was to deliver man-portable nukes to demolition sites (highway and railroad bridges, dams, etc).
http://en.wikipedia.org/wiki/Special_Atomic_Demolition_Munition

 

[TubbaBlubba]

Like I said, maybe it is a right and the only thing keeping it from being recognized as such is no one has made the right case for it. Can you make a case?

I do not believe in that kind of rights. But you do. So again: What is it that decides whether something is a right or not? What is the necessary justification? Is it utilitarian? Related to the natural state of man? Or is it just something courts assert because they like it or consider it important for the state of humanity.

In other words: What kind of justification would convince you that drinking is a right? I suspect "none", because it is not important to your politics.

 

[WildCat]

I do not believe in that kind of rights.

It doesn't matter what you believe, that is how it is implemented in the USA.

You can have your own opinions, but you don't get your own facts.

 

[Gawdzilla Sama]

Excellent post, and this is exactly why "the people" also have the right to keep and bear arms, and not just the militias (public or private).

Excellent recapitulation of a point I didn't make, nor wanted to.