Did Gore "shoot" himself in the ballot box?

ElvisL1ves · August 22, 2001, 9:54pm

Phrase it either way you like. I’m simply looking for the question to be addressed honestly.

That only works logically if you don’t acknowledge that there is also a personal freedom from getting killed. The problem is balancing personal freedoms against each other, and it is not resolved by claiming one’s own choice of freedoms trumps everyone else’s. People can’t live together that way.

Joe_Cool · August 23, 2001, 3:00am

My answer is that your question is irrelevant. Liberty cannot be encroached in the name of safety. The police are not commissioned to protect you, and they would not do so even if all guns were banned. You are responsible to provide your own safety. Problem is, the government makes it illegal for you to do so, thereby giving a firm advantage to the criminal.

Don’t feel bad though…Thomas Jefferson also addressed your question, though in a nonspecific way:

And I agree with him.

ExTank · August 23, 2001, 3:33am

Elvis:

I didn’t “duck the question”. It is a value judgement rendered by the larger society contending with the issue. Unlike HCI, I don’t pretend to speak for the rest of my fellow citizens by offering up my opinion as fact. If you want opinions, w can ask the Mods. to move this to IMHO (where the Mods. there will immediately boot it right back over to GD)

“How many homicides are acceptable” and “How many firearm homicides are acceptable” within any given period are two separate questions, and I’m not entirely sure that you are distinguishing the two. You do realize the firearm homicides comprise, at the most, approx. 75% of total homicides, yes? The spike is around the 17-19 y/o age group.

And Uncle Beer is entirely correct that firearm suicides should be separated from firearm fatality stats. If you look at Japan and Norway, each have civillian ownership/private possession of firearms at less than 1% of the population, yet Japan has age-adjusted suicide rates equal to the U.S.A., and Norway’s is higher (I forget the numbers, but can provide them if you so desire; somewhere around 30%+ higher, IIRC). How can you account for that? Two non-gun owning societies with non-gun suicide rates equal to and higher than the U.S.A.?

My opinion: it ain’t the guns. If someone wants to die badly enough, they will find a way, regardless. Numbers at least nominally support that theory, but it ain’t set in concrete.

The prohibition is against killing for pleasure and profit, and derives from the Old Testament (religious types can quote you chapter and verse, as they have before; suffice to say that for me, it’s good enough to know that it’s there). But there is no “sin” or prohibition against using force, perhaps even lethal force, for self defense or defense of others.

There is already embodied w/in our laws (state mostly) mechanism to ensure that if you (generic) take a persons life w/o justifiable reason, then you are tried for manslaughter or worse. Ever heard of the term “justifiable homicide”?

One of the legal aspects stressed in my Concealed Carry class (required by Texas law before issuance of a permit) was the legal and justifiable use of force. Using various common scenarios, we learned when we would be legally justified, and when our asses would fry.

Another Easy One From H.C.I.: The Myth of The Second Amendment

How often have you heard someone argue against gun control laws by claiming: “Gun ownership is a constitutional right guaranteed by the Second Amendment”? The assertion that the Second Amendment to our Constitution guarantees a broad, individual right to “keep and bear arms” and that it precludes any reasonable restrictions on guns is the philosophical foundation of the National Rifle Association’s opposition to even the most modest gun control measures. The NRA’s constitutional theory is, however, divorced from legal and historical reality. It is based on carefully worded disinformation about the text and history of the Second Amendment and a systematic distortion of judicial rulings interpreting the Amendment. The result is a Second Amendment “mythology” which has been difficult to counter.

Hard to fight the truth.

Uhm…no. We don’t.

Ain’t it easy to villify your enemy by putting words in their mouth(s)?

From Merriam-Webster:

Also, from 10 USC, Ch. 13., sec. 311

Some thoughts from the people who drafted the Constitution and the Bill of Rights:

Jefferson:

“No Free man shall ever be debarred the use of arms.”
Thomas Jefferson, Proposed Virginia Constitution
“A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.”
Thomas Jefferson,
Letter to Peter Carr, his 15-year-old nephew,
August 19, 1785

“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

Washington:

Hamilton:

“Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped;…” The Federalist Papers # 29.

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution…Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped;…” The Federalist Papers # 29.

“There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instill prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?” The Federalist Papers # 29.

Lee:

Mason:

Adams (Sam)

And finally, a summary from U.S. v. Miller the oft-misquoted “benchmark” case H.C.I. claims proves that they are right. You can actually read it for yourself at United States v. Miller, at FindLaw

Kind of hard to make a case for something when you aren’t present to make an argument.

Note the narrow ruling here; they’re talking about the efficacy and utility of a double-barreled shotgun. The “absence of evidence” is because of “No appearance for appellees.”

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

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.

So, we have a Supreme Court ruling that the Militia is the people, and are expected to provide their own arms when called for service.

I skipped the stuff in between the previous and the next sentence; it is a discourse on the sort of arms the militia were expected to provide, as of the time of the writing of the Constitution and the Bill of Rights.

Kind of a one-sided argument, but it only narowly addressed the “double-barreled shotgun” question, and didn’t explicitly rule, one-way-or-another, on the 2nd Amendment.

Una_Persson · August 23, 2001, 4:14am

Define irony: someone accuses another of “ducking the question” when he still won’t defend his assertion that handguns are “useless” for hunting.

And since when did our rights become “needs” based?

Una_Persson · August 23, 2001, 4:56am

A little light reading, courtesy of the talk.politics.guns FAQ:

From the United States Constitution (U.S.C.), Amendment II:

And also from Article I, sec. 8 (clauses 15 and 16, commonly
referred to as “the militia clauses”) – Powers of Congress:

And from Article II, sec. 2 (clause 1) – President to be
Commander-in-Chief.

And from the U.S. Code Annotated (U.S.C.A.) title 10 sec. 311 (as amended Nov. 30, 1993) [relating to the definition of militia]

"311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are–
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and

    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

And from the U.S.C.A. title 32 sect. 101 (as amended Sep. 29, 1988) [relating to the establishment of the National Guard]

“101. Definitions
[…]
(3) “National Guard” means the Army National Guard and the Air National Guard.
(4) “Army National Guard” means that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that–
(A) is a land force;
(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;
© is organized, armed, and equipped wholly or partly at Federal expense; and
(D) is federally recognized.
(5) “Army National Guard of the United States” means the reserve component of the Army all of whose members are members of the Army National Guard.
(6) “Air National Guard” means that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that–
(A) is an air force;
(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;
© is organized, armed, and equipped wholly or partly at Federal expense; and
(D) is federally recognized.
(7) “Air National Guard of the United States” means the reserve component of the Air Force all of whose members are members of the Air National Guard.”

Also from the Talk Politics Guns FAQ:

There is no historical basis to the claim that the Framers of the Second Amendment intended to limit its scope solely to protecting organized state militias from being disarmed by the Federal Government. In any event, the National Guard is a reserve unit of the United States Army, and not a creation of the individual state governments. It is essentially a Federal force which the governors of the states may “borrow” if the Federal Government does not object. During the civil rights movement of the 1960s, governors attempting to enforce segregation by using the National Guard found out why it’s called “National” (if they hadn’t known already).

The English common law tradition, and the works of political philosophy which influenced the Founders of our republic, as well as their own writings, show that the right to keep and bear arms was considered the hallmark of a free people, and distinguished a free man from a slave (see 3.3). Prior to the January 21, 1903 establishment of the National Guard, the Militia Act passed by the Second Congress on May 8, 1792 had been in force, requiring “each and every free able-bodied white male citizen of the respective states” between age 18 and 45 to be enrolled in the local militia, and to “provide himself” with arms as specified by Congress (originally an eighteen gauge firelock or musket).

Following the establishment of the National Guard, Congress provided for the arming and training of the National Guard under its powers raise and support armies, and made the organized militias of the states into a reserve unit of the U.S. Army called the National Guard of the United States. The National Guard has been part of the Army by law since June 15, 1933; another part of the trend towards an increasingly centralized national government which began after the 1861-1865 U.S. Civil War.

Regarding the odd punctuation in the Second Amendment:

Archaic punctuation, usage, and peculiar grammar (though certainly no more peculiar than many modern legal documents) to some degree obscure the plain meaning of the Second Amendment. As in any human endeavor, mistakes can be made, and from time to time here on t.p.g., the authors of this particular bit of the Bill of Rights get flamed over whether there is in fact (or ought to be) a hyphen in “well regulated” (and/or fewer commas overall) so as to clarify the Amendment’s meaning to modern readers.

The choice of the adjective “unalienable” rather than “inalienable” in the Declaration of Independence has scarcely received more notice than the issue of proper punctuation in the Second Amendment. Confusion over the punctuation dates back to the very drafting and ratification of the Bill of Rights, since some sources give the text of Amendment II as:
    "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."
with only one comma, and no internal capitalization. This version is found in the Senate Journal for Sept. 25th, 1789, and in the Library of Congress’ annotated version of the U.S. Constitution, as well as in the ratification document for the Bill of Rights as passed by the State of New York. Another version of the Second Amendment, this one reading:
     "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."
can be found in the first volume of_U.S. Statutes at Large,_which was published by the Congress in 1861 (note the capitalization of “State” but not “militia” or “arms,” and the single comma).

The trouble is, the more commonly referenced version, which reads:
     "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."
is the version which can be found on permanent display at the National Archives, since it’s in the Federal Government’s original engrossed copy of the Bill of Rights which was signed by Speaker of the House Frederick Muhlenberg and Vice-President John Adams, and that is the version which was copied and submitted to the states for ratification. This is also the version found in the U.S. Code Annotated, and it appears to be the version which was ratified, but given that the one-comma version is the one that the Congress passed and published, it would appear that any of the versions can be considered correct, and the Great Comma Controversy is unresolved (and perhaps unresolvable).

The issue of what “well regulated” meant to the Framers is a much simpler question to resolve. To the modern reader, “well regulated” has acquired the primary connotation of_government_regulation, rather than that of “efficient” or “well functioning” which it had in the 18th Century. About the only common usage today of “regulate” in this sense is found in those commercials dealing with “occasional irregularity,” and as such, modern dictionary definitions, especially such as are found in legal dictionaries, have little relevance to the issue. The first dictionary of American English usage, published by Noah Webster in 1803, gives no entry for “well regulated,” but does include an entry for “regulars,” which Webster defines as “standing troops, [as] opposed to militia.” The Oxford English Dictionary includes as one of the definitions of “regulated” a meaning which directly applies to troops, that of “properly disciplined,” and includes a citation to a 1690 article in the_London Gazette._ Indeed, Alexander Hamilton uses “well regulated” in this same martial sense in_Federalist #6_when he writes that ancient “Sparta was little better than a well regulated camp…” --in other words “an armed camp.” The British Whigs, whose arms right incorporated in the English Bill of Rights of 1689 was the antecedent for similar (but more generous) provisions in the Bills of Rights of the American states, and later the Bill of Rights of the United States, thought of a “well-regulated militia” as a check on the power of the King, and that the RKBA was an individual right, just as was the right to petition the King.

The great English jurist Sir William Blackstone wrote of the right to keep and bear arms as just such an individual right in his 1765 _Commentaries on the Laws of England,_and termed it the “fifth auxiliary right” of the subject, and as important as those of “applying to the courts of justice for redress of injuries,” “the right of petitioning the king,” and the statutory “limitation of the king’s prerogative,” all of which served to “protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.”

Andrew Fletcher, a Scottish Whig, in his_Discourse on Government with Relation to Militia’s,_[sic] wrote of the necessity of “well-regulated militias” to defend not only against invasion by a foreign force, but against the “danger of slavery at home,” a prospect that seems unlikely if “well-regulated” means anything other than “properly disciplined.” While “regulated” and “regulation” can certainly be said to have “government regulation” among their meanings at the time of the writing of the U.S. Bill of Rights, that connotation was far from as dominant at that time as it has become today, in an age when self-regulation was the rule, and a “well-regulated militia” was “the body of the people, trained to arms.” Indeed, one of the most important characteristics of a “well-regulated militia” as it was understood by the British Whigs, and by the American Founding Fathers, was that it be a “general militia” composed of the majority of citizens of the republic, rather than a “select militia” or armed minority of troops who could impose their will on a disarmed people, as the standing army of the King had done upon his subjects. The term “regular army” (as opposed to “irregulars”) gives some idea of the type of discipline and order which the authors of the Second Amendment were trying to evoke with respect to the militia, which they saw as the best available alternative to the dangers and expense of a standing army. The Second Amendment is best considered as a modification of the existing militia clauses of the Constitution, so as to prevent them from being interpreted in a way that would permit the Congress to disarm the ordinary citizens and establish a “select militia” or standing army in place of the “general
militia”.

And some words on the subject of whether the Second Amendment application of “the people” means the same as it does in the other Amendments:

The phrase “the right of the people” means the same thing in the Second Amendment as it does in the First and Fourth Amendments. The U.S. Constitution recognizes and protects, but does not_grant,_the pre-existing right of individuals to keep and bear arms. This is because the Framers assumed that the basis of governmental power originates with the people, whose natural rights are either ceded to government in the form of governmental powers, specifically protected from the powers of government by listing them in the Bill of Rights, or retained by the people, according to the Ninth Amendment.

The history of the drafting of the Second Amendment also makes clear that “the right of the people” means a civil right belonging to each individual citizen. The first proposed draft of the amendment as written by James Madison reads:
     "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."
In addition to clarifying that the Second Amendment has nothing to do with guns owned for “sporting purposes” like hunting (see Gun Control Act of 1968, Appendix I.), this earlier draft clearly illustrates that the “person” whose religious scruples require that he_not_“bear arms” would not be compelled to do so by the Congress, and that the “person” referred to in the text is an individual, and not a group.

This version of the Second Amendment also closely reflects the spirit of the First Amendment’s clauses dealing with religious freedom, in that the Congress should have no power to prohibit the keeping and bearing of arms, but neither should it have the power to compel those persons we would today call “conscientious objectors” to do so. It’s unlikely that Madison intended this earlier draft of the Second Amendment to prohibit the Congress only from calling up all the Quakers and other pacifists _en_masse_as a militia, but rather that each individual would respond to the nation’s call as their individual consciences dictated, and that they would “keep and bear” their private weapons to that end. Indeed, the Militia Act passed by the Second Congress in 1792 did require exactly that, and such a requirement was in force for well over 100 years (see 2.0). This is not to say that the right to keep and bear arms is dependent upon the existence of an organized militia, or that_only_military weapons are constitutionally protected, since, as with the other enumerated rights found in the Constitution, the right is assumed by the Framers to be pre-existing. Just because the right to “peaceably assemble” is protected by the First Amendment explicitly for the political purpose of petitioning the government “for redress of grievances”, this does not mean that_only_political speech and political gatherings are constitutionally protected. The authors of the Bill of Rights explicitly rejected any such narrow construction of the rights of the people, by means of the Ninth Amendment. The Senate, in revising Madison’s proposal, rejected adding the words “for the common defence” to the amendment by a vote on September 9th, 1789; clearly implying that the right intended to be protected in the Second Amendment is a right to bear arms broader than simply for militia service.

The Bill of Rights is about limiting the power of government, not the freedoms enjoyed and exercised by We the People, and consequently it should not be subject to such a narrow interpretation in any of its provisions. The Bill of Rights sets forth the_minimum_standards which its authors felt define a “free state”. Ironically, Madison’s “religious scruples” clause was deleted because of fear that the government could misuse those words to disarm whomever_it_defined as “religiously scrupulous”.

The often-heard phrase “States’ rights” is likewise the basis of some confusion in arguments about constitutional issues, because states don’t have_“rights"under the American Constitution, they have delegated"powers,”_ and the Ninth and Tenth Amendments_clearly_ distinguish between “powers” and “rights”. Governments, whether state or federal, don’t have “rights”. They have_only_such powers as are granted to them under the law. This is a very crucial distinction in American law, and one which is the basis for every just government. Once a government claims the “right” to do_anything,_asserting the sort of natural rights which belong only to individuals, we have returned to an era of the “divine right” of kings.

In American law, the idea of a “collective” right (a right belonging to everyone - but to no one in particular) has no place. It was by just such an idea of “collective” rights that the constitutional guarantees of rights enumerated in the Soviet Constitution were deprived of all practical effect. “The people” owned all the printing presses, and could publish whatever “the people” wanted, but if anyone dared to exercise their individual right to free expression, they might be shot, sent to the Gulag, or to the mental hospital for “rehabilitation.” Interpreting the phrase “the right of the people” to mean a “collective” right in the Second Amendment places the First Amendment (and the Fourth Amendment) in peril of similar “re-interpretation”. Does the First Amendment guarantee of assembly apply only to state legislatures?

At the most basic level, the arguments for censorship under the First Amendment and the arguments for “gun control” under the Second are the same. Both involve prior restraint on liberty, and both rest on a paternalistic assumption that the general public cannot be trusted to exercise their liberty wisely. Underlying both is the implication that there are certain officials of the state, censors in the case of the First Amendment, and the police and military in the case of the Second, who may exercise the liberties which are denied to the people (watching and reading what is otherwise forbidden, or carrying arms in defense of themselves and other citizens) and who can be trusted not to abuse that power, or be corrupted by it, in ways which their fellow citizens (mere mortals that they are) cannot. In effect and in fact, to defend censorship, or to defend “gun control,” is to assert that there ought to be some citizens who are “more free” than others, and that second-class citizenship for all but a select few is permissible. Such elitism, obviously, has no place among those who value equality before the law as a political ideal, or as the first proposition of the American republic.

This is just a very small portion of the overall text. Lots of interesting points in there…

Tejota · August 23, 2001, 5:19am

Even though the SC has not given a unequivical answer to the question of whether the right to bear arms is personal or collective. That doesn’t mean that this is still considered to be an open question by the legal community in general.

It is considered a relatively settled matter of law that the right to bear arms is collective, not personal. The decision in US v. Miller makes no sense if this is a personal right, the fact that the SC did not specifically address the question is irrelevant. Their decision rules out a literal interpretation of the world ‘people’ to mean ‘individual’.

ExTank and Anthricite, you are pissing into the wind here. Given the PR might of the NRA, I have no doubt that you can find thousands of quotes that wish otherwise. But the members of the legal community who actually agree with them are the minority.

ExTank I asked this very question a few months ago in another thread, and you mislead me. I applaud your consistency, but I’ve done my own research since then.

Also, ExTank I’m disappointed that you choose to hijack your own novel thread idea idea back into the tired old debate that really already been decided against you by the SC.

Una_Persson · August 23, 2001, 11:42am

Is what you are saying that one, single decision, against all history and historical basis, is what it takes to re-define the words “the people” for one embarassing Amendment?

Outside of that very odd (IMO) decision of the SC, what historical basis is there when looking at the writing of the Constitution to determine that it is not a personal right? What real evidence is there to assume that it was not meant to be directed towards the individual?

Zoff · August 23, 2001, 12:35pm

No. Legal scholars who believe it’s an individual right are in the vast majority. Below are cites of law review articles from 1980-1997 that support the individual right view.

Nicholas J. Johnson, Shots Across No Man’s Land: A Response to Handgun Control, Inc.‘s Richard Aborn, 22 Fordham Urb. L.J. 441 (1995); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995); Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States’ Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995); James E. Ely, Jr., Book Review, 52 Wm. & Mary Q. 212 (3d series) (1995); Jeremy Rabkin, Constitutional Firepower: New Light on the Meaning of the Second Amendment, 86 J. Crim. L. & Criminology 231 (1995) (book review); Leonard M. Levy, Original Intent and the Framers’ Constitution 341 (1988); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131 (1991) ; Robert J. Cottrol, Second Amendment, in The Oxford Companion to the Supreme Court of the United States (Kermit L. Hall ed., 1992); Robert J. Cottrol & Raymond T. Diamond, Public Safety and the Right to Bear Arms, in After 200 Years: The Bill of Rights in Modern America (D. Bodenhamer & J. Ely eds., 1993); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Edward F. Leddy, Guns and Gun Control, in Reader’s Companion to American History 477-79 (Eric Foner & John A. Garrity eds., 1991); Stephanie A. Levin, Grassroots Voices: Local Action and National Military Policy, 40 Buff. L. Rev. 321 (1992); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund, The Second Amendment, Political Liberty and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987); Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hast. Const. L.Q. 285 (1983); William Marina, Weapons, Technology and Legitimacy: The Second Amendment in Global Perspective, in Firearms and Violence (Donald Kates ed., 1984); Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 L. & Contemp. Probs. 125 (1986); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994); David E. Vandercoy, The History of the Second Amendment, 28 Val. U. L. Rev. 1007 (1994); Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995 (1994)(book review); F. Smith Fussner, Book Review, 3 Const. Commentary 582 (1986); Joyce Lee Malcolm, Book Review, 54 Geo. Wash. L. Rev. 452 (1986); David Wootton, Disarming the English, London Rev. Books, July 21, 1994, at 20-22; see also Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993); James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 328 (1990); Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms, 139 U. Pa. L. Rev. 1257 (1991); John Choon Yoo, Our Declaratory Ninth Amendment, 42 Emory L.J. 967 (1993); Glenn H. Reynolds, The Right to Keep and Bear Arms Under the Tennessee Constitution: A Case Study in Civic Republican Thought, 61 Tenn. L. Rev. 647, (1994) (extensively discussing the Second Amendment in relation to the Tennessee Constitution);Thomas McAfee & Michael J. Quinlan, Bringing Forward the Right to Keep and Bear Arms: Do Text, History or Precedent Stand in the Way?, 75 N.C. L. Rev. ( 1997); Brannon 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); Nicholas J. Johnson, Plenary Power and Constitutional Outcasts: Federal Power, Critical Race Theory, and the Second, Ninth, and Tenth Amendments, 57 Ohio St. L.J. 1555 (1996); Inge Anna Larrish, Why Annie Can’t Get a Gun: A Feminist Perspective on the Second Amendment, 1996 U. Ill. L. Rev. 467 (1996); Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. (1997); Michael J. Quinlan, Is There a Neutral Justification for Refusing To Implement the Second Amendment or Is the Supreme Court Just “Gun Shy”?, 22 Capital U. L. Rev. 641 (1993); Gregory Lee Shelton, Comment, In Search of the Lost Amendment: Challenging Federal Firearms Regulation Through Utilization of the “State’s Right” Interpretation of the Second Amendment, 1995 Fla. St. U. L. Rev. 105 (1995); T. Markus Funk, Is the True Meaning of the Second Amendment Really Such a Riddle?: Tracing the Historical “Origins of an Anglo-American Right,” 39 Howard L.J. 411 (1995) (book review).

Joe_Cool · August 23, 2001, 2:44pm

Forgive the crosspost, I couldn’t decide which thread to put this in, so I put it in both.

No problem. That is, provided you acknowledge that they were also used to RESIST oppression.

Who gets the credit for building a house - the hammer, or the carpenter wielding it? Who carved the David statue - Michaelangelo, or his chisel? Who painted The Last Supper - was it Da Vinci or his paintbrush? Who was guilty for so many killings and eating the victims - Jeffrey Dahmer or his fork?

Pretty silly questions, right? And when somebody is stabbed brutally, it’s a crime committed by a violent or deranged person. But when sombody is shot to death, it’s a shooting, not a crime committed by a sick person. Why?

No, as has been ably pointed out already, well-regulated in that context does not mean under government control. The Army was already under government control, and the militia were civilian citizens fighting with their own weapons for defense of country.

On the contrary, if you could walk up to an armorer in 1776 and tell him you want your rifle regulated, do you think he would give you some rules telling you whether and where you could use it? No, he would sight it in, make sure the action is oiled and working properly, etc. “Well-Regulated” in the sense used in the Constitution means properly equipped.

A well-regulated militia is the whole of the people capable of bearing arms, properly equipped, willing and able to fight.

I invite you to read this article, which is testimony before the Senate by Professor Eugene Volokh of the UCLA school of law.

Some excerpts:

The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a “right of the people,” not a right of the states or a right of the National Guard. … These rights are clearly individual – they protect “the right of the people” by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right.

What about the seemingly odd two-clause construction, … ? It turns out that there’s nothing odd about it at all. During the Framing Era, dozens of individual rights provisions in state constitutions were structured the same way, providing a justification clause explaining the right, and then an operative clause securing the right. The 1842 Rhode Island Constitution’s Free Press Clause, for instance, reads

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject, being responsible for the abuse of that liberty . . . .

Just as with the Second Amendment, the second clause secures a right, while the first justifies it to the public.

Additionally, Prof. Volokh had this to say on “Well-regulated”:

And

Can anybody seriously make the claim that this says only people employed by newspapers may publish their sentiments?

How about this one?

I really don’t see how this is so difficult to understand. Because of X, Right Y shall not be infringed. X does not Qualify Y, it explains it.

And since gun control advocates so enjoy saying how “Everybody knows” that the Supreme Court has consistently ruled that the 2nd Amendment is a collective right, and that the weight of law is behind that statement (Tejota, are you paying attention?), I for one would like to see some citations for that statement now. I’m tired of citing case after case of Supreme Court decisions that simply get ignored by the opposition because they don’t support their point of view.

So I’m looking forward to what you guys can come up with. And I don’t mean links to HCI or the Brady site. Show me Court decisions.

Una_Persson · August 23, 2001, 4:24pm

I too am waiting for historical evidence that shows that the intent of the Founders and writers of the Constitution was to refer to the “the People” collectively in just that ol’ embarassing Second Amendment.

UncleBeer · August 23, 2001, 6:09pm

I did. With hard numbers. Just an hour and a half before you made this statement. Scroll up and read. I’ve also answered this question in more than one other debate on this board. I also note that you have failed to answer this question yourself. Please do so or I shall be forced to conclude you are not debating in good faith. And while you’re at it, I, too, would like to see the historical evidence that Anthracite, and others, are asking for.

The ball’s in your court.

ElvisL1ves · August 23, 2001, 8:54pm

UncleBeer, are you referring to your post that seems to suggest (A) 605 murders per year aren’t criminal-vs.-criminal, and (B) 12,000-odd others are acceptable because the victims are, well, criminals and therefore must have deserved to die? It wasn’t clear that you meant to quote those rates as being “acceptable”. If so, I’d like to hear you explain the moral underpinning for it. My intention in asking was to understand how gun-rights advocates, yourself obviously included, can deal with the rights-vs.-rights dilemma other than with denial, and I’m still waiting.

As for “historical evidence” of the Founding Fathers’ intentions, read the friggin’ Constitution - just the first 3 words are enough. Once you’ve digested that, the rest of the Preamble makes a good read. Then you’ll be ready to possibly digest the entire Second Amendment.

The cites provided above by Anthracite are all later commentary, written as advocacy for a particular political position. Some evidence that you 2 have considered other views, and even hold your own enough to explain them succinctly, would be welcome, but by now is not expected.

Joe_Cool, if the police are NOT there to provide protection, what do you think their job is? Please.

Tejota, I fear we’re both wasting our time here with people who do not seem interested in even trying to understand differing views, much less admit any possible reasonability to them. But when even the moderator takes that position to the extent of accusing those who disagree with him of failure to use “good faith”, it’s time to let go.

pldennison · August 23, 2001, 9:06pm

Is this going to be what you do every time someone provides a Supreme Court citation which demonstrates that you are incorrect? I mean, I guess the presumption is that we should listen to you rather than to them, right?

RTFirefly · August 23, 2001, 9:10pm

If the right to own guns is individual, how come the D.C. gun ban (that the pro-gun side of the issue regularly lampoons) is still in effect? (It is, right? Hadn’t heard of its repeal.)

It’s hard to believe the NRA wouldn’t have taken that one on if they felt they had a winning hand.

RTFirefly · August 23, 2001, 9:29pm

Joe Cool, you asked:

Because if someone’s coming at me from a few yards away with a knife, a bludgeon, or whatever, I as an unarmed and only moderately fit middle-aged guy, have an incredible array of options to keep myself alive. I can try to outrun my assailant; I can grab lamps and chairs (if indoors) or tree limbs (outside), and use them to fend him off or bludgeon him; I can climb a tree and kick at him from above if he tries to climb up to kill me. I’m pretty comfortable with my survival chances in such a situation.

If they’ve got a gun, anything I do depends on their being unable to use the gun proficiently; all I can do is try to present an erratically moving target until I can get something solid in between me and my assailant. And if his reflexes are good enough to keep his gun pointed at me as I try to find cover, or if he’s just plain lucky enough to pull the trigger while I’m on a line with the gun barrel, I’m dead.

I have to ascribe my drastically different survival chances in these two scenarios to the gun. So, yes, it’s at least in significant part a gun killing.

Anybody know the name of the guy who opened the bomb bay at Hiroshima, or Nagasaki? Of course not: it was the bomb that killed. Consider the gun to be one nontrivial step on the spectrum from a knife to atomic weaponry.

UncleBeer · August 23, 2001, 9:44pm

No. That’s not the post I’m referring to. You said at 4:54pm on 8/22 “I’m simply looking for the question to be addressed honestly.” I had at 3:28pm on 8/22 said

I don’t know how much more explicit I can be. And yes, criminals who have chosen to engage in violent behavior can kill as many other like-minded criminals as they care to. I really don’t give a fuck. They’be been allowed to make the free choice of what they wish to use their guns for, why should I no be allowed to have the same free choice? I’m afraid I do not see any “rights vs. rights dilemma.” Unless it the one you advocate, namely honest and peaceful (was that too Libertarian?) citizens should not be allowed to defend themselves using the same tools as their agressors. That’s the dilemma.

As for your advice we read the first three words of the Constitution, mine says “We the people, …” Seems to imply individuals rather than a collective. What’s your point? And by what process do come to the conclusion that the words, which express the reasoning process, of the originiators of the Constitution are no longer valid? That’s crazy talk.

RTF, I honestly don’t know. Lemme see if I can dig anything up. It is kinda strange.

Una_Persson · August 23, 2001, 9:47pm

Relative to the evidence that everyone has presented here, firing back with a simple “read the Constitution” as a rebuttal would be funny, if it weren’t so damn tragic.

Uh…no, the cites are not “all” later commentary. Several actual historical contemporary references were provided. And please present your case that we have not considered other views, or would not consider the alternative evidence (still forthcoming, I hope) as to the true intention of the writers of the “friggin’” Constitution.

It seems to me that the only way to see if we have and can consider other views on the historical basis of the creation of the Second Amendment is to present those alternative views here. So…we will wait now for those.

Una_Persson · August 23, 2001, 10:03pm

Well, RT, let’s be frank here (although some people will accuse me of being otherwise, then run off…) IMO it is because the NRA et al fear that the Supreme Court will rule against them, based on a perceived “liberal judicial activist slant”. Is this a valid fear? Well…IMO, perhaps not. While the SC has recently been strongly split down liberal/conservative ideologies on many cases, it seems to me that the evidence as to the true intent of the Second Amendment is really very clear and unambiguous. And if the SC rules against the evidence, and finds that the Second Amendment recognizes only a general right, or none at all…well, so be it. At least we all will know where we stand, and these endless debates can be put to rest somewhat.

On that issue, as to what the Supreme Court would decide, we could look to Printz vs. United States, from Supreme Court Reports v.117 p.2365, United States Reports, Lawyer’s Edition 2nd series v.138 p.914

Justice Clarence Thomas’ concurring opinion in this case, which found unconstitutional the federal mandate for local law enforcement officers to perform Brady Act background checks, contains some hints about the kind of cases the Court, or at least Justice Thomas, expects in the future. In an extensive aside, Thomas observes that, like the First Amendment, “[t]he Second Amendment similarly appears to contain an express limitation on the government’s authority.”

The Court, he writes, "has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to ‘keep and bear arms,’ a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections.

Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’"

UncleBeer · August 23, 2001, 10:34pm

Something else that occurs to me in regard to the DC handgun ban, is that it is a local law, the Constitution deals only with federal lawmaking. States and other governing bodies may be free to pass whatever legislation they wish that does not violate their own charters. There are several cities I believe that have outlawed the transfer and/or possession of handguns, Rockford, Ill comes to mind; how about NYC? What’s their deal?

Does anyone know the actual specifics of the DC law? Does it ban handgun posession outright? Or does it only ban the sale and transfer of new and/or used handguns? It’d probably be a good idea to know exactly what we’re discussing.

Captain_Amazing · August 23, 2001, 10:40pm

I’m not going to comment on the whole “guns are wonderful, and you pinkos want to take away our freedom” vs. “guns are evil and you whackos want to machine gun young children” debate, (I’m dodging that bullet <—See, joke…please don’t hurt me) but commenting on the OP, Ex-tank, wouldn’t it make sense, like BF said, that location determines your gun politics more than party? I’m I’m a democrat in a district where a lot of people have guns and are big gun fans, it would make sense for me to be pro-gun. Likewise, if I’m a Republican somewhere they hate guns, I’d probably be anti-gun.

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