Another Second Amendment win in California

[W.D.Clinger]

Is it significant that the state constitutions almost all specify "self-defense" and the U.S. Second Amendment does not?

Probably not, because that's a consequence of selection bias. I filtered (cherry-picked) the state constitutions by quoting only those that (1) mentioned defense of self as well as the state (or mentioned the right of free white men to defend themselves, presumably against enslaved non-whites), (2) had been adopted by 1850, and (3) for which there is at least some case law interpreting the right as an individual right.

By the way, cherry-picking is legitimate when producing a counter-example to a general or overly broad claim. It takes only one counter-example to falsify a general claim such as ben m's.

I ran out of time to respond to this in my previous message:

Right! That's the sort of thing that can happen, of course, in a country where gun ownership is regulated by legislature and not by the Constitution. If the voters of Idaho are happy with loose gun laws, that's what they'll get. The voters of Washington DC wanted stricter gun laws---it was not some federal imposition---but Heller overruled them. Weird, huh?

I applaud your (implied) desire to exempt the voters of Idaho from restrictive federal laws and regulations that may be more popular in other states than in Idaho.

Federal gun control legislation contributed to the rural backlash that contributed to the political environment that contributed to Heller.

We aren't discussing math or physics here. We're discussing law and its interpretation by courts, which is a far murkier subject. Those who say the history and interpretation of the right to keep and bear arms is simple or straightforward are fooling themselves or trying to fool others.

 

[ben m]

So you say. It looks to me as though you're just wrong about that.

The "keep and bear arms" language was used to refer to individual rights in several state constitutions adopted before or within living memory of the Second Amendment's adoption:

Sorry, maybe I was unclear. I was referring to the prefatory language---the "security of a free state" clause, which is over and over again attached to something obviously meaning a collective right. Stevens dwells on the militarity of the "keep and bear" phrase, but that's not what I meant to refer to. I recognize that the "defense of themselves" language is in many state constitutions. (Vermont's also mentions hunting rights.)

 

[newyorkguy]

.
Pennsylvania (1776)...the people have a right to bear arms for the defence of themselves and the state.
Vermont (1777)...the people have a right to bear arms for the defence of themselves and the State

These two states have amendments that predate the U.S. Second Amendment. They use the words "defence of themselves." The U.S. Second Amendment does not use those words. Why? If the Second Amendment was intended to give law abiding citizens the right to bear arms for lawful self defense, as is being argued it was, why didn't James Madison (or whoever it was) use this clear language?

Madison was from Virginia. Here's Section 13 of the Virginia State Constitution ratified in 1776 which James Madison (and George Mason) helped write. Like the U.S. Second Amendment, Section 13 of the Virginia constitution uses the words "well-regulated militia" and does not use the words "defence of themselves."

SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. Link

The other participant was George Mason. We've already been told he wrote:

"17th. That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and be governed by the civil power.”

“19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.”

I just find it hard to accept that anyone can state with certainty that the SA was intended to give citizens the right to carry a gun for self defense.

 

[ben m]

Federal gun control legislation contributed to the rural backlash that contributed to the political environment that contributed to Heller.

Part of that backlash due to is 40 years' worth of NRA's Overton-window-shifting to convince people that plain-old background checks are OMG UNCONSTITUTIONAL TYRANNY AT YOUR DOOR.

Why is it that rural people (20% of Americans) get to legitimately "lash back" when urbanites (80% of Americans) ask for private-sale background checks or anti-trafficking sales registries? You would think that urbanites would have the right to lash back when faced with 10,000 gun murders, mostly urban, made possible in part by the easy-and-cheap-trafficking regime that rural folks insist on so strongly.

 

[W.D.Clinger]

Why is it that rural people (20% of Americans) get to legitimately "lash back" when urbanites (80% of Americans) ask for private-sale background checks or anti-trafficking sales registries?

Because the First Amendment says they have that right.

You would think that urbanites would have the right to lash back when faced with 10,000 gun murders, mostly urban, made possible in part by the easy-and-cheap-trafficking regime that rural folks insist on so strongly.

The urbanites have that right as well.

In case you haven't noticed, there's been a lot of lashing about.

Although you describe this as the rural 20% against the urban 80%, it's hard to understand how that 20% minority could have done so well against the monolithic 80% majority you appear to be postulating. Methinks your description of the situation might be a bit over-simplified.

 

[Jules Galen]

I just find it hard to accept that anyone can state with certainty that the SA was intended to give citizens the right to carry a gun for self defense.

I can certainly bet that the Second Amendment wasn't meant to apply to Black People, Indians, or to Mexicans...and maybe the Irish. Black Militias were never a big thing in the South. But...there were a lot of White Militias formed to chase down run-away slaves. Maybe this is the meaning of the Second Amendment.

 

[ben m]

Methinks your description of the situation might be a bit over-simplified.

Last time I saw numbers, something like 70-80% of Americans supported closing the private-sale loophole. Still hasn't happened, has it? Rural voters do have disproportionate impact, thanks to the Senate. Fervent single-issue rural voters have an even more disproportionate impact.

(I'd bet that, in a nationwide referendum, with equal advertising/voter-education on both sides of the question, you'd also get majority support for:

a) Federal gun-sales recordkeeping
b) Liability laws and/or criminal prosecution of irresponsible sellers
c) Allowing cities to pass their own gun laws (the way we do with alcohol laws)
d) A few minimally-effective and mostly-symbolic bans (large magazines, silencers, probably something to do with 3D printing) that people are disproportionately passionate about on both extremes.)

 

[W.D.Clinger]

hedging your bets

(I'd bet that, in a nationwide referendum, with equal advertising/voter-education on both sides of the question, you'd also get majority support for:

 

[WildCat]

Read about the Militia Acts of 1792. The "subset" you're talking about was considered every white male age 18-45.

Exactly, it is a subset of "the people". You do realize that not every person in the USA was a white male aged 18-45, don't you?

You do a great job proving my point for me, the second clause of the 2nd Amendment clearly is not a reference to the miitia, otherwise it would have been worded "the militia".

It takes a special kind of denial and wishful thinking and bias to conclude otherwise.

 

[WildCat]

You would think that urbanites would have the right to lash back when faced with 10,000 gun murders, mostly urban, made possible in part by the easy-and-cheap-trafficking regime that rural folks insist on so strongly.

That's funny, in court depositions when government witnesses defending registration were challenged to provide evidence that registration was useful in solving crimes or in tracking guns they were completely unable to do so. Kind of like how those against gay marriage were unable to show that it harmed children.

The reason, of course, is that in such states serial numbers from guns are easily removed by illegal traffickers.

However, registration is very effective in figuring out who has guns that are subsequently made illegal, in fact that is the stated goal of many registration advocates. It's a "first step" for further laws restricting the civil rights of gun owners.

Funny stuff from DC's police chief in a deposition:

Q Okay. Now, in the District, do most people
who, if I can say so, regularly engage in criminal
activities register their guns ?
MR. SAINDON: Objection. Vague.
THE WITNESS: Can you ask the question again ?
BY MR. PETERSON:
Q Yeah. Do most people who regularly engage in
criminal activities in the District register their
guns ?
A No.
Q Drug dealers, people who engage in shootings
outside nightclubs, that sort of thing, gang members ?
A No.
Q Would be it correct to call the proportion of
folks like that who commit those crimes and also
register their guns a very tiny percentage probably ?
A That would be correct.
....
Q Okay. In your experience, do people who are
plotting terrorist attacks register their guns ?
A The majority, no.
.... (No terrorist attacks foiled)
Q To the best of your knowledge, have the D.C.
gun registration records ever been used to foil a
terrorist attack ?
A No.
Q Okay. And have those registration records,
to the best of your knowledge, ever been used to solve
an incident of terror i sm after it occurred ?
A Not that I'm aware of.



Q Okay. You mentioned in your report the
bombing of the Murrah Federal Building in Oklahoma
City and the 1993 shootings outside of the CIA
headquarters in Langley. Neither of those obviously
was within the District, correct?
A Correct.
Q Was the bombing of the Murrah Federal
Building carried out by the use of firearms?
A No.
Q That was a truck bomb, right ?
A Correct.
Q So that bombing was indeed caused or
prevented or otherwise affected by other firearm
registration laws ?
A Correct.
Q The CIA shootings in Langley that you
mentioned, was that shooting carried out with a
registered firearm ?
A No
Q Okay. So that crime wasn't solved by using
registration data, correct ?
A Correct.
Q But it was solved, right ?
A It was.

 

[WildCat]

I can certainly bet that the Second Amendment wasn't meant to apply to Black People, Indians, or to Mexicans...and maybe the Irish. Black Militias were never a big thing in the South. But...there were a lot of White Militias formed to chase down run-away slaves. Maybe this is the meaning of the Second Amendment.

It's funny you say that, because much of the modern gun control efforts were aimed at keeping those minorities from having guns. Especially those in urban areas.

Recording of Chicago Mayor Daley talking to President Johnson in 1966. At the 12:25 mark you hear him asking for help from the Feds in keeping non-whites from getting firearms.

Apparently the 2nd Amendment protected their right to do so, so the modern gun control movement looked for ways to keep them from getting them. Therefore we got bans in Chicago and DC, laws against "Saturday Night Specials" because they were so cheap even minorities could get them, bans on open carry in Californis to disarm the Black Panthers, etc etc.

 

[Gawdzilla Sama]

It's not rocket science.

I'm sure that there are smarter cats than I that have a degree in philosophy that can put it into better words, but "I" exist. No other individual has the right to deprive me of my existence unless "I" instigate violent attack upon their person.

If "I" am subject to attack and use force to protect my right to exist, and that other individual loses their life in the incident, it's up to the social and/or judicial structures in the area to determine if what I did was justified under the customs or laws of this same area. If it's determined "I" acted within the custom or law, "I" face no punishment.

If it goes the other way, 'I" am subject to whatever punishment the society sees fit.

No God, no FSM or mother-may-I,

Humans have an intrinsic right of self defense.

I read that as "because that's what I like to believe".

 

[Giz]

I read that as "because that's what I like to believe".

You don't believe in a right to self defense?

 

[ThunderChunky]

It takes a special kind of denial and wishful thinking and bias to conclude otherwise.

I find that it's quite common actually.

 

[ben m]

You do a great job proving my point for me, the second clause of the 2nd Amendment clearly is not a reference to the miitia, otherwise it would have been worded "the militia".

You didn't answer my prompt.

Suppose there was no 2nd Amendment at all. Write me an example of a 1790 Federal law ordering the disarmament of "the New Hampshire militia". Tell me what guns would be collected from whom in 1790 in order to render New Hampshire incapable of raising an armed militia. (You may presume New Hampshire's cooperation in this matter.)

 

[Cylinder]

Write me an example of a 1790 Federal law ordering the disarmament of "the New Hampshire militia".

Congress passed such a bill in 1792.

 

[WildCat]

You didn't answer my prompt.

You're "prompt"?

Is "the militia" a subset of "the people"? A "yes" or "no" answer please.

Suppose there was no 2nd Amendment at all.

But there is.

Write me an example of a 1790 Federal law ordering the disarmament of "the New Hampshire militia". Tell me what guns would be collected from whom in 1790 in order to render New Hampshire incapable of raising an armed militia. (You may presume New Hampshire's cooperation in this matter.)

Why would I want to engage your diversion from avoiding the issue of whether "the militia" is a subset of "the people"?

 

[ben m]

Congress passed such a bill in 1792.

No they didn't. The militia acts of 1792 dictated how the state militias could be mustered under Federal command; they disarmed nobody. The militias were professionalized under the Dick Act of 1903 and became the modern National Guard under weird joint state/federal control.

 

[ben m]

Why would I want to engage your diversion from avoiding the issue of whether "the militia" is a subset of "the people"?

Madison's statement "the right of the people to keep and bear arms" was phrased in order to impact militias, in a particular sense Madison et. al. are known to have intended. I'm here to argue that the phrasing "the right of the miltias to keep and bear arms"---whatever its set-theory or dictionary-parsing merits might have been---could not have had effect Madison needed his phrase to have.

I don't see where the set-theory question gets us any closer to understanding that question.

It's like: Why are you avoiding the issue of whether a cider press is a subset of press? Nice question for a lexicographer but not really relevant to the 1st Amendment, is it?

 

[WildCat]

Madison's statement "the right of the people to keep and bear arms" was phrased in order to impact militias, in a particular sense Madison et. al. are known to have intended. I'm here to argue that the phrasing "the right of the miltias to keep and bear arms"---whatever its set-theory or dictionary-parsing merits might have been---could not have had effect Madison needed his phrase to have.

I don't see where the set-theory question gets us any closer to understanding that question.

You're still avoiding the question, despite a lot of word salad.

Is "the militia" a subset of "the people"? "Yes" or "no" please.

It's like: Why are you avoiding the issue of whether a cider press is a subset of press? Nice question for a lexicographer but not really relevant to the 1st Amendment, is it?

A cider press is not a subset of the printing press, sorry. I'm not seeing the relevance here?