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Lumpy
11-09-2009, 09:52 PM
In the trainwreck thread started by haymarketmartyr about "Second Amendment Heroes" http://boards.straightdope.com/sdmb/showthread.php?t=539050 , the inevitable debate about the meaning of "militia" has arisen. In what is referred to by some as the "collectivist" interpretation of the Second Amendment, the argument goes that the Second Amendment is effectively a dead letter, that it refers to an institution no longer extant in American society. I believe that based on the text of the Constitution and its amendments, that this interpretation is flawed. That the Second is meant to protect a personal and individual right to "keep and bear" (own and carry) firearms. In this thread, I will explain my reasons for thinking so. Since I am hardly a legal expert or a student of constitutional law, I would welcome any honest criticism based either on facts or on established legal principles that I might be mistaken about. If you disagree, please try to post something that might be considered a logical argument beyond asserting that it is self-evident that I am wrong.

When the present Constitution was first adopted, replacing the older Articles of Confederation and enlarging the authority of the Federal government, several provisions of the new constitution established the broad principle that the Federal government was to have a monopoly on foreign relations; especially, that the Federal government alone would determine whether or not the States were conducting armed hostilities with a foreign power. To this end Article One of the Constitution lists the powers granted to the federal congress, and Section Ten of Article One details the sovereign powers that the state governments agreed to formally cede to the federal congress. The third clause of Section Ten reads:No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.So as hypothetical examples, it would be absolutely forbidden for the State of Texas to maintain an army with which it conducted drug or immigration raids across the Mexican border; or for the State of Florida to have its own naval policy with regards to Cuba; or for any of the northern states to invade or threaten Canada. The state governments agreed to cede not just the right, but the actual capacity, to independently prosecute a foreign war- there would be one national army and one national navy.

The first ten amendments to the Constitution, submitted and ratified as a body known as the "Bill of Rights", came about because of fears that the new Constitution made the federal government too strong. Even though in principle the Federal government had no powers no explicity granted it, ratification of the Constitution became contingent on a statement of things that the federal government would be explicitly forbidden to do. Among these is the Second Amendment: 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.What seems signficant to me is this: if, under Article One Section Ten the states are forbidden from keeping troops in peacetime, then just what exactly is the Second Amendment promising, as either a check against federal power or as a guarantee of liberty? Specifically, if the Second Amendment talks about something called a "militia" in the context of keeping and bearing arms, then just what exactly is the difference between a "militia" and "troops"?

AFAIK, in every document contemporary with the Second Amendment that mentions the subject of the militia, such as the Federalist Papers #29, or the mention of the militia in the various state constitutions, the answer is clear and unambiguous: the militia is synonymous with the people, the mass of the populace, armed with their own privately-held weapons; the posse comitatus that in times of emergency can be called to the common defense. Many people are under the impression that the Second Amendment protects a state government's authority to possess armed forces, while leaving open the possibility that private citizens can be completely disarmed. I submit that the original intent of the Second is exactly the opposite- that in the face of the fact that under Article One Section Ten the states could be forbidden from possessing any standing, professional armed force, that an armed citizenry was meant to be the guarantee of last resort.

"But that's ridiculous!" someone shouts from the audience "you're claiming that Congress could forbid cities and states from having police!" Actually, that speaks to my point. Civil police forces in fact are protected from Article One Section Ten by the Second Amendment, but only so long as they in fact are civil; that is, to the extent that modern state and municipal constabularies are simply a formalization of the older institution of the posse comitatus, where deputized citizens would aid in upholding the law. That even though modern police consist of persons who have elected to remain permanently sworn to public duty, that they are still not fundamentally distinct from any citizen in good standing who might hypothetically be charged with the duty of enforcing the law. But if laws are passed which ban the civil possession of firearms by the general public, but which carve out a special exception for police officers, the practical effect of that is to elevate the police to the status of an elite armed branch of the government, having a privilege not afforded the common citizen- troops in other words.

I also believe that there is further support for the interpretation of the militia that I have offered within the Constitution itself. If the word "militia" referred solely to a regimented body of militarily trained persons, organized and commanded by the state, then by what authority can the Federal government draft civilians into the army in time of war? That authority is universally held to derive from Article One Section Eight of the Constitution, which states that to execute the laws of the union, suppress insurrections and repel invasions, congress may call forth "the militia". But if we were to adopt the collectivist interpretation of the Second Amendment and carry it to its ultimate logical conclusion, that conclusion would be that Article One Section Eight simply authorizes Congress to federalize such military units as the states happen to have on hand- NOT to conscript raw, untrained civilians into the Army. To maintain that the word "militia" means one thing in our Constitution when determining who may be in possession of a firearm, and means another thing when determining who may be summoned to federal military service, would reduce the Second Amendment to a travesty; the only meaning left to the Second would be "you have the right to be drafted, and have the Army issue you a service arm".

Finally, the argument could be made that even if the militia is in fact synonymous with the people, that it would still be within a state's authority to declare that it is only lawful to keep and bear arms while actively serving in either the militia or a posse comitatus- in modern parlance, while either serving in the military or as a sworn police officer. My response to that is that that raises the entire subject of incorporation- the application of the Bill of Rights to the states. As originally written, the Constitution simply presumes that democracy flows from the states, since that's the level at which popular suffrage took place. Indeed, until the practice was banned by the Thirteenth Amendment, it was held to be within a state government's purview to respect and uphold the institution of chattel slavery. But ever since the constitutional cataclysm of the Civil War, the courts have struggled to define the meaning and scope of the Fourteenth Amendment, offering a federal guarantee of liberty and equal rights to all US citizens. Whenever a constitutional question could be reduced in its essence to the question "can the states be tyrannies where the federal government cannot?", the answer in modern times has increasingly been "no". The Second Amendment says little but implies much. The naked letter of the Second is simply that the Federal government cannot disarm the citizenry. But if like the other provisions of the Bill of Rights, the Second is taken to be instructive as to the definition of liberty given in the Fourteenth Amendment, then the import of the Second is clear: that any government which would forbid its citizens from possessing weapons, which would mandate that the populace has to remain helpless against and dependent upon the arms of the state, is a tyranny.

Some references:
Article One of the Constitution of the United States of America (http://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America#Article_I). See Section Eight, clauses fifteen and sixteen for congressional authority over the militia; see Section Ten, clause three for prohibition on state armies and navies.

The Federalist #29 (http://www.constitution.org/fed/federa29.htm), subtitled "Concerning the Militia" by Alexander Hamilton.

ITR champion
11-10-2009, 09:12 AM
I don't think there's any point in disputing your interpretation of the second amendment. I think you're right about what the founders meant when they wrote it. It's just that the word of the founders isn't particularly helpful to the victims of crime today. In the 18th century, "arms" would mean a musket or pistol that could fire once, with limited range and accuracy, and then required a lengthy reloading process. Hence there was no danger of a single person going on a rampage and killing thirteen persons. Now, things are different. The best solution would be a new amendment that cancels the Second, but there's not much real possibility there, so a reasonable solution would simply be to ignore the original meaning of the Second just as we've learned to ignore most of the others in the Bill of Rights.

Happy Fun Ball
11-10-2009, 06:04 PM
I don't think there's any point in disputing your interpretation of the second amendment. I think you're right about what the founders meant when they wrote it. <snip>
I agree with you in that I think he is right, but I find the rest of your argument specious. For brevity's sake, I have divided your post into parts, I hope you don't mind...
It's just that the word of the founders isn't particularly helpful to the victims of crime today.This may be true, but the founders weren't concerned with the victimization of citizens by other citizens, they were worried about the victimization of citizens by their government. In the first case, relief could be obtained by the just application of law, but in the latter case there is no avenue for justice short of revolution.

In the 18th century, "arms" would mean a musket or pistol that could fire once, with limited range and accuracy, and then required a lengthy reloading process. Hence there was no danger of a single person going on a rampage and killing thirteen persons.This is a red herring. First off, it's (http://en.wikipedia.org/wiki/Osaka_school_massacre) possible (http://en.wikipedia.org/wiki/Nic_Diederichs_Technical_High_School_slashing) to (http://en.wikipedia.org/wiki/Akihabara_massacre) kill (http://en.wikipedia.org/wiki/Nonhyeon-dong_massacre) a (http://en.wikipedia.org/wiki/Dendermonde_nursery_attack) bunch (http://en.wikipedia.org/wiki/Julio_Gonz%C3%A1lez_(arsonist)) of (http://en.wikipedia.org/wiki/Gameel_Al-Batouti) people (http://en.wikipedia.org/wiki/Olga_Hepnarov%C3%A1) without (http://www.blogofdeath.com/archives/001299.html) using (http://www.nytimes.com/2001/03/28/world/beijing-publishes-detailed-account-of-bombings.html?scp=3&sq=shijiazhuang+explosion&st=nyt) a (http://en.wikipedia.org/wiki/Oklahoma_City_bombing) gun (http://en.wikipedia.org/wiki/September_11,_2001_attacks). Second, even now it is possible to go on a killing spree using only 1 shot per victim and taking a long time to reload (http://en.wikipedia.org/wiki/Beltway_sniper_attacks).

Now, things are different. The best solution would be a new amendment that cancels the Second, <snip>How are things different? It is still possible for a government to brutalize its citizenry. People murdered each other in the 1700s, and when they weren't using guns, they were using bombs and knives and swords. People will always kill each other, and making guns illegal is not going to stop it (as demonstrated by those links above detailing killing sprees by people with knives in countries where guns are illegal). But if the police, or the federal government for that matter, decide to start rounding up ethnic groups, I am grateful the the founders gave us a method of defending ourselves.

<snip> but there's not much real possibility there, so a reasonable solution would simply be to ignore the original meaning of the Second just as we've learned to ignore most of the others in the Bill of Rights.Say what? How do we ignore the meaning of the other amendments in the bill of rights? I thought we were doing pretty well with the possible exception of the 9th and 10th. What are you thinking of?





For the record: I don't own a gun and I vote for Democrats.

Sage Rat
11-10-2009, 07:13 PM
This may be true, but the founders weren't concerned with the victimization of citizens by other citizens, they were worried about the victimization of citizens by their government. In the first case, relief could be obtained by the just application of law, but in the latter case there is no avenue for justice short of revolution.

Since someone is going to come in and say that the general populace could never reasonably fight against the government, I'm just going to link to another thread currently in GD:

http://boards.straightdope.com/sdmb/showthread.php?t=539218

Chimera
11-10-2009, 07:54 PM
As I always say, if "the right of the People" in the second amendment only applies to government organized militia, then "the right of the people to peacably assemble" in the first amendment could be interpretted by totalitarian government as only applying to state sanctioned political groups.

It either means everyone, or it means nothing, in which case the Constitution is dead.

hobscrk777
11-10-2009, 08:41 PM
Lumpy, your OP was quite organized, lucid, and well-planned. I agree with much of what you have to say; in fact, I find that my stance has softened slightly towards gun rights recently. However, I disagree with your final paragraph.

Finally, the argument could be made that even if the militia is in fact synonymous with the people, that it would still be within a state's authority to declare that it is only lawful to keep and bear arms while actively serving in either the militia or a posse comitatus- in modern parlance, while either serving in the military or as a sworn police officer.

It seems to me that the founders must have had a reason for including the dependent clause, "A well regulated militia being necessary to the security of a free State..." must have been intentional. That is, my interpretation is that it was included because the Founders meant for the amendment to apply to those who were part of a well-regulated militia-or at the very least trained and qualified-and not someone so unskilled in incapable that they pose a harm to themselves and others.

Let me draw a parallel to the First Amendment. This is perhaps the most dear of all amendments to Americans, and yet it has restrictions of its own. It is quite unequivocally accepted that citizens have the right to peaceably assemble, protest, write inflammatory material, etc. Almost any attempt by the government to breach these freedoms is grievous indeed.

Consider pornography, legal as a form of free speech. However, child pornography is certainly illegal, and with good reason. It traumatizes and exploits
its subjects, who can only be called victims. While the government has no business restricting or limiting pornography between consenting adults, it has an obvious interest in curtailing child pornography. My analogy to the Second Amendment is this: Just as some forms of speech are considered so heinous as to be outside the realm of permissible, so too are some forms of gun ownership so heinous as to be beyond acceptable. That is to say, certain people (the mentally inadequate, the untrained, the unlicensed, those with no regard for safety) should not be permitted to own firearms. Personally, I'm in favor of regular competency tests, as well as an oath to ensure one's guns remain securely locked up when not in use. Should a gun be involved in a crime, even if the owner is not, the owner would still face stiff penalties,

hobscrk777
11-10-2009, 08:43 PM
As I always say, if "the right of the People" in the second amendment only applies to government organized militia, then "the right of the people to peacably assemble" in the first amendment could be interpretted by totalitarian government as only applying to state sanctioned political groups.

It either means everyone, or it means nothing, in which case the Constitution is dead.

If the First Amendment read, "State-sanctioned political groups being necessary to the liberty of a free state,..." I would agree with you. However, neither of these are the case.

Lumpy
11-10-2009, 09:20 PM
ITR champion, if I understand you correctly, your position might be paraphrased as "Yes, the Second Amendment does protect a personal right to keep and bear firearms; but thanks to modern technology, if we fully upheld the Second Amendment, society would collapse. So barring an amendment to the Constitution, our only choice is to ignore the Second". In another thread I conceded as much in the hypothetical case of being able to build nuclear-powered rayguns. While it's debatable whether the premise that we've effectively reached that point is true, it's certainly an honest and respectable position. Thank you.

hobscrk777, your points are well taken too. Part of the difficulty is that at the time the Second Amendment was passed, the people and the militia were synonymous; the Founders were inspired by both ancient examples of citizen-soldiers such as the Militia of the Roman Republic and more modern examles such as the Swiss, and hoped that the new American republic would follow the same pattern. The Constitution and documents such as the Federalist #29 are confusing because they speak of the Militia both as an organized military institution AND as simply the mass of the populace, sometimes in the same sentence.

As to your points on qualification to bear arms, I don't believe that anyone seriously proposes that the Second Amendment (or any of the other articles of the Bill of Rights) are meant to declare a boundless libertarian immunity from government authority. Cecil himself said in his article about the Second Amendment (http://www.straightdope.com/columns/read/1114/what-does-the-right-to-bear-arms-really-mean) that regulation is fine, formal or de facto banning isn't. The current social debate is on just how far regulation can go, which is why many states have in recent years passed explicit "shall issue" laws regarding carry permits.

Lumpy
11-10-2009, 09:33 PM
Oh, also in case there was some confusion, I was playing Devil's Advocate when I said Finally, the argument could be made that even if the militia is in fact synonymous with the people, that it would still be within a state's authority to declare that it is only lawful to keep and bear arms while actively serving in either the militia or a posse comitatus- in modern parlance, while either serving in the military or as a sworn police officer. In other words, I wanted to raise the possible counter to my own arguments for the sake of addressing it.

Airman Doors, USAF
11-10-2009, 09:43 PM
Why I believe the Second Amendment protects a personal right to firearms: The Supreme Court said it does (http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller). Of course, I've always believed it, but now I no longer have to defend it, it's a legal fact.

I believe McDonald v. Chicago (http://en.wikipedia.org/wiki/McDonald_v._Chicago) will almost certainly close the book on this argument when the Supreme Court incorporates the Second Amendment. I'd be stunned if they turned their backs on a decision made such a short time ago. Mostly I'm curious about whether they will restore the Privileges and Immunities Clause of the 14th Amendment or if they will use the Due Process Clause as the basis of their decision.

thelurkinghorror
11-10-2009, 10:38 PM
As I always say, if "the right of the People" in the second amendment only applies to government organized militia, then "the right of the people to peacably assemble" in the first amendment could be interpretted by totalitarian government as only applying to state sanctioned political groups.

It either means everyone, or it means nothing, in which case the Constitution is dead.

Yes, if it offered a collective right, then why doesn't anyone say that amendments 1 and 3-10 offer no individual but only a collective right.

I don't know what everybody means when they suggest a collective right, but it seems to encourage survivalist militia-types, which I bet is not the POV they intended.

Little Nemo
11-11-2009, 01:03 AM
I believe the Second Amendment protects a personal right to own firearms because that's the plain reading of the text.

That said, I think this is a bad idea based on outmoded technology. But I feel that as long as the Second Amendment exists it should be followed. We should address the problems of gun ownership be repealing the Second Amendment not ignoring it.

And while I think personal gun ownership is a right, I don't think it's an absolute right. No other constitutional right is held to be absolute - why should gun ownership be the exception? There is room in the Constitution for some legitimate limit on firearm ownership just as there are limits on speech or assembly or the exercise of religion.

Airman Doors, USAF
11-11-2009, 06:19 AM
And while I think personal gun ownership is a right, I don't think it's an absolute right. No other constitutional right is held to be absolute - why should gun ownership be the exception? There is room in the Constitution for some legitimate limit on firearm ownership just as there are limits on speech or assembly or the exercise of religion.


There (http://en.wikipedia.org/wiki/National_Firearms_Act) are (http://en.wikipedia.org/wiki/Gun_Control_Act) limits (http://en.wikipedia.org/wiki/FOPA#Machine_gun_ban_.28The_Hughes_Amendment.29).

Somehow these always seem to be forgotten (or ignored) when this topic comes up. And those are just Federal limits. States are free to implement their own restrictions, and some (http://en.wikipedia.org/wiki/.50_Caliber_BMG_Regulation_Act_of_2004) do (http://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban#Assault_weapons_bans_in_other_states).

There are far more restrictions on the Second Amendment than there are on any of the other rights conferred by the Bill of Rights. After all this time, as many times as we have explained this in threads like this, it is incomprehensible that anybody could be unaware of this.

haymarketmartyr
11-11-2009, 08:14 AM
from Airman Doors

There are far more restrictions on the Second Amendment than there are on any of the other rights conferred by the Bill of Rights. After all this time, as many times as we have explained this in threads like this, it is incomprehensible that anybody could be unaware of this.

I am sure you wrote that statement with a straight face. However, I find it incomprehensible that those of you who make us the "we" here who have indeed "explained this in threads like this" do not understand the belief and feeling that millions of Americans have that

***our nations is simply awash in guns and that is a danger in and of itself
*** many guns go far beyond the power necessary for simple self defense protection or hunting
*** it is too easy for people to get guns especially through the gun and knife show route
*** the NRA wields excessive political power making it nearly impossible to do anything about guns
*** too many innocent people pay the highest price - their lives - for others to own guns
*** the so called controls and restrictions that you claim are there are simply ineffective and weak

Regarding your arguments about the wording of the Second Amendment - if the Amendment had only the second clause without the first, much of what you say about its meaning would be true. But that is not reality.

MILITIA is one word and has one meaning. PEOPLE is a different word and has a different meaning. You claim that - in 1789 - they were virtually one and the same.

So every one of the "people" was in the militia? Every single man in the nation? Women? Slaves? The old? The infirm? The cowards? The British supporters and sympathizers? Quakers?

Why can a nation like Canada - which is about as close to the USA as any other in many ways - have both gun ownership but not all the attendant problems with guns that we have here?

Maybe we should take a hard long look at how Canada handles the issue and what their laws are.

I see nothing wrong with most adults owning a pistol for home or business protection. I see nothing wrong with most adults owning a rifle or shotgun for hunting or protection.

I see a great deal wrong with somebody needing a weapon which has a magazine that can carry twenty, thirty or more rounds that can be fired in mere seconds.

Labrador Deceiver
11-11-2009, 08:37 AM
from Airman Doors

*** many guns go far beyond the power necessary for simple self defense protection or hunting


Which ones?

JXJohns
11-11-2009, 09:09 AM
... I see nothing wrong with most adults owning a pistol for home or business protection. I see nothing wrong with most adults owning a rifle or shotgun for hunting or protection.

I see a great deal wrong with somebody needing a weapon which has a magazine that can carry twenty, thirty or more rounds that can be fired in mere seconds.

These two things are not exclusive of each other. Once again, I'd be happy to tell you why, but I'd sure hate to confuse you. :rolleyes:

Airman Doors, USAF
11-11-2009, 09:32 AM
However, I find it incomprehensible that those of you who make us the "we" here who have indeed "explained this in threads like this" do not understand the belief and feeling that millions of Americans have that...*

This thread is probably not for you, because I'm not even going to pretend to deal with your beliefs and feelings. This thread is going to be wall-to-wall facts from me, something I know you have trouble with due to our attempts to "trick" you with them.

Now, if you would like to refute what I actually said, please do so, with actual facts. Otherwise, why don't you stick to the other thread that you have hijacked with your "feelings"?



*bolding and truncation by me

haymarketmartyr
11-11-2009, 10:45 AM
USAF - your "facts' are often your skewed interpretation and skewed definitions of words based on your own "beliefs and feelings". Your "facts" are often your particular skewed interpretation of history based on your own "beliefs and feelings". Your "facts" are often a highly selective picking and choosing of which data you opt to recognize and which data you cannot be bothered with because it disturbs your own "beliefs and feelings".

So please, get off your sanctimonious high horse and quit pretending you are some sort of Mr. Spock processing pure information without regard to their own personal beliefs or feelings. People have already posted pointing out to you how your "facts" in your opening post are not quite what you believe them to be. So please quit pretending you are holier than thou.

You seem to forget than in a representative democracy such as ours, every citizen is free to make up their mind about policy and candidates based on anything they want to. That includes their own beliefs, feelings, and values as well as any factual information they themselves decide is important to them.

Are you under the impression that we are some sort of robot hybrids devoid of anything but pure "facts"?

Why is it that when I try to relate how many Americans feel about guns to the pro-gun crowd here all you can do is respond with negativity?

Again I ask, why can't we take a look at the system Canada has which seems to work for both gun owners as well as the much larger general public and get some ideas from that? Or do you really not want any ideas other than your own "beliefs and feelings"?

Marley23
11-11-2009, 11:12 AM
haymarketmartyr, I think you're already posting about most of these issues in your Second Amendment Heroes (http://boards.straightdope.com/sdmb/showthread.php?t=539050) thread. (I know you responded to the OP in part of your first post.) Please try to keep these topics separate: this one's about the Second Amendment and whether or not it protects a personal right to firearms.

Fuzzy Dunlop
11-11-2009, 11:25 AM
Which ones?

The M1A1 tank, M61 Vulcan and M109 Howitzer are all arms by any remotely honest definition of the word arms, and as such as clearly and unequivocally may be owned by private U.S. citizens.

Although, to be fair, I hunt turkey in my tank around this time every year getting ready for Thanksgiving.

Whack-a-Mole
11-11-2009, 11:51 AM
This is a red herring. First off, it's (http://en.wikipedia.org/wiki/Osaka_school_massacre) possible (http://en.wikipedia.org/wiki/Nic_Diederichs_Technical_High_School_slashing) to (http://en.wikipedia.org/wiki/Akihabara_massacre) kill (http://en.wikipedia.org/wiki/Nonhyeon-dong_massacre) a (http://en.wikipedia.org/wiki/Dendermonde_nursery_attack) bunch (http://en.wikipedia.org/wiki/Julio_Gonz%C3%A1lez_(arsonist)) of (http://en.wikipedia.org/wiki/Gameel_Al-Batouti) people (http://en.wikipedia.org/wiki/Olga_Hepnarov%C3%A1) without (http://www.blogofdeath.com/archives/001299.html) using (http://www.nytimes.com/2001/03/28/world/beijing-publishes-detailed-account-of-bombings.html?scp=3&sq=shijiazhuang+explosion&st=nyt) a (http://en.wikipedia.org/wiki/Oklahoma_City_bombing) gun (http://en.wikipedia.org/wiki/September_11,_2001_attacks). Second, even now it is possible to go on a killing spree using only 1 shot per victim and taking a long time to reload (http://en.wikipedia.org/wiki/Beltway_sniper_attacks).


That tells us nothing and is a red herring in its own right.

Of course people can kill people without guns. Been done for pretty much all of human history. A pen, a skillet, your bare hands...most anything can be a weapon.

What this obscures is that a gun is the most efficient means of killing people. If it weren't our soldiers would be carrying frying pans to bash people with or something.

Making killing simpler and more approachable has a predictable effect that more people will opt for using one. I do not think it is a stretch to suppose someone might have the gumption to use a gun and go after someone but would not try if they had to use a knife and get close and personal (obviously some will but then some won't).

Murder Victims—Circumstances and Weapons Used or Cause of
Death: 2000 to 2006

Total firearms (2006) - 10,177

Total Everything Else (2006) - 4,813 [I added up the rest listed]

SOURCE: http://www.census.gov/compendia/statab/tables/09s0299.pdf (PDF)


Doubtless some of those that used firearms would have used another method if a gun was not available to them but I seriously doubt all or even most would have.

Airman Doors, USAF
11-11-2009, 12:30 PM
The M1A1 tank, M61 Vulcan and M109 Howitzer are all arms by any remotely honest definition of the word arms, and as such as clearly and unequivocally may be owned by private U.S. citizens.

Although, to be fair, I hunt turkey in my tank around this time every year getting ready for Thanksgiving.

No, they cannot. The National Firearms Act of 1934 has deemed each of those "Destructive Devices", and as such cannot be owned by civilians in a functional form without going through the process required for NFA weapons. The M61 Vulcan is additionally considered an automatic weapon, and as such cannot be registered if it was not made before March of 1986.

Of course, all of this assumes that the manufacturers and/or government would be willing to sell any of them to you intact AND that the local Chief Law Enforcement Officer would sign off on the purchase, neither of which is going to happen. They might be OK with a demilitarized, non-functional weapon of this type being used for a memorial, but they would almost certainly not consent to a private citizen owning any of the above.

Last, I'd like to see a cite for someone with a weapon of this type that they own committing a crime with them. Just one. You won't find one, mind you, but there must be something I'm missing because it is continually brought up. This does not count, by the way, the tank was stolen from an armory and grand theft is already a crime in and of itself. (http://en.wikipedia.org/wiki/Shawn_Nelson)

So, now that we have the ridiculous examples out of the way, perhaps we can do something more constructive than say "OOH OOH NUKES ARE ARMS!!!" The rhetoric that this topic draws is pointless, inflammatory, and it detracts from anything that might be considered constructive.

Fuzzy Dunlop
11-11-2009, 12:33 PM
So, now that we have the ridiculous examples out of the way, perhaps we can do something more constructive than say "OOH OOH NUKES ARE ARMS!!!" The rhetoric that this topic draws is pointless, inflammatory, and it detracts from anything that might be considered constructive.

I noticed you didn't mention anything about why those laws are constitutional given that the plain reading of the 2nd amendment clearly states that the right of the people to keep and bear arms shall not be infringed. Are you saying they're not arms?

Little Nemo
11-11-2009, 12:36 PM
There are limits.

Somehow these always seem to be forgotten (or ignored) when this topic comes up. And those are just Federal limits. States are free to implement their own restrictions, and some do.

There are far more restrictions on the Second Amendment than there are on any of the other rights conferred by the Bill of Rights. After all this time, as many times as we have explained this in threads like this, it is incomprehensible that anybody could be unaware of this.I am aware of this. I'm also aware that there are people who loudly oppose these limits and claim that firearm ownership is an absolute right which should not have any limits.

Randy Seltzer
11-11-2009, 12:37 PM
Some of the responses to the OP exemplify a fundamental difficulty in this debate: there are really two questions here, and it is hard to separate them:

1) Does the Constitution guarantee a private right to gun ownership?
2) Is a private right to gun ownership a good idea?

In my experience, everyone tends to answer both questions the same way. That is, either you believe 1) the 2nd Amendment prevents the government from making any laws depriving citizens of firearms, and gun ownership is an important right in civilized society OR 2) the 2nd Amendment should be read to allow the government to limit gun ownership to a very small subset of the populace, and letting people own firearms is a stupid and dangerous endeavor. Very few people split the questions. Nobody says "Well I think anyone should be allowed to own a gun, but unfortunately, the 2nd Amendment prevents this," or "actually, the 2nd Amendment is crystal clear that we must be allowed guns, which is a shame, because gun ownership is a plague on society."

The OP here has tried to start a debate on Question #1, but inevitably, people come in and start to argue question #2.

I'm one of the rare people who split the questions. I believe the OP hit the nail on the head with Question #1 -- it is ridiculous to try to twist the 2nd Amendment to mean the opposite of what it says. But I firmly believe that the answer to Question #2 is "no." A universal right to gun ownership is bad policy.

There are two solutions that I can see. First, a new Amendment could be ratified that repealed the 2nd. This is not foreseeable. Second, the SCOTUS could emphatically not incorporate the 2nd Amendment to the states through the 14th Amendment. This makes the most sense to me. The 2nd Amendment (like all of the first eight Amendments) originated to protect the people of the states from the Federal government. Not, as the OP suggests, to define the limits of a non-tyrannical government, and not to protect the people from their state governments. I see no reason why the 10th Amendment should not be applied here, and the decision whether to allow citizens to own guns be left to the individual states. Let it be like the grand jury: an unincorporated Federal right.

Little Nemo
11-11-2009, 12:42 PM
This is a red herring. First off, it's possible to kill a bunch of people without using a gun. Second, even now it is possible to go on a killing spree using only 1 shot per victim and taking a long time to reload.A red herring indeed. It's like claiming there's no point in having speed limits because some people have accidents when they're driving 10 mph. True - but people driving 100 mph have a lot more accidents. And people with guns are a lot more dangerous than people with frying pans.

Airman Doors, USAF
11-11-2009, 12:46 PM
I noticed you didn't mention anything about why those laws are constitutional given that the plain reading of the 2nd amendment clearly states that the right of the people to keep and bear arms shall not be infringed. Are you saying they're not arms?

I am saying that the Supreme Court of the United States has deemed them to be weapons that the citizenry should not be allowed access to. Unless you would care to argue that Judicial Review is itself illegal, those laws have been deemed legal and have been in place for a long enough time that the legal precept of laches (http://en.wikipedia.org/wiki/Laches_%28equity%29) may well apply. Those are established laws and are well nigh unassailable.

Again, it is absurd to say that the 2nd Amendment has no limits. It has tons of them.

Little Nemo
11-11-2009, 12:50 PM
There are two solutions that I can see. First, a new Amendment could be ratified that repealed the 2nd. This is not foreseeable. Second, the SCOTUS could emphatically not incorporate the 2nd Amendment to the states through the 14th Amendment. This makes the most sense to me. The 2nd Amendment (like all of the first eight Amendments) originated to protect the people of the states from the Federal government. Not, as the OP suggests, to define the limits of a non-tyrannical government, and not to protect the people from their state governments. I see no reason why the 10th Amendment should not be applied here, and the decision whether to allow citizens to own guns be left to the individual states. Let it be like the grand jury: an unincorporated Federal right.I'd oppose this. There's no reason to treat the constitutional right of firearm ownership any differently than any other personal right. (Grand juries and the setting of fines are issues directly involved with the court system so it makes sense to keep them unincorporated and let each state jurisdiction set its own rules.) If the 14th Amendment incorporates every other personal right, it should incorporate the 2nd Amendment.

Fuzzy Dunlop
11-11-2009, 12:59 PM
Again, it is absurd to say that the 2nd Amendment has no limits. It has tons of them.

It's totally silly to say you can't debate whether a decision was correct or not simply because it's been made. That's especially true of a supreme court decision that can be changed at any time merely by redeciding the issue in a new case.

Even if you were to accept that the Constitution permits the government to abrogate its citizens right to keep and bear certain arms, how do you decide which ones? Apparently the 2nd amendment is no guide, since it says all arms are allowed.

It sounds like it would easily pass constitutional muster to ban all firearms if we just pass a law saying they are weapons of destruction. Only knives and sticks will be allowed. Why is that any more or less absurd of a limit, from a constitutional perspective, than what we've got now?

Airman Doors, USAF
11-11-2009, 01:02 PM
I am aware of this. I'm also aware that there are people who loudly oppose these limits and claim that firearm ownership is an absolute right which should not have any limits.

Those people are wrong. The Supreme Court, even if they incorporate the 2nd Amendment, will not overturn NFA 1934 or GCA 1968. They might overturn the Hughes Amendment, but I wouldn't bet on that.

The people who argue for no controls whatsoever live in a different world than you and I. There is no need to hold them up as examples of mainstream thought. They are not. The debate is not about limits, it's about what those limits should be. Those people are no more credible than those who call for a complete gun ban.

Oregon sunshine
11-11-2009, 01:07 PM
Why go through all the mental gymnastics? It's spelled out in plain English:
the right of the People to keep and bear arms shall not be infringed.
Pretty much a no-brainer.

Randy Seltzer
11-11-2009, 01:11 PM
I'd oppose this. There's no reason to treat the constitutional right of firearm ownership any differently than any other personal right. (Grand juries and the setting of fines are issues directly involved with the court system so it makes sense to keep them unincorporated and let each state jurisdiction set its own rules.) If the 14th Amendment incorporates every other personal right, it should incorporate the 2nd Amendment.Yes, the right to a grand jury is involved with the courts, but what makes you think it's not a personal right?

Airman Doors, USAF
11-11-2009, 01:15 PM
It's totally silly to say you can't debate whether a decision was correct or not simply because it's been made. That's especially true of a supreme court decision that can be changed at any time merely by redeciding the issue in a new case.

The Supreme Court has had ample time and opportunity to toss Miller. They have not. It is not going to change, they are not going to reverse it.

Even if you were to accept that the Constitution permits the government to abrogate its citizens right to keep and bear certain arms, how do you decide which ones? Apparently the 2nd amendment is no guide, since it says all arms are allowed.

This is a bit trickier, and a good question. As it stands now, it is more about what laws Congress can pass. A prime example of this was the 1993 Assault Weapons Ban. That sunsetted because there was no evidence that it accomplished anything. It probably will not be restored. Somewhere down the road a new law will be suggested, it will be adopted, and it will probably face scrutiny in the courts. That's the way it is, and that's the way it should be.

It sounds like it would easily pass constitutional muster to ban all firearms if we just pass a law saying they are weapons of destruction. Only knives and sticks will be allowed. Why is that any more or less absurd of a limit, from a constitutional perspective, than what we've got now?

No. Given that there is a law that already describes certain weapons as "Destructive Devices", attempting to backdoor the Constitution by classifying all weapons as DDs could never stand scrutiny. There's far too much history against something like that for it to stand up.

Yes, the right to a grand jury is involved with the courts, but what makes you think it's not a personal right?

The 7th Amendment has not yet been incorporated. (http://en.wikipedia.org/wiki/Seventh_Amendment_to_the_United_States_Constitution)

Randy Seltzer
11-11-2009, 01:19 PM
USAF - that's what I'm saying. The 2nd Amendment could be treated like the 7th.

Airman Doors, USAF
11-11-2009, 01:21 PM
Why go through all the mental gymnastics? It's spelled out in plain English:

Pretty much a no-brainer.

It's not a no-brainer. We have limits on speech (http://en.wikipedia.org/wiki/Brandenburg_v._Ohio), limits on religion (http://en.wikipedia.org/wiki/Separation_of_church_and_state_in_the_United_States#Supreme_Court_since_1947), limits on unreasonable search and seizure (http://en.wikipedia.org/wiki/Terry_v._Ohio)... we have limits on all of our rights. Why should the 2nd be unique in that regard? You have a right to keep and bear arms, and the government, for better or worse, has an interest in what arms those might be.

haymarketmartyr
11-11-2009, 01:24 PM
Oregon Sunshine offers

Why go through all the mental gymnastics? It's spelled out in plain English:
Quote:
Originally Posted by The Constitution
the right of the People to keep and bear arms shall not be infringed.
Pretty much a no-brainer.


I would agree. Quoting only a selected portion of the one sentence Second Amendment while conveniently the rest of the sentence is truly a no brainer.

Airman Doors, USAF
11-11-2009, 01:24 PM
USAF - that's what I'm saying. The 2nd Amendment could be treated like the 7th.

It currently is. If the Supremes overturn the Slaughter-House Cases (http://en.wikipedia.org/wiki/Slaughterhouse_Cases) like Gura wants them to do in McDonald v. Chicago (http://en.wikipedia.org/wiki/McDonald_v._Chicago), the Bill of Rights will be incorporated in its entirety. As it should be. It is the Bill of Rights, after all.

whole bean
11-11-2009, 01:59 PM
Given that there is a law that already describes certain weapons as "Destructive Devices", attempting to backdoor the Constitution by classifying all weapons as DDs could never stand scrutiny.

Are you using "scrutiny" as a term of art here, or are you just saying you don't think the court would buy the new definition?

What would be the reasoning behind the distinction between what has already been classified as "Destructive Devices" and shotgun. If you answer this, please actually give the legal reasoning for making the distinction (i.e., how a law banning private owenrship of destructive devices (as written) passes constitutional muster, whereas an identicial law but for the inclusion of shotguns in the definition of "Destructive Device" would not).

whole bean
11-11-2009, 02:15 PM
I am saying that the Supreme Court of the United States has deemed them to be weapons that the citizenry should not be allowed access to. Unless you would care to argue that Judicial Review is itself illegal, those laws have been deemed legal and have been in place for a long enough time that the legal precept of laches (http://en.wikipedia.org/wiki/Laches_%28equity%29) may well apply. Those are established laws and are well nigh unassailable.

Again, it is absurd to say that the 2nd Amendment has no limits. It has tons of them.
First, he's not asking whether there has been a ruling, he's asking you to defend the rationale behiond that ruling given the plain reading of the Amendment.

Second, how would laches apply? In what context? I get the idea you might be outside of your wheelhouse here, at least with respect to the law.

Finally, (though this seems obvious) no law is unassailable, always being subject to attack from the legislative process and judicial review.

Airman Doors, USAF
11-11-2009, 04:26 PM
Are you using "scrutiny" as a term of art here, or are you just saying you don't think the court would buy the new definition?

I don't think the court would buy the new definition.

What would be the reasoning behind the distinction between what has already been classified as "Destructive Devices" and shotgun. If you answer this, please actually give the legal reasoning for making the distinction (i.e., how a law banning private owenrship of destructive devices (as written) passes constitutional muster, whereas an identicial law but for the inclusion of shotguns in the definition of "Destructive Device" would not).

The National Firearms Act of 1934 has distinct definitions. A legal shotgun has a precise definition and is not characterized as a "Destructive Device". To change that characterization, re-categorizing it as a Destructive Device, would be a brazen attempt to change what has been enshrined in law for over 80 years. If that were the intent of the people who wrote the law, surely they would have done so. They had no trouble writing a precise definition for a short-barreled shotgun (see US v. Miller).

First, he's not asking whether there has been a ruling, he's asking you to defend the rationale behiond that ruling given the plain reading of the Amendment.

What rationale do I have to defend? Most of the rights enshrined in the Bill of Rights have caveats and exceptions. The provisions of the 1st Amendment, for example, have been argued to a fare-thee-well, in spite of its plain text.

I'm baffled as to what you're asking, quite frankly.

Second, how would laches apply? In what context? I get the idea you might be outside of your wheelhouse here, at least with respect to the law.

Perhaps you're right, but from my perspective it would be difficult indeed to argue down an 85-year-old law based on the fact that the law has been the law for so long that there is no remedy available to overturn it. On what basis would the court overturn the National Firearms Act of 1934? That it's illegal? It's been law for 85 years. Perhaps Aquiescence might be better here?

Finally, (though this seems obvious) no law is unassailable, always being subject to attack from the legislative process and judicial review.

It is obvious. However, some are safer than others.

whole bean
11-11-2009, 05:29 PM
The National Firearms Act of 1934 has distinct definitions. A legal shotgun has a precise definition and is not characterized as a "Destructive Device". To change that characterization, re-categorizing it as a Destructive Device, would be a brazen attempt to change what has been enshrined in law for over 80 years. If that were the intent of the people who wrote the law, surely they would have done so. They had no trouble writing a precise definition for a short-barreled shotgun (see US v. Miller).
You're missing the point. What is the rationale behind the distinction? As it is, you're agurment is they're distinct becuase they've been defined differently. This is circular.


What rationale do I have to defend? Most of the rights enshrined in the Bill of Rights have caveats and exceptions. The provisions of the 1st Amendment, for example, have been argued to a fare-thee-well, in spite of its plain text.

I'm baffled as to what you're asking, quite frankly.
And these caveats are based on a rationale often embodied in a test. For example, in the context of limitations on speech, there was the "clear and present danger" test put forth by Justice Holmes. This was later replaced by the "imminent lawless action" test. What is your test, your rationale behind the distinctions between the weapons categorized as Destructive Devices and a shotgun [if you say the statutory law draws the distinction, we might as well stop ]?


Perhaps you're right, but from my perspective it would be difficult indeed to argue down an 85-year-old law based on the fact that the law has been the law for so long that there is no remedy available to overturn it. On what basis would the court overturn the National Firearms Act of 1934? That it's illegal? It's been law for 85 years. Perhaps Aquiescence might be better here?

The remedy is judicial review. It knows no statute of limitation. If the court thinks a two hundred year old law is unconstitutional, and the question is properly before the court, the court should and would strike down the law. "Seperate but equal" was the law of the land for sixty years before it was overturned.


It is obvious. However, some are safer than others

Though age is not the reason

whole bean
11-13-2009, 10:23 AM
Airman Doors, USAF, my question is in good faith. Is there any reason that you've abandoned this debate?

Airman Doors, USAF
11-13-2009, 02:34 PM
You're missing the point. What is the rationale behind the distinction? As it is, you're agurment is they're distinct becuase they've been defined differently. This is circular.

Not so. The Court specifically recognized the legality of a shotgun in Miller when they convicted Miller for violating the National Firearms Act by possessing a "short-barreled shotgun". Therefore, the Court made the distinction between a shotgun and a weapon defined as a Destructive Device. Incidentally, they also said:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

That is amusing balderdash from the Court in that short-barreled shotguns most assuredly were commonly used by the military at that time, both in the past and in the future, but that's neither here nor there, just an interesting sidenote.

And these caveats are based on a rationale often embodied in a test. For example, in the context of limitations on speech, there was the "clear and present danger" test put forth by Justice Holmes. This was later replaced by the "imminent lawless action" test. What is your test, your rationale behind the distinctions between the weapons categorized as Destructive Devices and a shotgun [if you say the statutory law draws the distinction, we might as well stop ]?

Again, see the Miller decision. Until Heller, the Supreme Court was all but silent on the topic, so that was all we had to go by. They made the distinction based on the law that made the distinction.

The remedy is judicial review. It knows no statute of limitation. If the court thinks a two hundred year old law is unconstitutional, and the question is properly before the court, the court should and would strike down the law. "Seperate but equal" was the law of the land for sixty years before it was overturned.

If the Court overturns the NFA as unconstitutional, they will be overturning all other gun control statutes (the GCA of 1968 and the FOPA of 1986) as those were mere modifications of the NFA. That would instantly destroy the system we have for background checks, it would destroy the limitations on importation of weapons, it would reintroduce the ability of manufacturers to produce automatic weapons for civilians... in this climate, do you think the SCOTUS would do that, even if they'd like to? They have already approved of restrictions. Scalia pointedly said so in the Heller opinion.

Anyway, I do not understand why you're trying to pin me down on this "plain reading" point. The "plain reading" of several Amendments does not preclude restrictions on the rights they protect. According to the plain reading of the 2nd Amendment I can have anything I want. I mean, if that's what you want to hear, there you go. But I, and almost all gun owners and gun-rights advocates save for a few that want something that never really existed to begin with, recognize that like all rights, these are not absolute.

whole bean
11-15-2009, 12:42 PM
According to the plain reading of the 2nd Amendment I can have anything I want. I mean, if that's what you want to hear, there you go.
Ok. I commend your candor, I to agree that 1) the 2nd Amendment does mean ordinary folk (i.e. you and me (or maybe not you, since it appears your are in the service)) have the right to gun ownership; and 2) this right to bear "arms" can and should be limitted. I just felt like someone raised an interesting piont and you sidestepped it.

ExTank
11-15-2009, 02:04 PM
Oregon Sunshine offers
I would agree. Quoting only a selected portion of the one sentence Second Amendment while conveniently the rest of the sentence is truly a no brainer.

I posted a link to the Heller decsion at FindLaw.com in your other thread, with select quotes explaining the difference between an introductory clause and and operative clause, and what constitutes the militia.

Did you even bother to read it? Or do you just see it as another evil plot of the evil gun lobby to confuse you with facts and technical jargon?