A Question for Gun Owners

[Danielinthewolvesden]

Thanks, Tracer,

[Glitch]

Dan: Water under the bridge.

Gadarene: I am not sure what you mean by your question. From what perspective would it be useful, keeping in mind that various states already have gun registration.

a) Police. From the police perspective it doesn’t really help. They recover a bullet from the victim and might be able to establish the caliber (if the bullet isn’t excessively fragmented). That doesn’t really leave them a whole lot to go on. It would help when they start to narrow in on a suspect and discover that the suspect has a gun of the right caliber registered in their name. Again, keep in mind, we already have this system in place.

b) Prosecution. From the prosectution perspective it is a piece of circumstancial evidence. Since I am not an attorney I can’t really say how powerful it typically is, but I can say personally, if I were on a jury it wouldn’t be that swaying a piece of evidence by itself to me. Owning the gun doesn’t mean that the prosecution has the correct gun, or that the person who owned it was the one who used it.

Again, no real skin off my nose to have my gun registered, since I am not planning on going and shooting anybody. And the criminal is likely to either: a) not bothering to register or b) use an el-cheapo gun and throw it away.

Now let’s take a look at a). The big problem we face is that criminals are not being prosecuted for gun violations. These things are typically dropped or pleaded out. Note, that “Project Exile” in Philidalphea (sp) is making a federal case (literally) out of gun violations. The result, violent criminals are being sent to federal prison, and Phili is experiencing a reduction in violent crime.

[Mr.Zambezi]

Gadarene, as you requested, Madison’s draft

V.A well- regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed: but no one religiously scrupulous of bearing arms shall be compelled to render military service in person

The militia is composed of the body of the people. This seems pretty clear to me. He means all people are part of the militia. Which is in keeping with the above mentioned court cases.

IT also states that no one scrupulous of bearing arms shall be compelled to render military service. How can a person bear arms, not be in the militia and also be in the militia? Sounds to me like he is saying that everyone can have arms, but that they do not have to use them for military purposes.

It seems to me that Madison’s draft argues against you.

Let me try this a different way. Let’s say that the constitution said “well educated people being necesary for the success of the nation, the peoples’ right to read books shall not be infringed.”

Would this mean that only those that were members of the well educated class could read books? or would it mean that everybody has a right to read books in order to be able to be called “well educated”?

[Gadarene]

**
Gadarene, as you requested, Madison’s draft

V.A well- regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed: but no one religiously scrupulous of bearing arms shall be compelled to render military service in person

The militia is composed of the body of the people. This seems pretty clear to me. He means all people are part of the militia. Which is in keeping with the above mentioned court cases.

IT also states that no one scrupulous of bearing arms shall be compelled to render military service. How can a person bear arms, not be in the militia and also be in the militia? Sounds to me like he is saying that everyone can have arms, but that they do not have to use them for military purposes.

Not quite. Since, as I’ve mentioned, the phrase “bearing arms” usually referred to wearing a gun while in military service, the draft is most logically interpreted as saying that everyone has the right to possess a gun while serving in a militia, but no one can be compelled to do so, if it’s against their religious scruples.

I’m arguing this case on two different threads now, and I find I’m having to make the same points. So I’ll be succinct, and you can cross-reference if you want a fuller exposition of my views. It seems clear–not least from the above draft–that the second amendment was intended to stimulate gun ownership within the context of a well-regulated militia. Madison is very precise in establishing that context. Given the stated importance of militias, and their relative ineffectualness (due in part to shortage of guns) in the years leading up to the drafting of the Constitution, why would you assume that Madison intended the amendment to encompass men who were part of the general militia, but for whatever reason (isolation, laziness, social class, other responsibilities) were not members of a particular and well-regulated militia?

[Gadarene]

Glitch: Thanks for the considered response. It makes a lot of sense.

[Mr.Zambezi]

Gaudere said

[QUOTE]
Since, as I’ve mentioned, the phrase “bearing arms” usually referred to wearing a gun while in military service, the draft is most logically interpreted as saying that everyone has the right to possess a gun while serving in a militia {/quote}

You are going to have to support you assertion about “bearing arms”. You are also going to have to support how Madison’s amendment is logically interpreted to mean what you say. THere are many, many statements made by supporters of this amendment at the time it was drafted that say the opposite of what you suggest.

I will give you a start if you want to start looking up what the intelligentsia of the time thought

After James Madison’s Bill of Rights were submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his “Remarks on the First Part of the Amendments to the Federal Constitution,” in the Federal Gazette, June 18, 1789 He asserts that it’s the people (as individuals) with arms, who serve as the ultimate check on government:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
“Coxe’s defense of the amendments was widely reprinted. A search of the literature of the time reveals that no writer disputed or contradicted Coxe’s analysis that what became the Second Amendment protected the right of the people to keep and bear “their private arms.” The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights.” (Halbrook, Stephen P. “The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment”. Originally published as 26 Val. U. L.Rev. 131-207, 1991).

I am going to stop arguing the intent at this point because over the past 200 years no court has agreed with you. Uncle Cecil also disagrees with you ( and that is more iimportant ). You can opine about intent all that you want to, but it doesn’t change the law.

Now if you want to argue that the 2nd should be overturned, that is a different matter.

[Gadarene]

I have supported my assertion about “bearing arms.” I quoted the Articles of Confederation using it in exactly the manner I describe. Here’s what Wills says:

“Bear arms” refers to military service, which is why the plural is used 9based on Greek hopla pherein and Latin arma ferre)–one does not bear arm, or bear an arm. The word means, etymologically, “equipment” (from the root ar-* in verbs like ararisko, to fit out). It refers to all the “equipage” of war. Thus “bear arms” can be used of naval as well as artillery warfare, since the
“profession of arms” refers to all military callings. In fact, the only regular use of “arm” in the singular refers to branches of the military–the mounted arm, the naval arm, etc. William Shakespeare called war itself “arms,” and Hamlet’s “take arms against a sea of troubles” was a military metaphor. A whole series of uses shows that “arms” means military service in general–to be under arms (sub armis), to call to arms (ad arma vocare), to take up arms (arma capere), to lay down one’s arms (arma ponere).

Can you show the phrase being used contemporary to the framing of the Constitution in the context of private ownership?

Oh, and our versions of Madison’s submitted draft are different structurally. Mine comes from Bernard Schwartz’s The Bill of Rights: A Documentary History and is phrased

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

And the final (and ultimately omitted) clause of the submitted draft pretty clearly equates “bearing arms” and rendering “military service.” It may be a nicety, but I haven’t heard of someone being bound by their religion not to own a gun; several religions, on the other hand, pronounce against military service (like the Quakers in Revolutionary times).

Tench Coxe, by the way, is hardly an authority on matters constitutional. He contends that the First Amendment’s establishment’s clause is intended to limit only “impious” and “self-righteous” religions. I’m sure he’s no less an expert on the intent of the Second.

Keep on thinking, too, that no court has agreed with me in the last two hundred years–and I’ll remind you that no court has disagreed with me, either, and that the closest they’ve come to addressing the issue is in United States v. Miller, from which I’ve already quoted.

Finally, like I said in the other thread–and I think I’ve backed it up reaosnably well–this is one of the rare, rare occasions where Cecil’s interpretation isn’t, well, exactly correct.

I think we can end this, though, Zambezi; there’s no way one of us is going to convince the other. We both feel that facts and history are on our side. Like I’ve repeatedly said, I think that private gun ownership is a contitutionally-provided Ninth Amendment right; I’m not about to advocate that everyone’s guns be taken away. I’m just trying to clear up some misconceptions about original intent, and it looks like that ain’t gonna happen.

[Gadarene]

For the love of all that’s good and holy, could everyone stop calling me Gaudere??

It’s a comparison the merits of which I’ve not yet achieved. Thank you.

[Danielinthewolvesden]

I hate to bring up a point that weakens my own case, but as I have somewhat positioned myself as the closest thing to an expert on forensic ballistics we have here, I guess I have to be fair. The FBI and various Gun Manuf are working on the concept of a national registery of shell CASINGs, ie the “brass”. New technologies have got this to the point that this would actually be useful, UNLESS the miscreant changes the firing pin. It is also only really useful in semi-auto pistols, but as cheap .25s and nicer 9mm are the gun of choice for gangs now, it could be useful. The idea is that the MANUF would send a test cartridge to the FBI, and then the FBI could trace it thru forms that “register” handguns @ purchase. My source also pooh-poohed the idea of “test Bullets”, tho.

But this would add nothing to the burden of the gunowner, or add anything in the way of registration. They also don’t want it widely known, as changing the firing pin would render it useless. As to wear, apparently it takes over 100K rounds to make a noticeable change here, as opposed to several thousand rounds + a coulple vigorous cleanings with barrels/bullets.

Just to be fair…

[Gadarene]

Thanks, Daniel. Interesting.

(See? I can play nice! :D)

[Max_Torque]

The good people at GunCite have posted the following comment on the Miller case, which Gad is so fond of quoting:

Note Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.

They also state the following:

…the Miller court defined the Militia as the following:

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.

So, what’s your response, Gad? Still like Miller?

For more on the inherent flaws in the Miller case and how it has been misinterpreted, see Brannon P. Denning, Can The Simple Cite Be Trusted?: Lower Court Interpretations Of United States V. Miller And The Second Amendment, 26 Cumb. L. Rev. 961 (1996). Excerpt follows:

More significantly, the actual holding of Miller is a far cry from the proposition for which it is cited by many groups: that the Second Amendment does not protect an individual, enforceable right. On the contrary, the Court’s opinion acknowledges that historical sources “show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense … And further, … these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Unfortunately, the Court fails to explore the logical consequences of its conclusion. Thus Miller is perhaps most notable for the questions it left unanswered. What would have happened, for example, if Miller and Layton had retained an attorney to represent them at oral argument and put on evidence about the militia and weapons that militia members generally possessed?

(We interrupt this quote temporarily to emphasize this point: defendants were not represented by an attorney and did not present any argument to the Supreme Court. Why this happened is unclear, but it is perhaps significant to note that the case appeared before the Supreme Court by an appeal of the United States; the U.S. lost at trial.)

Or what if they had argued that the introductory phrase of the Second Amendment merely expressed a widespread sentiment against standing armies and was not meant to qualify or to limit the “right of the people to keep and bear arms?” Given the incomplete record before the Miller court, as well as the very narrow holding of the case, questions regarding the meaning of the Second Amendment and its outer limits should be regarded as far from settled. Nor should the alleged “unanimity” of Miller’s application in the lower courts be evidence of its persuasiveness, for, as I shall show, this “unanimity” is largely a function of the lower courts’ less-than-honest treatment of Miller’s holding.

[Gadarene]

The good people at GunCite have posted the following comment on the Miller case, which Gad is so fond of quoting:

Note Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.

Max, I was gonna post and tell you that this line of reasoning made absolutely no sense. But then I thought about it, and you’re right: that’s pretty much the logic of the court. If the weapon you’re carrying would be allowable under the Second Amendment–that is, if it possesses “reasonable relationship to the preservation or efficiency of a well-regulated militia”–then your own membership in a particular militia is irrelevant. However, the paragraph from Miller that I cite in the other thread makes it pretty clear that the Court believed the strengthening of militias (in the particular, rather than the general) to be the intent of the Second Amendment. To my mind, they actually go astray from this view a bit by extending Second Amendment restrictions to every mug with a militia-quality weapon, but I won’t quibble. What I’ve been arguing, mostly, is original intent, and I’ve yet to see any refutation of my (and the Court’s) contention that the Second Amendment was created with the welfare of the militias–and, by extension, the welfare of the state–wholly in mind.

I’d really like your opinion about my revised interpretation of the Framers’ intent, as I think it reconciles both our positions rather nicely and hews consistently to historical fact. It’s on the other thread. Thanks.

(I think I’ve rendered further discussion of Miller largely moot, with my post above and my most recent post (6:51pm CST) on the other gun control thread–if you feel I haven’t offered full treatment of your points on Miller, let me know, and I’ll do my best to address 'em.)

[Max_Torque]

Original intent. You got it. From Federalist Paper 46, written by your favorite and mine, Madison:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.

…

Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

It appears that Madison envisioned an armed citizenry. Note well that the militia here is formed of “men chosen among themselves…with arms in their hands” or armed citizens. I’m willing to concede that the vision was of an armed citizenry defending against national tyrrany, and if you want to argue about whether or not such a thing is still appropriate, we can, although such an armed citizenry fits the definition of ‘militia’ in the U.S.C. as I gave it previously.

However, you MUST concede that the above demonstrates a clear and unquestionable belief on Madison’s part that the citizens have the right to arm themselves.

[Gadarene]

However, you MUST concede that the above demonstrates a clear and unquestionable belief on Madison’s part that the citizens have the right to arm themselves.

I’m not arguing that, Max–in fact, I’m saying that he thought the right to arm themselves was so basic, natural, and innate that it need not be enumerated in the Constitution. Just as the right to property isn’t specifically enumerated in the Constitution, though the Framers surely believed there to be one, and its existence is stipulated in almost every amendment.

[Max_Torque]

Then you’ll have to remind me again…what are we arguing about, if you agree that citizens have the right to possess firearms (or “weapons consistent with the concept of a well-regulated militia”, if you like)?

[Gadarene]

Then you’ll have to remind me again…what are we arguing about, if you agree that citizens have the right to possess firearms (or “weapons consistent with the concept of a well-regulated militia”, if you like)?

Well, I don’t know if we are arguing…not like Daniel and Zambezi and I are arguing, anyway, and I think half of that can be attributed to miscommunication. To the extent that there’s a bone of contention between you and me, Max, it’s probably that I don’t believe the Second Amendment conferred the right to own guns; I think that right already existed (and, if a constitutional basis need be found, it’s in the Ninth Amendment rather than the Second). I go into more detail in my response to your cite of Federalist 46 on the other thread, among other places.

It’s an article of faith with the NRA crowd that guns hold a special place in American law, being the only material item whose ownership is a right explicated in the Constitution. The historical evidence doesn’t support that interpretation. I quoted Garry Wills earlier; it’s useful to do so again, regarding the “sacredness” of the right to guns, and its supposed constitutional origin:

Those who believe there is a natural right to own guns can argue their case on many grounds–natural right, for a start–and the arguments might be sound or strong. It is just not a constitutional right (many of our rights are not constitutional ones). Why, then, does the NRA search os feverishly for a constitutional amendment that eludes them? …Sanford Levinson gives away the reason when he says that flooding our society with guns is getting more difficult to defend on other grounds–of prudence, say, or safety, or social amity. But just as the First Amendment forces us to put up with speech that might otherwise be considered destructive or obnoxious, we have to put up with our gun culture because the Constitution tells us to. But it doesn’t.

I don’t go quite as far as Wills; I don’t think that our “gun culture” is to blame for all of society’s ills, or that it could be conscionably legislated against even without a Second Amendment basis for claims of right. But I do think guns have been excessively venerated in this country, in part because the right to own them is seen as distinct from the right to own any other property–a shovel, for example, or a team of horses. Guns aren’t so intrinsically different from these other items that they demand special treatment–especially in the late 1700s, when most people didn’t even own a gun that worked. What did deserve constitutional mention was the right to assemble in armed groups which were independent of the federal army. Madison–as in Federalist 46–sought to reassure the people that they would have recourse to organize in the unlikely event of a military coup, and that the states would not cede all their power to a strengthened federal government. That was the purpose of the Second Amendment. If you have evidence to the contrary, I’d be willing to examine it. Mine, though, is thus far the theory which best fits the record.

[mealworm]

We own guns. My grandfather owns some guns. We just keep a few cool revolvers for looks. Cowboys. Anyway. Here’s what I think:

1: Mandatory registration of firearms

Why not? Why the hell not? Unless you don’t want Uncle Sam to know you got 'em. And if that’s the case, you’re trouble anyway! Register the damn guns!

2: Mandatory licensing of firearm owners

Would not bother me. Again with the ‘Why not’. Seems rather useless to do both, though.

3 & 4: Five day/ two week waiting period

Whatever it takes. I completely agree with a waiting period. If Bubba can’t wait 5 days for his gun, his trigger finger is itching way too much.

5: Prohibition on ownership of automatic weapons

Sure. I don’t need an automatic weapon for protection. I’d rather not know that some wacko at a school can have an automatic weapon. We don’t need these things! Hunters would not miss them. Collectors can find something else to do. Criminals will have a harder time racking up body counts. Go for it.

6: Prohibition on ownership of grenade launchers

Goes without saying. Hell, yes.

7: Prohibition on firearm ownership by felons

Pretty much. If the crime was severe enough (armed robbery, assault), sure. But likely only for violent offenses. They’ve already violated the protection of innocent citizens… They can waive their right to equal protection, if you ask me.
The fact is, I don’t care if some of the above ‘violates’ the already-foggy 2nd Amendment. There is no reason a waiting period should not be enforced at all sales. There is no reason for the common Joe to have automatic weapons. There is no reason to let violent criminals have guns.

There are too many weapons. You can get them easily. The NRA blurrs the facts. We can make a safer USA without taking the common citizens’ protection away. We just have to be bold enough to take the right steps.

Infamus

[Danielinthewolvesden]

Meal: But there is no USE to registration of guns, or owners. waiting periods do nothing either. And if you were a single woman in a neighborhood with multiple recent rapes, all of women who met YOUR profile, and there had been some suspicious lurkers, I believe you would not want a waiting period. None of those things reduce crime.

[RoboDude]

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I don’t need an automatic weapon for protection. I’d rather not know that some wacko at a school can have an automatic weapon. We don’t need these things!

I’ve heard many prople justify prohibition af assault rifles by saying that “people don’t need military-grade weapons for hunting/self defense/plinking beer bottles”. Now let me ask you something: Why would someone want a Ferrari capable of >150 mph when speed limits rarely go above 55-65? Why would someone want a $10,000 Rolex when cheap watches tell time just as well? It’s all a matter of personal preference. As for the possibility of someone going on a killing spree with an automatic weapon, I’ve already adressed that idea. And as for “I’d rather not know that some wacko at a school can have an automatic weapon”, we already have laws against selling guns to minors and people who are diagnosed as dangerously mentally ill.

[Harkenbane]

From where I sit, the answer to this seems very simple: If the right to bear arms “shall not be infringed,” then let it be uninfringed. Personally I don’t care about the precedent set by limitations on other rights, I honestly think that the Constitution should be read as it stands. “Shall not be infringed.” It can’t get any simpler than that.

This is not to say that I necessarily advocate a society without any restrictions on gun control (I haven’t actually thought about the prospect), only that if we as Americans do not like the obvious message of the infamous 2nd, that we should change it (along with the rest of the Constitution since we seem to dislike it and discount it so frequently) rather than try to say that it means something which it clearly does not mean. This is frankly more important to me than any issue of gun control.