Second Amendment

[severin]

No, I can't provide examples because I don't know what existing checks are. I just meant that, whatever they are, they don't seem to work.

Responsible people will always be responsible - it's the rest who need checking up on.

 

[Kodiak]

There are many organizations which provide such courses, as well as excellent books on the role of firearm in personal protection, all of which illustrate what to do and what not to do.

NRA Trains Record Number of Police, Military, and Civilian Instructors

 

[severin]

The reason I started this thread was to learn about gun law in the US. I'm asking questions and making suggestions to that end, not because I think I have the solution.

Dinner time now.


Well Winston Churchill would say that, wouldn't he.

 

[Suddenly]

NRA Trains Record Number of Police, Military, and Civilian Instructors

Wasn't that originally the point of the NRA, to further gun safety and education?

It is unfortunate that they are regarded more as a political organization now. An organizarion simply dedicated to gun safety issues and education would be a valuable thing, but because of the political stuff everything they do seems tainted with suspicion of bias.

 

[Kodiak]

Wasn't that originally the point of the NRA, to further gun safety and education?

It is unfortunate that they are regarded more as a political organization now. An organizarion simply dedicated to gun safety issues and education would be a valuable thing, but because of the political stuff everything they do seems tainted with suspicion of bias.

Whats wrong with like-minded citizens banding together to further a cause? The NRA makes no bones about its pro 2nd amendment bias.

So long as they are public and can stand up to skeptical scrutiny, I will continue to be a proud member.

 

[Wolverine]

No, I can't provide examples because I don't know what existing checks are.

If you're interested, here's a detail of the background check process on a federal level (called the National Insta Check System [NICS]) conducted via the Federal Bureau of Investigation. Some states require additional background investigation be performed by state offices before a puchaser may receive their firearm(s).

I just meant that, whatever they are, they don't seem to work.

Example, please? Again, just curious.

 

[Suddenly]

Whats wrong with like-minded citizens banding together to further a cause? The NRA makes no bones about its pro 2nd amendment bias.

So long as they are public and can stand up to skeptical scrutiny, I will continue to be a proud member.

I never said it was wrong.

I just think their political activities impede the effectiveness of their education and safety programs, as their obvious bias against gun regulation makes them less then credible when they speak on issues relating to gun safety. They have a political reason to make guns seem safer than they are. Whether they do or not is another story, but they have removed themselves from any claim of being a neutral authority.

Also, since you seem to want some sort of attack on what the NRA stands for, I submit for your enjoyment:

"Pro 2nd amendment" bias? More like "try to convince people to ignore the first clause of the 2nd Amendment so we can use the federal courts to prevent individual states from enacting weapons regulation" bias. I'm pro 2nd Amendment. The whole thing though, not just certain parts.

The reason why the Supreme Court has yet to step up and decide the current circuit split is because most of the conservative members are strict textualists and they know darn well that the so - called "individual rights" view is nothing but a false contrapositive of the holding in Miller, and to find for that they would have to suscribe to the view that the first clause is somehow a throwaway, and they won't because of their textualist bent. So they leave well enough alone because they don't want to put the final nail in the gun nut coffin.

 

[severin]

And Charlton Heston doing the mad-eyes "cold dead hands" rant doesn't help their cause much, either.

 

[Wolverine]

And Charlton Heston doing the mad-eyes "cold dead hands" rant doesn't help their cause much, either.

Thankfully, he's now out of the picture.

 

[severin]

Why, did he die?

 

[Wolverine]

Why, did he die?

No, he stepped down from his NRA position this past April.

Story

As an NRA member, the decision to appoint him a figurehead always drove me nuts, and I wrote the organization more than once voicing my disapproval.

BTW, did you see my previous question?

 

[severin]

Was that because his hands are now too shaky to hold a gun?

What question - the request for examples? As I said before, I don't have any, I'm trying to learn.

 

[Wolverine]

Was that because his hands are now too shaky to hold a gun?

I suspect it had more to do with the fact that Heston was diagnosed with Alzheimer's in 2002.

What question - the request for examples? As I said before, I don't have any, I'm trying to learn.

My most recent question addressing your comment about background checks not working. I noted your earlier statement that you didn't have any examples of what sort of more stringent checks you'd like to see, being unfamiliar with the process (for which I provided a resource).

 

[John Harrison]

I never said it was wrong.

I just think their political activities impede the effectiveness of their education and safety programs, as their obvious bias against gun regulation makes them less then credible when they speak on issues relating to gun safety.

Which regulation? (You are aware of the multiple regulations that the NRA has supported in the past. Right?)

They have a political reason to make guns seem safer than they are. Whether they do or not is another story, but they have removed themselves from any claim of being a neutral authority.

Seem safer? Is it about reality or not? The only responsibility the NRA has is to stick with the facts, not to worry about peoples feelings.

 

[AmateurScientist]

I have been reluctant to post in this thread, as these Second Amendment rights debates tend to get bogged down in so much political rhetoric and persons attacks.

Nevertheless, I must state that I find Supercharts' and Kodiak's understandings and statements of the issues most persuasive.

In the United States v. Miller, 307 U.S. 174 (1939) case others have mentioned, the issue was whether possession of a saw-off shotgun was guaranteed a citizen by the Second Amendment. The court decided the question in the negative on the ground that such a weapon was not one that had been shown to be "ordinary military equipment" that could "contribute to the common defense." Id. at 178. In doing so, the court reversed a lower court's holding that the National Firearms Act was unconstitutional. It is interesting to note that this case was decided during a historical period when the expansion of federal powers under the Commerce Clause was unprecedented and virtually unchecked.

I wonder if the case would be decided the same today, especially in light of the court's momentus decision in the opposite direction in United States v. Lopez, 514 U.S. 549 (1995), which struck down the Gun Free Zones Act of 1990. The relevant portion of that act forbade "any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone." Amazingly, and contrary to the wholesale trend in constitutional law in the 20th Century, the more conservative Supreme Court in 1995 struck down the statute on the ground that it was an unconstitutionally excessive exercise of Congress' authority under the Commerce Clause, which had previously been used in the 20th Century to justify federal intrusion into nearly every aspect of daily life. Basically, the court said that regulating where persons may exercise the right to possess a firearm on private, state or public property is exclusively within state control.

A more recent case, Printz v. United States, 521 U.S. 98 (1997), has touched upon the Second Amendment, albeit only tangentially. That case, its majority opinion authored by Justice Scalia, struck down certain provisions of the so-called Brady Act, also known as the Brady Handgun Violence Prevention Act, which amended the Gun Control Act of 1968, this country's most substantial federal legislation regulating the distribution of firearms, and by extension the lawful possession of them.

In rejecting the minority's view, Scalia relied upon the "Necessary and Proper" clause of Article I, Section 8, which allows Congress to enact laws that, among other things, carry out the execution of Congress' power to regulate interstate commerce. Again, Scalia found the Printz case to be a Commerce Clause case, and held Congress exceeded its authority in mandating that state and local chief law enforcement officers (CLEOs) carry out certain duties imposed upon them by the Brady Act. Basically, in a very convoluted opinion, Scalia said that Congress cannot commandeer state and local officials and press them into federal service for the enforcement of federal law and regulation.

Justice Thomas wrote a concurring opinion in which he stated his belief that Printz is really a Tenth Amendment case. He opines that because the federal government is one of enumerated, hence limited, powers, it cannot regulate purely intrastate matters. He believes the sale of firearms in purely intrastate, point of sale transactions, is one of those matters beyond the scope of Congressional authority. Thomas remarks in a footnote that in the Miller case cited above, "The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment."

Thomas also expresses apparent support for the notion that the right expressed in the Second Amendment is a personal right, as the NRA contends. Here is his second footnote, in its entirety, from the Printz concurring opinion:

Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984); Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. See, e.g., Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L. J. 551 (1991); Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989); Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984). Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate.

These are the last words of Justice Thomas' concurring opinion, which I find interesting and provocative:

Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries §1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.

The Justice Story he mentions is Justice Joseph Story, appointed to the United States Supreme Court at age 32 by President James Madison, and who essentially founded the Harvard Law School. Justice Story wrote the majority opinion in the famous case involving the Amistad. At the time of his death, Story was considered to be our country's greatest jurist.

Other comments on the Second Amendment by Justice Story:

One of the most influential early commentators on the U.S. Constitution was Supreme Court Justice Joseph Story. In his Commentaries on the Constitution of the United States, vol. 3 at pp. 746-747 (1833), he has the following to say about the Second Amendment:

"§ 1889. The next amendment is "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.

"§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time ofanding armies in time of peace, both from the enormous expenses, with which they are attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. [FN1] And yet, thought this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How is it practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. [FN2]

"§ 1891. A similar provision in favour of protestants (for to them it is confined) is to be found in the [English] bill of rights ofll of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law." [FN3] But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege."

Footnotes:

1.

1 Tucker's Black. Comm. App.300; Rawle on Const. ch.10, p.125; 2 Lloyd's Debates, 219,220.
2.

It would be well for Americans to reflect upon the passage in Tacitus, (Hist.IV ch.74): "Nam neque quies sine armis, neque arma sine stipendis, neque stipendia tributis, haberi queunt." Is there any escape from a large standing army, but in a well disciplined militia? There is much wholesome instruction on this subject in 1. Black.Comm. ch.13, p.408 to 417.
3.

5 Cobbett's Parl. Hist. p.110; 1 Black.Comm. 143, 144.

And now some commentary from the late 20th Century:

Story's passage on the Second Amendment supports the proposition that the phrase "well regulated" militia does not mean regulated as not mean regulated as we, citizens living under the omnipresent regulation of the post-New Deal federal government understand "regulation." Instead, "well regulated" in this context, means "properly functioning" and "uniformly equipped." Note how Story laments Jacksonian America's growing indifference and hostility to maintaining a well regulated militia -- not on political or philosophical grounds, but rather because Americans were getting lazy! In fact, I'd say he was prescient, in respect to the last sentence of § 1890. As for § 1891, history repeats itself, as we in the US have allowed our RKBA to become undermined under various pretenses, such as "the war on crime," or the specious argument that of all rights of "the people" enumerated in the Bill of Rights, the Second Amendment alone applies to states, not individuals.

Commentary Copyright 1998-2000 David S. Markowitz

from David Markowitz' Page

I have to agree with Supercharts that "well regulated militia" clearly meant at the time of the passage of the Bill of Rights the entire body of able bodied men (at least the white men of the time) between the ages of 18 and 45. This is confirmed by the enactment by Congress of The Militia Act of 1792. It required all able-bodied men, ages 18-45, to enlist in the militia of their respective home states. Each man was required to supply his own musket, bayonet, belt, and cartridges. It served as the pathway to the creation and preservation of the military reserve and guard units we know today.

I find it odd that given the U.S. Supreme Court's interpretation of the Second Amendment in Miller, the Second Amendment would seem to support the right of individuals to keep and maintain their own private military arms, such as M-16s, AK-47s, M-60 machine guns, SAWs, handgrenades, and all sorts of other small arms that constitute "ordinary military equipment" that could "contribute to the common defense."

This is completely at odds with the anti-gun rhetoric which is often debated on the House and Senate floors denouncing the private ownership of so-called "assault rifles." The strawman argument they most often use is that hunters do not use M-16s to hunt deer. They ignore that the Second Amendment was never intended to protect the rights of hunters engaged in hunting. It is and always was intended to protect the citizenry from foreign invasions and domestic threats, including military coups and other tyrannical abuses of a centralized government.

I have to side with the "gun nuts" and the kooky private militia people on this. They happen to be right on principle. Gun murders and accidental shootings are absolutely beside the point.

Freedom is never free. All rights come with costs. As has been so ably demonstrated elsewhere in this thread, the private ownership and use of automobiles, since their introduction, has been a far greater threat to the lives and safety of citizens of the U.S., both those culpable in bringing about their own harm, and the completely innocent, than private ownership of guns has ever been. I've never heard anyone attempt to argue seriously that automobiles should be banned.

How many times must the mantra "Guns don't kill people, people do" be repeated? Substitute "cars" for "guns" and the argument becomes equally valid. The most often heard counterargument, that cars are not designed primarily to hurt or kill people, but guns are, misses the point. The lawful use of guns is not to hurt or kill innoncent people; it's to deter harm or to stop it from being committed on innocent victims of violence. Both automobiles and guns may be used unlawfully to seriously injure or kill persons. The negligent or reckless use of either may result in serious bodily harm or death to others. So?

AS

 

[DialecticMaterialist]

Yes lets take the second amendment- oh soo literally- and never apply it to specific context. Also lets not recognize the fact that its a law made what? 200 plus years ago, and is not essential for democracy. Soon everyone can have any sort of gun they want, as well as tanks, missiles and artillery pieces. Nobody will ever commit a crime--knowing his or her neighbor, armed with nukes, can blow up a city.

Also if you guys aren't scared of the "gubnet", why this fuss about the gubnet taking your guns? Just fight it off, Branch Davidian style. (Those poor martyrs). I mean you're not scared of the big, bad, gubnet are ya?

Also isn't it obvious that outlawing guns would lead to a disaster on a massive scale? Without having guns for protection people are easy prey for all sorts of predators, "gubnet" tyrants and crime lords. That's why Japan, Britain, and France are tyrannies, despite outlawing guns, and that's why their crime rate is so high.

 

[AmateurScientist]

Yes lets take the second amendment- oh soo literally- and never apply it to specific context. Also lets not recognize the fact that its a law made what? 200 plus years ago, and is not essential for democracy.

Given the historical moment during which our country was founded, and how it was founded, the framers of the constitution most certainly did consider gun ownership to be essential for democracy.

Our nation's birth was unique. It is not too hard to understand why its devotion to private gun ownership should be unique as well.

That's why Japan, Britain, and France are tyrannies, despite outlawing guns, and that's why their crime rate is so high.

See comments above. Also, Japanese culture is very, very different from most Western cultures. It is a country of remarkably uniformly law-abiding citizens. Japan values collective order and prosperity over individual freedom.

The U.S., by contrast, holds individual liberty and freedom paramount to everything else, except for national security. That, and the history of how our nation was founded, naturally lead toward distrust and suspicion of government. Guns in the hands of the people are a nice countermeasure to assuage such distrust and suspicion.

As for violent crime in other Western cultures, it certainly exists. Despite the relative absence of guns, plenty of violence occurs in the U.K. and in France. How about the abhorrent bouts of mass violence which sometimes occur at soccer games, for but one example? We don't see anything comparable at U.S. sporting events. The only conclusion I can gather from these disparate facts is that our cultures are simply different.

Guns don't cause violence. People cause violence. Take away guns and you take away gun violence. Other forms of it will remain. Violence wasn't invented with gunpowder. Anti-gun persons seem to believe it was.

AS

 

[Wolverine]

Excellent posts, AS.

 

[DialecticMaterialist]

Amature I wish to first off say the post above was not directed at you, they were directed at the pro-gun fanatics/extremists, as I think you made some fairly good points. I'm sorry about the confusion. However I think in the end your arguments are still unsufficient and your irrelevant.

First off you say "guns don't kill people, people do." In a sense you are right, but that misses the point. The point is its a matter of degree, and guns make it far easier to kill a person. That's like saying "terrorists don't kill people: people kill people." "Marxism doesn't fail: people fail."

Secon, all the mentioned countries may still have murder, but much less then the US overall. You can point to rare incidents of violence, but they are exactly that: rare. Like protests in China.

Your main point seems to be that we need guns to balance the government. I maintain such a protection is an illusion and not worth the cost. Militias in the past have never been a match for a professional army. Only rarely in history has a militia been strong enough to stand up to an army, and only under extraordinary conditions.

The Russian revolution occured right after a war, in a relatively backwards state.

The America, a continent away.

And the French during a time of crisis, with the soldiers turning against the army (and a relatively unarmed population).


This gap between professional armies and militias has only increased in time, not decreased. Modern day weapons require more logistics and training then any civilian can get. And they are far too expensive for any civilian to afford. Add to that how much more organized an army is, how much better its communications are, how they don't have to worry about feeding their families while out fighting or endangering them, etc. And the results are obvious.

Japan and Britain may have a different culture then the US, but this consistency over various cultures should prove the rule imo. The rule is less guns does not equal more tyranny or more crime. Quite the contrary it seems to be.

And if push comes to shove I doubt the American people could stand against the American military. All modern day rebelions, unless they had foreign aid, have failed. And this has been in relatively backwards and unstable nations. I can't imagine such ever succeeding in the first world. Can you imagine a group of rebels taking out the Chinese government?Neither could I. And the US government would be harder.

This is why Orwell said, and I agree, fighting totalitarianism from the inside is pointless. You must either avoid it, wait it out, or use outside force.

So if the argument is that the law was made in order to protect civilians from government tyranny, the law has obviously outlived its usefulness. It ultimately comes down to a matter of value judgment, and I simply do not see the benefit of protection against possible tyranny in the future, as worth the cost; deaths caused by guns now. The danger of guns, in the wrong person's hands represents a greater threat then plausible tyranny imo.


That law is outdated, in the past militias found it very difficult to stand against professional armies, at the present it is almost impossible and such would almost certainly do more harm then good. As modern day examples in regards to the Branch Davidians, and Kurd Rebels should teach us. And those people had weapons more powerful then most civilians either want or would feel safe having on the street. Also in the former, the government used kids gloves, in the latter, it was in the third world. Yet both didn't even have a chance.

The point is then that guns DO kill people; AND people kill people. But guns make it a lot easier for people to kill people.

 

[Kodiak]

AS...

All I can come up with is "WOW!"