My ideal would be to repeal and replace the 2nd. I do like the idea of some level of protections for personal defense, but the 2nd, as worded, is far too open to interpretation, on either side. I do think that the militia part of the amendment is actually an important part in explaining how the amendment is to be used. That’s not the current interpretation, but it would only take a bit of change on SCOTUS and then that is the interpretation that is used. I do think that it should be worded much more clearly and unambiguously as to what it is trying to accomplish, and what means it is allowing to be used towards that end.
OTOH, I do like when 2nd amendment supporters point out that nothing can be done about gun control as long as 2A is in existence, because everytime they explain that 2A means that no one can touch guns, support for 2A wavers just a bit more.
This woman, I know, has converted 3 of my acquaintances that own guns and have been quite staunch gun rights supporters into being against the amendment as it stands.
So, yeah, just keep fighting the good fight, and they will defeat themselves in time.
And it may be that it is more than just 2A that needs updating.
Most constitutional scholars that I “consulted with google” tended to consider the 9th amendment to be more of a philosophical statement, and I did not get the interpretation that the constitution did not grant rights, but more that the constitution was not an exhaustive list of rights.
I don’t say to dismiss them, but I will continue to disagree with and debate them about the subject. I do admit that sometimes it does feel as though they do dismiss those that disagree on it.
The threats from the environment have changed. There is not so much a concern about cougar attacks (they are extinct), bear attacks, or anything like that. We also do not need to worry about defending ourselves from the indigenous populations.
There are no roving bands of thieves traveling the countryside and terrorizing towns or farmsteads. There are no concerns about the slaves revolting. There is very little chance of Spain, England, or France invading.
So, the need for guns has drastically changed in the last couple hundred years.
The needs for justice by deliberation of your peers, for redress of grievances, and for not being beholden to someone else’s god is still the same.
What, clog the radiators of trucks with dead bodies until they overheat?
taking guns away does not remove criminal intent. It just removes the ability to defend against it. If seconds count the police will be minutes away. Nothing against law enforcement but a great deal of their time is spent documenting their failure to protect people. They simply can’t be everywhere.
Where do you get the idea that anything in the BoR has an expiration date or a “delete when no longer needed” date?
Not that it matters, but cougars are, if anything, resurgent, not extinct. They are found in every state except Hawaii, and over the entire continents of North and South America. I saw one no more than a couple miles from my house not that long ago.
You may be talking philosophically, but as a matter of law and not philosophy, you are wrong about the 2nd amendment granting rights. Consistent with the entire history of US jurisprudence, SCOTUS has consistently held that the 2nd amendment recognizes a pre-existing right.
Do you mean abolish and replace with a more explicit individual right to arms, or simply an abolishment? Because I can’t square you being libertarian and accepting the banning of arms.
This may be true - I don’t know - but by the same token, every time the more extreme anti-gun people say things like “America should have the same gun laws as Australia and Japan”, i.e. calling for them to be all but completely banned, it galvanizes the support for the 2nd Amendment because people can say, ‘hey look! They DO want to take away all your guns, they’re just lying when they say ‘common sense regulation’, their actual goal is to make America eventually like Australia and Japan.’
I am a Democrat, an owner of guns, not a concealed carrier though I support the right of properly vetted people to do so, and think of myself as a moderate on the issue of guns, as with most political issues generally. But some of the anti-gun arguments I’ve been seeing lately, are sort of tilting me more towards sympathzing with the pro-gun side, though not to the point of advocating their positions outright.
Some of the gun control arguments I see made, are very fallacious, in the sense of actually falling under one of the classified categories of fallacious arguments. Not to mention the cognitive dissonance that seems inherent to the idea that Donald Trump is a neo-fascist aspiring-dictator who intends to oppress minorities and is capable of crashing the economy and possibly ending democracy in this country, and then also saying that the population should give up its weapons. It doesn’t make much sense to me, I gotta say.
Oh, also as a Democrat who, you know, wants Democratic candidates to actually win, I wish they’d back off this issue as a party platform for the time being.
As an atheist and a scientist, I don’t subscribe to the idea of natural rights. I understand why many of the Founders and many people today do subscribe to that notion, but I think they are wrong. I think there are things that we can understand about humans as social animals and that make sense to codify as rights, but they are all social constructs and subject to the democratic process. I think there are many things that we want to codify as rights because we think they are necessary for a free society. But singling out guns, as opposed to any number of other things, for special protection in the constitution is an anachronism. Something that might have made sense in the 18th century, but doesn’t make sense in the 21st century.
As a libertarian leaning political guy, my default position is that I don’t want the government to ban anything unless there is a strong, compelling interest to do so. Eliminating the 2nd amendment would not lead to an automatic banning of gun ownership anymore than overturning Roe would necessarily lead to a ban on abortions. But I do think the country would be better served with more gun control than we have now, and the 2nd amendment is a barrier against that. Small “l” libertarianism is a great starting point, but it’s just a starting point. I am not a Libertarian, thinking that absolute freedom is above all else. If I had to put something “above all else” it would be democracy. It doesn’t create perfect freedom, but it’s the best we can do. If that means certain types of weapons are banned, then so be it. I’m generally in favor of what works, not what is theoretically pure.
How would the law be applied differently if it were a right that is guaranteed by the constituion, vs a right that is granted by “nature”?
What would happen if 2A were repealed? If it is a pre-existing right, then does repealing 2A mean that it never was a pre-existing right, or that it was a pre-existing right, but that right ended? Does the idea that it is a pre-existing right mean that it cannot be removed by the amendment process?
I’m not going for a gotcha, I really am confused as to how to square this.
There will always be some people somewhere or other that say things that upset 2A people. It’s pointless to worry about that. Personally, rather than Australia or Japan, I would rather follow the Swiss model, but even that pisses off the 2A’ers. It doesn’t matter what other nation you look to for an example of how they solved a problem we are still struggling with, it isn’t the country you are comparing it to that upsets them it is the fact that you are pointing to the easy and free access of guns in our country as a problem that they take exception to.
The thing is, yes, 2A people are upset, and they may even be getting louder, but what they are not getting is larger. The number of people who hold 2A to be some sacred natural pre-existing god given right is dwindling, and the number of people who would like to see some sort of common sense gun controls put in is growing.
I’m a democrat, and I am fairly open to people having guns. Many of my friends own guns. I sometimes go to the range and shoot some guns. I’d probably have a gun if I had a few hundred dollars to burn.
But, at the same time, I fully recognize that there are some people out there that should not have easy access to guns. I’d be happy with 2A if it allowed for sensible restrictions. But when you have conservative state representatives telling the sherrifs of the state to ignore the executive orders of the goveneror becuase the governor has made an order to find out where the cracks are in the background check system, ont he grounds that "our governor has no seeming knowledge or understanding of our U.S. Constitution, and our right to carry without infringement from government of any type,” it weakens the 2A’er position.
I see many fallacious arguments all the time. If having someone use a fallacious argument to support your position means that your position is untenable, then so is the 2A’ers.
As far as your second bit there, where you accuse cognitive dissonance, the people with the guns are more supporters of trump than not. IF there were to be some sort of ending of democracy, it would be the 2A’ers who would be recruited to suppress the uprisings of the “evil libruls”. I don’t think that that is a likely case, but there is no dissonance there either.
Well, sure, if democrats were pro-gun, pro-life, pro-tax cuts for the wealthy, or any of the other helpful suggestions that conservatives give to democrats, they’d get more of the conservative vote, but then would they still be democrats?
As far as who “they” are that should back off, are you saying that all democrats should, including the ones in districts with very high support for gun control? If so, then they may not have the support of their constituency, who may either run someone in the primaries who more reflects the values of the voters, or they may not be willing to support the democrat in the primary who holds the same positions as the republican. If not, then we will stay right where we are, where 2A’ers get upset that some congresscritter from a deep blue district says something about gun control.
If it were a pre-existing right, then it doesn’t need the constitution to recognize it. Repeal the 2nd and the right still exists, just as other rights exist per the 9th amendment. Imagine that the DoI said:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, keeping and bearing arms, and the pursuit of Happiness.
I’m not saying the right to arms and defense is granted by nature. It’s just not granted by the constitution as a matter of law. How would the law be applied differently isn’t really germane to the question of whether your understanding of the law is accurate. As to the question, I don’t know. Could be very different, could be exactly the same.
If the 2nd amendment were repealed then the right to arms would be more of a state by state issue and those states like CA, NJ, NY, HI, etc would probably ban some or all weapons, and other states would remain the same or strengthen the right to arms in their laws. It’s like asking if laws against murder were repealed, what would happen? Would killing people for no reason all the sudden be ok? I’d say no even if the law didn’t recognize that. As a philosophical matter I would be right, but as a matter of law that would no longer be the case.
To say a right is “unalienable” is an absurdity, simple common sense tells us that all our rights have limitations, and those limitations evolve as we evolve. All that need be done is to interpret the 2nd in a reasonable and sane fashion. Hunters will still have Bambi-pluggers, paranoids can still “protect themselves” against whichever phantom haunts their minds.
But civilians with weapons designed for soldiers? Just plain stupid. Maybe made sense on the frontier, back in the day, when the native population insisted on sternly enforcing immigration policy…
I don’t think “unalienable rights” means “unlimited rights”. It just means that the right cannot be abolished, even by law. When rights conflict, something has to give. The right, however one defines it and with whatever limitations, is not granted by the state, but exists whether the state recognizes it or not.
Otherwise, I agree with your post. With the exception that “weapons designed for soldiers” is too broad. I would say “weapons designed for soldiers to kill large numbers of people rapidly”. There are quite a few military weapons that fall outside that description.
So, if 2A is repealed, then people still have the right to keep and bear arms, even if the law states differently?
I see 9A as giving me the right to put whatever that I want into my body, but there are laws that congress has passed that curtails that, and forbids certain substances from being possessed or used. Regardless of your feelings about drug laws, do you think that the 9th makes such laws unconstitutional? If not, then what rights, exactly, does the 9th protect?
I feel that it protects the rights that there are no laws about. If there is no law saying that I may not possess or use this substance, then I may. The ninth sets up our legal system as a permissive system by default, rather than a prohibited system.
But it doesn’t, and one of the reasons for that was that the philosophers at the time considered life and liberty to be the idea of natural rights, with the right to property or happiness as an aspirational one. They didn’t say anything about guns at that time, because they didn’t believe that guns were an inalienable right.
You could make the argument that guns are necessary in order to pursue life, liberty, and the pursuit of happiness, but you could make the same argument about drugs.
This is of course, not relevant, as the DOI has exactly 0 legal binding power. It is an aspirational document, not a legal one.
Yeah, it means that it cannot be taken away. Which means that any right that can be taken away cannot be inalienable.
Then what does grant it? Who protects your right to bear arms?
I wasn’t asking how it would be applied. That’s simple legal systems. We’d have laws that said when and where you may bear arms.
I’m asking about what a pre-existing right means, in the context of that pre-existing right being revoked. Does the fact that it is considered to be pre-existing, natural, and inalienable mean that the process laid out in the constitution to amend it will not apply?
agreed
No, that’s a bad analogy on several levels. 2A restricts the govt, laws against murder restrict the people. If 2A were repealed, and some states put in some reasonable restrictions on the type and manner in which one may bear arms, would someone who refused to follow those laws be in the right, as a philosophical matter?
As a matter of law, nothing yet identified grants it. Do you acknowledge that our current law recognizes the rights identified in the 2nd amendment as pre-exisitng, not granted by the constitution?
As a matter of law, of course not. If the people are forcibly disarmed it means that the right to arms is being violated.
An analogy requires one to smooth over areas of difference to focus on the underlying similarities. A precise analogy would simply be a restating of the fact pattern. Feel free to substitute slavery. If the 13th were repealed, does that mean that people have no right to not be enslaved? Would engaging in slavery all the sudden be ok as a philosophical matter? My position is that people always have a right to not be enslaved, though that could be violated at times by both individuals and governments. Your formulation of rights would say that if the government allows slavery by law, then the people have no right to not be enslaved - is that accurate?
I acknowledge that that is a philosophical interpretation, one that has been used by SCOTUS justices in the past, but as a matter of reality, rights are granted by the authority that guarantees that right.
If no one recognizes and guarantees that right, then it’s not a right, it’s just something that you want.
If a criminal is disarmed, is their right to arms being violated?
I would say that our government belatedly incorporated and guaranteed the right to not be enslaved. I would not say it was a pre-exiting right.
If the govt reversed that, I would be strongly opposed to it, I would speak out against it, I would vote for people against it, and I may even take up arms against my country over it.
I may even say that, from a philosophical point of view, that everyone has the right to liberty and freedom of association.
But I am under no illusion that that is not a fiction that we agree upon, and ask our government to protect for us.
There is really no risk from the English crown hauling you off for a secret trial either, which is why part of the Bill of Rights exist. So, it’s not still the same.
Cougars are by no means extinct. Trust me, we saw one just down the street a week ago.
Sure, and let’s interpret the 1st Ad in the same way. “Reasonable limitations”:rolleyes: include you can have any faith as long as it is Christian. You can speak out but not against the government. Nudity is ok if tasteful but hardcore is illegal.
More or less every gun we have now is based on a design originally for the military.
But there is risk of your govt doing so, which is why the bill of rights exist.
Yeah, not all of 'em, but does everyone really need ready and easy access to an AR-15 for you to protect yourself against them?
We do interpret the 1st with some reasonable limitations. Porn is legal, but underage is not. You can be sued if you say something harmful and untrue about someone publically. You are not allowed to incite people to violence or panic. You can be subject to prior restraint if you threaten to give away classified material.
You may be subject to limitations on what you can display on your home, your business, or your vehicle.
Religions do not get a free pass either. If you are an Orthodox Aztec, you still don’t get to sacrifice people to your gods, even if they are willing. You also cannot kill your family members for breaking religious rules, nor mutilate your daughter’s genitals in an effort to please your deity. It still is an open question as to whether you can use your religion as grounds to discriminate against people, but the consensus seems to be leaning against it.
This is not an exhaustive list, but it’s a start.
So, you see, there are many reasonable limitations to the first amendment. Do you object to those?
More or less, indeed. In any case, there are guns that are designed for the purposes of killing large numbers of people as quickly as possible, and then there are guns that are designed for hunting, and there are guns that are suited for personal protection. It would seem as though a gun advocate would not try to say that they cannot tell the difference between the purposes and uses of the tools they enjoy.