2nd ammendment skepticism

[Smiledriver]

Also what Aerik said.

 

[rwguinn]

I've never seen anyone (eta: excluding random internet wackos, who will say anything) actually hold that position. Only pro-gun people claiming to be astounded by those egnurnt libruls. Could be wrong of course, but it smells of well worn straw.

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.


It's not that "the people" doesn't refer to the citizens and residents of the country, it's that the amendment starts off by saying that militias are important, so people should have the right to keep and bear arms. Since militias are no longer important, the logic of the sentence suggests the people should no longer have the right to keep and bear arms.

The construction "X is important, therefore Y is a right" creates the right of Y as contingent on the importance of X.

As I said.
Convoluted logic..

 

[Yjacket]

I've never seen anyone (eta: excluding random internet wackos, who will say anything) actually hold that position. Only pro-gun people claiming to be astounded by those egnurnt libruls. Could be wrong of course, but it smells of well worn straw.

I have heard spokespersons for the Brady Campaign make that statement and I have heard politicians use phrases that mean the same. I believe there was an effort made to have people believe that in the case of the Second Amendment the word the people meant the state, collective.

It's not that "the people" doesn't refer to the citizens and residents of the country, it's that the amendment starts off by saying that militias are important, so people should have the right to keep and bear arms. Since militias are no longer important, the logic of the sentence suggests the people should no longer have the right to keep and bear arms.

Doesn't quite work that way. Just because the states have not kept up with having a militia does not mean the right of the people is in any way affected, nor should it be. Also I tend to think of the first 13 words of the amendment as a preamble setting a reason for the following 14 words and as such could be omited without changing the meaning of the sentence. I think that if you will check out english grammer you will find that the sentence is a complex sentence, not a compound or conjoined sentence.

 

[JamesDillon]

No, have you not heard of the Cuban revolutiuonaries defeating the Batista gov't. The Viet Kong rebels, the Mujadeen fighters and so on and so on. Guerilla armies have no need for more than semi-auto rifles and the support of the people.

I assumed we were talking about the United States, since the Second Amendment, so far as I know, does not apply in foreign countries. And there is simply no way that a guerilla band could defeat the U.S. military on U.S. soil.

I've come to learn that he 2nd amendment necessarily applies to individuals, as the Constitution and it's amendments, including the bill of rights, is not in the business of enumerating the rights of institutions. Corporate personhood is a sham, and so is any idea that the Constitution gives groups of people rights rather than individuals.

What about the Tenth Amendment?
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Clearly reserving some powers to the States, as corporate entities and explicitly distinguished from the people.

 

[Yjacket]

But if that's the argument, then isn't the Second Amendment obsolete? It's not much of a bulwark when tyranny has modern military technology and you've got a few hunting rifles. It seems like you have to either argue for a constitutional right to maintain a personal nuclear arsenal, or acknowledge that if this was the principal purpose of the Second Amendment, it has long since outlived its usefulness.

Small arms and explosives did a pretty good job in Nam, seem to be doing a pretty good job in two other nations right now. Modern military technology seems to have limited application in the latest wars that the US has been involved in.

And arguing that weapons of mass destruction are included in the term "arms" as used in the Second Amendment - I think not. You see if you dig hard into the diary and letters of the time and the Federalist and Anti-Federalist paper you will find that the State is to furnish the field artilley and the individuals the small arms. I would like to think that the Second Amendment does not include weapons of mass destruction. Or even crew served weapons on the basis of "to keep and bear" which means carry.

 

[Yjacket]

Hello,

I have noticed that an ever present fixture in the gun control debate in the U.S. is an argument over the intention of the 2nd ammendment to the American constitution.

The ammendment seems to be viewed as either...

1.) That well regulated miltias are crucial to the security of a free state therefore the people must be free to keep and bear arms so as to be able to raise up such militias in short order to aid in the common defence.

2.)...or well regulated militas are crucial to the security of a free state therefore the militias (in contrast to the people) should be free to keep and bear arms to aid in the common defence.

The second of these interpretations seems to me to be dead wrong and flys in the face of everything I have ever read about the American founding and the much older idea of an armed citizenry.

My question is this: How old is this contraversy? How far back can we go and see a lively debate over the intention of the 2nd ammendment? Is it actually a argument meant to get at the founder's intention or a political ploy to forward one political agenda or another?

Thanks in advance.

It seems to me that the debate is really not as long going as many would think. Up until about the time of the murder of two of the Kennedy family and Dr. King there was very little effort to remove access to firearms from the average citizen. Even as far back as 1934 Congress moved very carefully in the area of firearm controls. The regulations of the 1934NFA are in fact set up as a tax collecting situation and at the time were not specifically intended as regulatory control.

 

[JamesDillon]

Small arms and explosives did a pretty good job in Nam, seem to be doing a pretty good job in two other nations right now. Modern military technology seems to have limited application in the latest wars that the US has been involved in.

Again, I thought we were talking about this in the context of a prospective domestic insurrection against a tyrannical United States government, which is the only context in which the Second Amendment could possibly apply. And I don't think that Vietnam or Iraq, in which our troops were invading hostile terrain in a foreign country, are at all analogous. Our military was also holding back to some degree in those situations; we weren't going to nuke Baghdad, after all. In the hypothetical situation in which an autocratic U.S. government needed to put down a domestic uprising, I just don't think that the rights guaranteed even under a broad reading of the Second Amendment could slow it down, much less stop it.

 

[Alex Libman]

How do you come to the conclusion that gun ownership is a natural right?

I buy a gun (or build one in my basement) => I have a gun.

No one else need be involved.

What's unnatural about that?

 

[Yjacket]

Again, I thought we were talking about this in the context of a prospective domestic insurrection against a tyrannical United States government, which is the only context in which the Second Amendment could possibly apply. And I don't think that Vietnam or Iraq, in which our troops were invading hostile terrain in a foreign country, are at all analogous. Our military was also holding back to some degree in those situations; we weren't going to nuke Baghdad, after all. In the hypothetical situation in which an autocratic U.S. government needed to put down a domestic uprising, I just don't think that the rights guaranteed even under a broad reading of the Second Amendment could slow it down, much less stop it.

I for one would hope that if such an unfortunate situation as an armed rebellion were to occur in the US that things would not have degenerated to such a point that the government would consider the use of nuclear weapons. Or to put it another way, as you say we aren't going to nuke Baghdad so I would hope the same could be said for any American city as well. So now you are in fact down to situations involving guerrilla warfare in populated areas and the same problems would exist in any American city that exist in any city in Iraq. Whether you like it or not the analogy is there.

I do believe that you have forgotten Posse Comitatus as well. You are assuming that the complete military would willingly violate it. I would like to think that you are incorrect.

 

[quixotecoyote]

As I said.
Convoluted logic..

Oh look a magical pixie just set up shop in your lower intestines and is passing out hamburgers to passing jackalopes.

Equally supported.

 

[quixotecoyote]

Also I tend to think of the first 13 words of the amendment as a preamble setting a reason for the following 14 words and as such could be omited without changing the meaning of the sentence.

I agree the first part sets the reason for the following part. That reason no longer applies. So now you have an unjustified bit hanging out that the end that you want to support even though the reason for it is gone.

 

[JamesDillon]

I for one would hope that if such an unfortunate situation as an armed rebellion were to occur in the US that things would not have degenerated to such a point that the government would consider the use of nuclear weapons. Or to put it another way, as you say we aren't going to nuke Baghdad so I would hope the same could be said for any American city as well. So now you are in fact down to situations involving guerrilla warfare in populated areas and the same problems would exist in any American city that exist in any city in Iraq. Whether you like it or not the analogy is there.

I do believe that you have forgotten Posse Comitatus as well. You are assuming that the complete military would willingly violate it. I would like to think that you are incorrect.

I suppose we can craft our hypothetical doomsday situations however we like, but it seems to me like the original argument regarding the purpose of the Second Amendment calls for a worst case scenario analysis, particularly if we're assuming that armed rebellion would be justified. I would hope that a substantial number of American citizens wouldn't be inclined to take up arms against the federal government unless all democratic efforts had failed (or, you know, unless they were worried about it taking their slaves away), in which case almost by definition the government we're talking about would not be a particularly nice or merciful one. So it seems reasonable to me that the situation we're postulating almost demands presuming that the hypothetical totalitarian U.S. government would use all means at its disposal to put down an armed rebellion.

 

[Yjacket]

I agree the first part sets the reason for the following part. That reason no longer applies. So now you have an unjustified bit hanging out that the end that you want to support even though the reason for it is gone.

The first 13 words define a reason but not necessarily the only reason. However even if we were to assume you are correct and the reason for the Second Amendment no long is valid -- so what? That does not negate the following 14 words.

If you want to remove the Second Amendment, specifically the last 14 words, then invoke Article V of the Constitution. While you are at it has there ever been a need for Amentment III since King George and crew were routed in the 1770's? Why not eliminate it as well since it seems to be obsolete?

 

[Yjacket]

I suppose we can craft our hypothetical doomsday situations however we like, but it seems to me like the original argument regarding the purpose of the Second Amendment calls for a worst case scenario analysis, particularly if we're assuming that armed rebellion would be justified. I would hope that a substantial number of American citizens wouldn't be inclined to take up arms against the federal government unless all democratic efforts had failed (or, you know, unless they were worried about it taking their slaves away), in which case almost by definition the government we're talking about would not be a particularly nice or merciful one. So it seems reasonable to me that the situation we're postulating almost demands presuming that the hypothetical totalitarian U.S. government would use all means at its disposal to put down an armed rebellion.

In which case you darned well better hope that a lot of people have firearms and know how to use them and that plenty of the Armed Services would see the need to desert and take as much as they could with them. It would be a situation in which every time the government tried to use exteme firepower they provoke more support for the rebels.

I still submit that you are overlooking Posse Comitatus or are assuming that all of the armed service from the 4 and 5 star flag officers to the recruit are willing to overlook it.

 

[PhantomWolf]

Armed societies have been shown to reduce crime, while societies where government tries to forces itself to have a monopoly on defense become defenseless, and often tyrannical.

And yet strangely the US, an armed society, is among the top when it comes to violent crime while Japan, an unarmed and some would call tyranical society, is amongst the lowest....

 

[quixotecoyote]

The first 13 words define a reason but not necessarily the only reason. However even if we were to assume you are correct and the reason for the Second Amendment no long is valid -- so what? That does not negate the following 14 words.

Why doesn't it? If an amendment said "Beasts of burden being necessary for the transportation needs of the country, the right of the people to house horses and oxen on their property shall not be infringed" I doubt we'd have much argument that since beasts of burden are not necessary for transportation, zoning restrictions regarding animals should stay constitutional. The need for militias is equally antiquated, and the justification for the amendment equally archaic.

eta: Example chosen to show an invalid reason, not because I actually think people kept oxen penned up in the dining room

If you want to remove the Second Amendment, specifically the last 14 words, then invoke Article V of the Constitution.

Why?

While you are at it has there ever been a need for Amentment III since King George and crew were routed in the 1770's? Why not eliminate it as well since it seems to be obsolete?

Houses are still important. Soldiers are still around. I think its kinda funny you picked this one since the creation of a professional army largely negated the need for militias that justified the 2nd amendment.

 

[Yjacket]

Why doesn't it? If an amendment said "Beasts of burden being necessary for the transportation needs of the country, the right of the people to house horses and oxen on their property shall not be infringed" I doubt we'd have much argument that since beasts of burden are not necessary for transportation, zoning restrictions regarding animals should stay constitutional. The need for militias is equally antiquated, and the justification for the amendment equally archaic.




Why?





Houses are still important. Soldiers are still around. I think its kinda funny you picked this one since the creation of a professional army largely negated the need for militias that justified the 2nd amendment.

Seems to me that you are boxing yourself into an unpleasant corner. By your argument the Second Amendment is obsolete but the Third Amendment is not, both for the same reason. Cannot follow your thinking on that at all.

Why invoke Article V of the Constitution you asked. Because that is the way you change the document.

 

[Alex Libman]

And yet strangely the US, an armed society, is among the top when it comes to violent crime while Japan, an unarmed and some would call tyranical society, is amongst the lowest....

U.S. isn't on top when it comes to crime, just its gun-controlled urban areas.

And... Does a little petty violence have infinite harm? Would you be willing to live in a concentration camp, for example, if it meant greater personal safety?

Japan would have been a better country if it had universal gun ownership. Its whole history would have been different: no feudal tyranny, no emperor-imposed isolation until mid-19th century, no tyrannical modernization (which was good but quite a bit of blood was spilled, like in that Tom Cruise movie), no nationalist militarism that helped lead to imperial expansion and WW2...

Petty criminals kill thousands (and in many cases gun deaths are cases of legitimate self-defense). Gun-grabbing governments, on the other hand, kill millions and harm billions. "Eternal vigilance is the price of liberty." Etc.

I'm not a gun nut myself though: never even held one in my hand, and probably never will. There are smarter methods of self-defense, but helpless obedience to a government's monopoly of insurmountable power isn't one of them. Anti-gun activists are not genuinely against guns, they just want the bully who (they think) is their buddy to have all the guns to itself.

 

[PhantomWolf]

U.S. isn't on top when it comes to crime, just its gun-controlled urban areas.

Perhaps you need to check the violent crime stats, and not all the US urban areas are gun controlled.

And... Does a little petty violence have infinite harm? Would you be willing to live in a concentration camp, for example, if it meant greater personal safety?

Strangely enough there are positions between giving everyone a gun and locking everyone up.

Japan would have been a better country if it had universal gun ownership. Its whole history would have been different: no feudal tyranny, no emperor-imposed isolation from the west until mid-19th century, no tyrannical modernization (which was good but quite a bit of blood was spilled, like in that Tom Cruise movie), no nationalist militarism that helped lead to imperial expansion and WW2...

Funny thing then that weapons were freely availible and widely used in Japan until the Emperor got sick of the freuding and wars made weapons illegal. Perhaps you mean France... oh hang on, they had guns and thousands got killed in the Revolution and what happened after.....

Petty criminals kill thousands (and in many cases gun deaths are cases of legitimate self-defense). Gun-grabbing governments, on the other hand, kill millions and harm billions. Eternal vigilance is the price of liberty.

And yet once again, the US (which is under a pre-gun constitution) seems more likely to start wars that the New Zealand and Australian (Both anti-gun) Governments....

 

[JamesDillon]

I still submit that you are overlooking Posse Comitatus or are assuming that all of the armed service from the 4 and 5 star flag officers to the recruit are willing to overlook it.

Well, yes, I am; let's get back to Smiledriver's original argument for a moment, which was that Second Amendment rights are necessary as a "bulwark against tyranny." In other words, violent uprising would be (arguably) constitutional only if the United States government becomes tyrannical, and it is, I submit, a necessary characteristic of a tyrannical government that it doesn't respect constitutional or statutory limitations on its exercise of force. In other words, in order for the "bulwark against tyranny" argument to come into play, the U.S. government would have to devolve into a totalitarian dictatorship, and under those circumstances I don't think it's appropriate to expect the government to respect any legal constraints on its power. If you don't think such a situation could ever arise, then Smiledriver's justification for Second Amendment rights seems pointless (because no armed rebellion would ever be justified).

For the record, I do tend toward supporting an individual rights interpretation of the Second Amendment, but not for the reasons Smiledriver mentioned. It seems to me that the textual analysis of the very poorly drafted Second Amendment is either too close to call or simply has no objectively right answer, in which case I support erring on the side of finding an individual right (sort of a rule of lenity applied to constitutional interpretation). If the states want to limit that individual right, let them say so clearly by passing a constitutional amendment-- which surely would never pass today. But I also think a universal right to bear arms is quite hard to defend on policy grounds alone, and that arguments along the lines of Smiledriver's "bulwark against tyranny" just aren't very convincing because the right to keep small arms really isn't an effective bulwark against tyranny (and the cost-benefit analysis comparing the number of lives lost in firearm crimes and accidents each year vs. the remote possibility of a successful and justified popular uprising against a totalitarian U.S. government surely weighs against recognizing the right), and no one would argue that the Second Amendment bestows a right on private citizens to keep nukes or other weapons that could convceivably topple the United States government.