The 2nd Amendment and the US Supreme Court

[SDC]

One of the other arguments made to the Court is that you don't "bear arms" against a rabbit, or even against an intruder. You only "bear arms" in a military context, not in a hunting context or in a personal self-defense context. Although the other side disagrees with this argument (and cites a few instances in which "bear arms" is used possibly in a non-military context), the argument is also made that this case involves the right to "keep arms," not the right to "bear arms."

Forget the rabbits. What about the Right to Arm Bears?

 

[Beerina]

Well, let's be honest - the people who run the government don't, generally, support the principles espoused by the framer

The novelty of a government created and given a limited set of powers, and no more, gets in the way of the power hungry. Therefore they will work to break down, work around, reinterpret, anything they can think of, to increase their power.

This issue aside, are there any studies of an area of the US that had gun control instituted, and did it's crime go up or down (with respect to other similar areas that didn't change.) Same question for areas that had gun control repealed, or CCW restrictions eased.

 

[Chaos]

I´ve just looked up the wording the Second Amendment. It seems to me that, rephrased in modern terms, it goes like this:

"Since a well-regulated militia is necessary for the security of a free State, the citizens must not be prevented from owning small arms."

This poses several issues to me:

First, as it says "security of a free State", how does anyone get the idea that this is about people "protecting" themselves from their government, or protecting themselves from criminal? It seems clear enough that this is about defending the US against invaders.

Second, what is this "well-regulated militia"? In context with the first point, this could currently mean either the US Army or the National Guard.

Third, is private gun ownership actually necessary for the "security of a free State"? Wars are not won with pistols and hunting rifles, they are won with tanks, bombers and cruise missiles.

Fourth, assuming either that there is no well-regulated milita, or that it is not necessary for this militia for people to own small arms, or that this militia is not necessary for the security of a free State - would this mean that private gun ownership could now be prohibited?

 

[Drudgewire]

If you don't count the comma which separates the "well regulated militia" part from the overall statement.

Bottom line, this declarative clause reads alone:

"...the right of the People to keep and bear arms, shall not be infringed."

We don't argue the sentence structure of any other part of the Bill of Rights, but for this one part of it the founding fathers suddenly forgot grammar? Nope. They give a reason (perhaps they felt down the line there'd be freedom-hating people arguing against the right?), but it doesn't say BECAUSE we might have to rise up against the government some day we should have it. It just says "the right of the people to keep and bear arms, shall not be infringed."

At least that's how this gun-totin' cowboy reads it.

 

[LTC8K6]

"The people" means the people everywhere else in the BOR. It's only in the 2nd A that folks try to say it doesn't mean the people.

 

[SDC]

The novelty of a government created and given a limited set of powers, and no more, gets in the way of the power hungry. Therefore they will work to break down, work around, reinterpret, anything they can think of, to increase their power.

This issue aside, are there any studies of an area of the US that had gun control instituted, and did it's crime go up or down (with respect to other similar areas that didn't change.) Same question for areas that had gun control repealed, or CCW restrictions eased.

The study would be very difficult. NY City, for example, has among the toughest gun control laws ... But plenty of illegal guns, in part because out-of-towners are aware of this, and bring them in and sell them illegally. We don't have closed borders between states. But meanwhile NYC has among the lowest per capita violent crime rates in the country among major cities. Is that because of gun control? I doubt it. DC has tough laws and very high violent crime.

It's like southern states, or Texas, with both very high murder rates and high rates of executions. Detroit and Washington DC have had very high murder rates but in neither place is the death penalty applied (except in extraordinary federal circumstances in which local juries and judges can be circumvented.) That is, cause/ effect don't seem to track well.

My point is really I don't see how the study which you suggested can get done, not whether gun control is good or bad. I'm inclined to believe that the locality should be entitled to control it. That means, for example, that a Michigander with a CCW permit (I used to live there), shouldn't expect it to be valid here in midtown Manhattan. I doubt anyone is dumb enough to try, but one never knows.

 

[SDC]

I´ve just looked up the wording the Second Amendment. It seems to me that, rephrased in modern terms, it goes like this:

"Since a well-regulated militia is necessary for the security of a free State, the citizens must not be prevented from owning small arms."

This poses several issues to me:

First, as it says "security of a free State", how does anyone get the idea that this is about people "protecting" themselves from their government, or protecting themselves from criminal? It seems clear enough that this is about defending the US against invaders.

Second, what is this "well-regulated militia"? In context with the first point, this could currently mean either the US Army or the National Guard.

Third, is private gun ownership actually necessary for the "security of a free State"? Wars are not won with pistols and hunting rifles, they are won with tanks, bombers and cruise missiles.

Fourth, assuming either that there is no well-regulated milita, or that it is not necessary for this militia for people to own small arms, or that this militia is not necessary for the security of a free State - would this mean that private gun ownership could now be prohibited?

You're a-talkin' like a European.

Remember, second amend was about 1790 or so. Further, the US had just finished a revolution directed precisely against what was regarded as a tyrannical government.

There is and has been for many years profound tension over the extent to which the constitution should be applied as directed in the original; and how much it should evolve with the times. The argument focuses on gun control (again, 2nd amend) but there are plenty of other topics. If it weren't for the 13th amend (1860s) I'm sure that, despite the actual abolition of human slavery, some people would still argue in favor of slavery because it is recognized in the constitution. (Actually, I'll bet some do argue that way.)

Tons of ink have been spilled over the meaning of such amendments as 14th (equal protection of the laws), 1st (expression, assembly, religion), oh, and quite a few others.

And does the commerce clause apply to any conveyance not horse-drawn?

 

[Drudgewire]

It's being blogged live here:

http://www.scotusblog.com/wp/

And of course you can watch it on CSPAN:

http://www.cspan.org/

 

[SDC]

This discussion -- both in the Scotus blog, and elsewhere -- must seem absolutely bizarre outside the US. What are the usual laws in Europe? I gather that the rural population in the UK are relatively well armed -- shotguns and the like, anyhow. I think Canadians are pretty well armed too, though less inclined to use the guns on one another. Imagine CCW permits in the Euro zone...

 

[Bikewer]

It's true that now, with the advance of technology, we do not fight wars with pistols and rifles.

Oh, the soldiers have them, but much more potent ordnance and weapons tend to tell the tale.

Not so back when the Framers were writing the amendment. Our ancestors could indeed grab that Brown Bess or "Pennsylvania Rifle" and head out to battle, armed pretty much as would be their opponents.

Our ancestors surely did not envision being able to purchase a single weapon which would have more firepower than an entire platoon of Colonial troops.
Did they intend that private ownership of firearms merely be an adjunct to the military; the "Minutemen"? Or, as often claimed, as a "bulwark against tyranny",with armed citizens able to resist governmental authority if need be?

The idea of sporting firearms in the hands of private citizens comprising a realistic hedge against some sort of totalitarianism seems a bit of a stretch nowadays. There are those on the "pro-gun" side who think that civilians should indeed have access to military weapons for this very purpose. (fortunately, not very many....)

It would not surprise me to see the SCOTUS waffle on this, but news headlines on the net seem to indicate the justices seem to be leaning towards the side of individual gun ownership. (though trying to read a decision from listening to the testimony is often a failure)

 

[LTC8K6]

Roberts: "I'm not sure why we have to articulate these standards for the 2nd Amendment when the other rights don't have to endure such scrutiny. Why is the 2nd Amendment different?"

That's what I said. Thank you Justice Roberts.

 

[SDC]

OK, for a practical question. Someone has a CCW permit from Michigan. Does it apply when she visits New York city? Everywhere, including universities? (In Michigan, at least a few years ago, CCW permits were considered as applying on campuses. I don't recall whether they applied in churches or all schools.)

I'm not trying to set up an impossible question, because I think it's about to become a real issue -- since it looks like the Supremes will reject the DC law.

 

[Drudgewire]

OK, for a practical question. Someone has a CCW permit from Michigan. Does it apply when she visits New York city? Everywhere, including universities? (In Michigan, at least a few years ago, CCW permits were considered as applying on campuses. I don't recall whether they applied in churches or all schools.)

If you hold a CCW in one state, you have to check to see if the state you're visiting has reciprocity laws, which would mean the states honor each other's licenses. For example, I have a South Carolina CWP. There are 12 states that share reciprocity with us, so I can carry in Alaska, Arizona, Arkansas, Kansas, Louisiana, Michigan, Missouri, North Carolina, Ohio, Texas, Tennessee, and Wyoming.

However, once I apply for a FLORIDA CWP (which requires an application, proof of another state's CWP and $50) the number of states I can carry in jumps all the way up to 32. The only way to increase that further is to take a "tougher" course which grants you the Utah CWP and then you can carry in pretty much any state that allows any citizens to (New York not being one of them).

There are those on the "pro-gun" side who think that civilians should indeed have access to military weapons for this very purpose. (fortunately, not very many....)

I'm still not taking this off my Christmas wish list.

 

[SDC]

Thanks for the detailed info. I've never concerned myself with this (only fired guns at summer camp), so it's all a mystery to me. I wonder whether the limitations by individual states will, after the Supremes decide, be regarded as too onerous.

I wonder whether the Supremes pack heat under those robes...

 

[Drudgewire]

I wonder whether the Supremes pack heat under those robes...

Probably something they'd be wise to keep to themselves. As far as politicos go, the biggest to come right out and say he carries is Bill Richardson.

 

[WildCat]

And of course you can watch it on CSPAN:

http://www.cspan.org/

No you can't, it seems that the video link is overloaded. This must be one of the most-watched SC cases in a long time!

 

[WildCat]

It's true that now, with the advance of technology, we do not fight wars with pistols and rifles.

In fights in urban areas, it is fought mostly with rifles. And even pistols have their place - consider this photo. That's Marine Brad Kasal being carried out of a house in Fallujah during that battle. With that pistol you see still tightly gripped in his right hand he defended himself and another wounded Marine for over an hour while trapped in that house with 3 insurgents. This was after he had been shot 7 times and even took a grenade blast, he nearly bled to death! Eventually more Marines came and rescued him.

I'd bet that the rifle has accounted for more insurgent deaths in Iraq than any other weapon, though it's just a hunch based on what I know of the fighting there.

/derail

 

[Gagglegnash]

Hi

Ok - about small arms and revolution: A lot has been said about, "winning," a revolution with small arms, and I don't think you can, but it's not about the weapons. It's about the nature of revolution.

(Confession: I got to thinking about this, recently, for some reason.)

You, "win," a revolution by, first, gaining the active support of the people of the nation, second, by gaining the support and recognition of the international community of nations.

In order to do the first: All you need is a properly tyrannical government, a few guys with a clear and appealing vision of a better way to do things, and some way for the revolutionaries to be heard.

The less tyrannical the government, the more comfortable the people of the nation will be in their governmentally-approved place. The less clear and appealing the vision, the easier it is for those same people to disagree with or, perhaps worse, ignore the call to revolution.

To do the second: You need a Constitution that other nations won't think is TOO nuts, a government that can effectively pull the various factions of the new nation together into some kind of accord, and enough prickly and sticky bits on the boarder to keep the close-by governments from becoming too acquisitive during all the hubbub.

Well - that's my idea, anyhow, and as such, I don't think you can WIN a revolution with any kind of weapon.

That's right. I said it. You can't win a revolution with personally owned small arms.

HOWEVER!

Given a properly tyrannical government and some guys with a clear and appealing vision who have a public voice, you sure as heck can START one with personally owned small arms.

Also, a military secures any kind of a state. EVERYBODY has a responsibility to secure a FREE state. Remember that back around 1774, the soon-to-be United States had a militia. It was called, "The British Army." This responsibility is reflected in the Indiana State constitution, in that everyone 18 years or older, unless otherwise exempted from carrying weapons, is in the state militia.

What does your state constitution say?

Just my 2¢ worth.

 

[Drudgewire]

Kennedy soon joined in, saying the reference in the Amendment to the arms needs of the militia was simply a reaffirmation of the importance of having a militia (as guaranteed by other provisions in the Constitution), but then the Framers went further an added an entirely separate right, “a right to bear arms.” Scalia shortly got involved, saying “why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past…by taking away the people’s weapons…the two clauses go together beautifully: Since we need a militia, the right to keep and bear arms shall not be infringed.”

Well, that's two. Three more baby!!!

 

[Brown]

Oral argument transcript, from the Supreme Court web site.