Guns, Freedom and Power

Great Debates
1

This is certainly an ongoing Great Debate, with more than just two simple sides to address. I propose this thread for everyone to share their position, support it with statistics where possible or necessary and try to civily and open-mindedly discuss the issue.

There is no starting premise except these:
In America people own guns and some people can carry guns.
People die, either accidently or purposefully from gun use.
Peoples lives are saved from gun use, often without a shot being fired.
Some people think we need more laws controlling guns.
Others think we have too many laws already.
Yet others think things are fine as they are.

All reasonable arguments are welcome to start the debate, but if they become just arguments instead of debates (e.g.: a poster refuses to respond to a reasonable challenge, resorts to personal attacks, misdirection or just insists that it’s their way or the highway) I recommend we ditch them.

I watched a Great Debate Thread similar to this one destroyed by such nonsense, an there’s lots of us that would really like to debate this issue civilly.

Peace?

2

Pardon me, but what question, exactly, are you posing for debate? “Should the United States have gun control or not?” That’s just too broad for meaningful discussion here, because we’ve covered it too many times. Ask something more specific.

Let me help. Here’s a narrower question: My own view is that the Second Amendment should be repealed. I am not endorsing any particular program of gun control; I just think the whole issue should be stripped of its constitutional protection and reduced to the status of an ordinary political issue, which the legislatures through trial-and-error experiments with different gun policies, and by studying how other countries have dealt with the same problems. Anyone care to weigh in on this? (Even this has been covered, by the way. I started a GD thread on it some time ago: http://boards.straightdope.com/sdmb/showthread.php?t=179347. But maybe somebody can add some fresh insights.)

3

Sorry, I meant, “which the legislatures could address through trial-and-error experiments,” etc.

4

Hey, that’s a good start.

I think repealing the second amendment BEFORE the research, experimentation and comparison is done is kinda jumping the gun though. (No pun intended, really!) Why fix it if it ain’t broke? And we are not sure it’s broke yet.

The kind of information that I’ve been getting indicates that liberalizing firearms laws (in specific, permitting easy access to law-abiding citizens for concealed carry) is actually seeing a reduction in violent crime in those jurisdictions where concealed carry is permitted.

On the other hand, those countries where firearms laws are stricter (England, Australia, Canada and Wales specifically), and where firearms have been ostensibly outlawed have shown an increase in violent crime (murders, rapes, burgularies, robberies) both where firearms are used and where they are not used in the crimes.

The “Assault Weapons Ban,” on the other hand, has not been proven to be effective, because the crimes *using those kinds of weapons * has not changed significantly. So I think that one should expire.

I’m against crime, but I do not currently own any firearms. I don’t believe in hunting, but that doesn’t give me the right to deny it to others. And I certainly don’t think we should disregard 200 years of tradition and culture without adequate evidence that it would be in our best interest. I haven’t seen any evidence that it is in our best interest, just opinion and rhetoric.

Peace.

5

The states have already done this. The vast majority of them offer the same constitutional protections of individual citizens the right to keep and bear arms. A look at the individual constitutions of the 50 states shows that many of them go even farther than the federal constitution with much less ambiguous language.

Since you claim no prior agenda vis-a-vis gun rights, would you suggest equal treatment for the many other rights guaranteed by the federal constitution? Why, or why not?

6

I originally posted this on another thread (that I think someone else mentioned that had been reduced to a shouting match) but I think it applies here, so pardon me if this is a rerun!

The ultimate reason behind the 2nd Amendment

This is a post that has nothing to do with “more people are killed in the US by guns than the world combined” or "they can have my gun when they pry it from my cold dead fingers. There are no statistics, and no cites. Just my thoughts about the Constitution and the rights it protects.

[soapbox] The 2nd Amendment is a written guarantee by the Federal Government of the United States that it will not take away the citizens’ right to protect themselves. Simple as that. The founding fathers knew nothing of assault weapons or homicide rates that would come 200 years later, and it doesn’t matter one little bit. Nor is the lack of Indians, wild bears, or any other 18th century threat a factor.

Why? Because the gun crime that IS the issue here is a violent act between individual citizens, and not between the the body of citizens called “the people” and the body known as the Federal Government.

The Bill of Rights is about protecting “the people” against the government, not from each other. The government can not to tell you what to say, what to believe, imprison you without due process, or any other personal freedom. It’s a contract, a written guarantee, that those things can’t happen, at least not legally. (Even though it does happen, it gives the citizens and the courts a basis from which to argue against it when it does.)

This is not paranoid delusion – protection from the government is exactly what the founding fathers had in mind, because they WERE the government. They knew exactly how corrupt and oppressive people could be when given power over other people. They knew that unarmed people were at the mercy of people who had weapons, and that throughout history it was always the government who had force on their side. So they put it in black and white that the Federal Government was going to give the power to the citizens instead of the other way around. The idea that guns in the hand of private citizens won’t be able to stand up to the forces of the federal government wasn’t an issue. The 2nd Amendment, in fact, ALL of the amendments in the Bill of Rights are a guarantee that scenario will never come to pass.

I realize that this entire post does nothing to solve the problems of gun crimes and the ridiculously high numbers of shooting deaths and injuries in the United States. It’s just to point out that repealing the 2nd Amendment is not the answer. You should NOT alter the Bill of Rights because the citizens can’t behave toward each other.

Otherwise, you should avoid the middleman and demand a Constitutional amendment against murder.

Please don’t mess with the Constitution. It’s not the solution.
[/soapbox]

Thanks for reading my high-minded, long-winded theory on Constitutional law!

EZ

7

That’s a pretty good post, EZ. And it bears repeating. Thanks for doing so.

8

Given that the courts almost universally reject the individual-rights view of the Second Amendment, this is almost exactly the situation we are already in, with Congress and the states having all kinds of discretion to do whatever they want with guns. The only thing that repealing the Second Amendment would do, in that respect, is to kill the argument that gun restrictions are inherently unconstitutional.

9

Almost universally? Is that like “totally unique?” Sounds like meaningless rhetoric to me.

This is not an attack on you, but on the language. A thing is either universal or it is not. A thing is either unique or it’s not. Modifiers used with absolute terms are meaningless and only serve as an emotional wedge in an argument.

Now I’ve seen lots of court rulings that it is an individual right (especially lately), and I’ve seen lots say that it isn’t. Fact is, there has been NO universal decision on that, and the rulings generally apply to specific cases. It’s still being argued. As to which side has the majority of decisions, I don’t know. Does it matter? Not until a final decision is made.

As far as the discretion of the states, you sure are right. Many states currently have laws that “infringe” the right to keep and bear arms.

10

Take a valium, dude. A handful, even. After all, weren’t you the guy who started this thread with a plea to peace, love, and debating the issue civilly? Sheesh.

As for the almost universal judicial rejection of the individual-rights interpretation, I refer you to the following, comprehensive collection of cases on point from the United States Courts of Appeals:

Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999).

United States v. Wright, 117 F.3d 1265 (11th Cir. 1997).

Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)

Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied 516 U.S. 813.

United States v. Hale, 978 F.2d 1016 (8th Cir. 1992).

United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).

U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948.

Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971).

Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942).
But see United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied 536 U.S. 907 (described by the dissent as “84 pages of dicta”).

11

Almost forgot Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), which reaffirmed the 9th Circuit’s collective-rights interpretation.

12

minty green, would you also provide links to the sites for those cites? It would be courteous and helpful for those of us whose law education consists largely of hearsay and innuendo. :smiley:

–SSgtBaloo

13

You can try Googling them, but the older ones are probably not available online for free. Here are a couple, however:

Silveira: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement

Emerson: http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm

14

Sheesh? :rolleyes:

[ol]
[li]“Dude,” I didn’t attack you. Please re-read my reply. :dubious: [/li][li]Valium? Gee, thanks! Where do I pick them up? :smiley: [/li][li]Even in Peace there may be disagreement. Just no war or battles. :cool: [/li][li]I never said ANYthing about Love!! :eek: [/li][li]Was it your impression that I was uncivil? If I came across that way, to you or others, I apologise. Honestly. It was not my intent. I value your input. :slight_smile: [/li][/ol]

Often in a debate sides use misleading language, either purposefully, to deceive (read some of Ted Kennedy’s stuff on guns), or perhaps in a fit of enthusiasm or misunderstanding of terms. If you had said, ‘overwhelming’ it might have caused me to go search the decisions myself or ask for a cite. Since I was an English Major in undergrad school, I learned to not add modifiers to absolute terms. I believe “universal” is an absolute and “almost universal” is meaningless. That’s all, no biggie. I’m also not the final authority on this, nor do I claim to be.

Thank you for those cites, I’m sure they will add a lot to this discussion. If I had more time, energy and links I’d probably dig up the opposite decisions as well; likely someone else already has them and will post them.

Peace.

15

There are no binding “opposite decisions.” That is the sum total of authority on the question from the U.S. Courts of Appeals. They override any and all contradictory decisions from the U.S. District Courts within their circuits. And while there are undoubtedly state court decisions interpreting their state constitutions to guarantee individual rights to bear arms, I am aware of no binding state court decisions holding that the Second Amendment guarantees an individual right to bear arms.

So, if you’ve got cases that say otherwise, put 'em on the table. In good legal citation form, please, since some people who’ve purported to do so in the past couldn’t be bothered–like 123 F.3d 321 or 456 P.2d 654, that sort of thing.

16

Addendum: Actually, I think there was a Texas case from the 1800s that suggested the 2nd Amendment actually guaranteed an individual right to own field artillery. I wouldn’t describe it as good law, but there you have it.

17

Affirming individual rights to keep and bear arms:

Note: Following redirects all point to the same web page containing many court decisions. Clicking on any one of them will get you to the same place. I did this in case a particular case, and not others, might be of interest.

United States v. Cruikshank, 92 U.S. 542 (1876).

Presser v. Illinois, 116 U.S. 252 (1886).

U.S. v. Miller, 307 U.S. 174 (1939).

United States v. Verdugo-Urquirdez, 110 S. Ct. 3039 (1990).

U.S. v. Emerson, No. 99-10331 (Fifth Circuit, 1999)

Cite: “All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans,” the court stated. "We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms…We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment.

Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071(S.D. Ala. 1989), aff`d, 894 F.2d 412 (11th Cir. 1990) (mem).

U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975).

U.S. v. Day, 476 F.2d 562 (6th Cir. 1973).

Please note that all the above redirects access the same web site, which has both pro and con decisions. I only cited the “is an individual right” decisions.

The site didn’t deal with issues past 1999.

You cite 11, I cite 9. Hardly “almost universal,” but I’m sure we can both find more, too. But I don’t think it will prove anything. (Other than it is an issue hotly debated. :smack: )

18

Pain in the ass. Not you, but READING all those pages.

Anyway, the first one was a State of California issue about “assault weapons” and nowhere in the second did I find a decision that the right to keep and bear arms is not an individual one. Perhaps you can direct me to where it says that? I don’t read legalese very well, and after awhile my eyes got blurry.

I’m not going to debate court decisions or post references thereto any more. It’s too easy to say, “This proves I’m right!” whether or not it actually does, and not everyone is going to read all those redirects. Let’s leave this for the courts and lawyers, OK? When a final, binding decision is made, I’m sure we’ll hear of it.

|

19

My beautiful post dissecting every single one of your cases just got swallowed by the fucking “Back” button. In the absence of nearly comprehensive analysis, suffice it to say that you’re completely wrong (with the exception of Emerson which I already cited above) if you claim that those cases establish an individual right to bear arms.

Cruikshank and Presser do not recognize an individual right. They hold only that the Second Amendment is a limitation on the federal government, not the states.

Miller does not recognize an individual right. It holds only that a weapon must be suitable for militia use to be eligible for any Second Amendment protection.

Verdugo-Urquirdez is not a Second Amendment case. It mentions the Second Amendment (and several others) and says that “the people” means the people individually, that that statement does not determine anything about the Second Amendment because the case does not involve the Second Amendment. Look up “dicta” in an online legal dictionary.

I already cited Emerson, which is the sole U.S. Court of Appeals case holding in favor of an individual right (though even that same opinion shows that the individual right is subject to significant limitations).

Gilbert Equipment does not recognize an individual right–it does nothing more than say that the amendment applies to “all Americans,” which tells us nothing more about individual vs. collective than “the People” does in the amendment itself. Indeed, the court clearly states that it “finds no absolute constitutional right of an individual to import firearms.” And even if the court had embraced an individual-rights interpretation, it’s a 1989 U.S. District Court case that would have been invalidated by the 11th Circuit’s 1997 rejection of the individual rights interpretation. That’s in U.S. v. Wright, which I cited above.

Swinton is again dicta, as even your NRA cite concedes. Even if it wasn’t dicta, it would have been overruled by the 10th Circuit’s holding in favor of the collective rights interpretation two years later in U.S. v. Oakes, which I cited above. Same thing goes for the Day case you cite (or rather the NRA cites, since it’s clear you haven’t bothered to read any of the cases you list), which once again does not address the individual/collective issue and which once again was quickly superseded by express authority of the same court holding that it’s a collective right, not an individual right. That would be in U.S. v. Warin, which once again I cited above.

When come back, read cases.
On Preview: Jeez, man, if you’re going to argue about the law, at least take the time to read the law. The individual/collective issue is practically the only thing they discuss in the whole darn Silveira case. But if you can’t take the time to read it, I’ll just quote a single sentence for you that makes it absolutely clear:

That’s on page 23 of the opinion, by the way.

20

But, doesn’t the fact that court would hear the issue that was raised presuppose that the right in question is an individual one? If it were not,in fact, an individual right, then the question of whether or not the weapon was covered would be moot as the individual in question has no protection.