High Court to rule on gun bans

Great Debates
61

[QUOTE=ElvisL1ves]
:dubious: Already pointed out. That’s what it’s called these days. Sheesh.
[/QUOTE]
Well, if you change the meaning of “the people” to “the government”, then I guess this is a valid point. Otherwise one would have to be acting deliberately obtuse to think the government would need to guarantee its own right to arm soldiers.

[QUOTE=ElvisL1ves]
Inevitably follows from being “necessary”. Sheesh.
[/QUOTE]
So why does this amendment exist? Why not “A well regulated militia, being necessary for a free state, shall be formed”?

[QUOTE=ElvisL1ves]
When functioning as a militia. A well-regulated one, at that, not the “unorganized militia” thingie that somebody dreamed up once.
[/QUOTE]
No, it does not say that. Read it again - a militia is necessary, and so the peoples right shall not be infringed.

[QUOTE=ElvisL1ves]
Irrelevant to the Constitutional question. But perhaps you can extrapolate how many more people would die from crimes of passion, suiides, and accidents if it weren’t in place, if you wish to discuss the matter honestly, that is.
[/QUOTE]
Perhaps if I was with an anti-gun group I would be happy to pull imaginary numbers out of my ass in order to scare soccer moms, but all I have is that the murder rate in DC is one of the highest in the country, so the 20+ year handgun ban appears to me to be ineffective.
If the murder rate in that city suddenly plummeted and stayed low, the anti-gun activists would have some ammunition.

62

[QUOTE=Stranger On A Train]
Philosophically, I’d lean toward the more libertarian mentality of less government regulation, but I also recognize that there are legimate reasons to restrict public access to certain classes of weapons or carry in certain places.
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I had to stop, as always, to read a **Stranger On A Train ** post. I was especially (and pleasantly) surprised to find one in this thread. And to top it all off, I find that you lean toward liberalism. A veritible hat-trick for me! :slight_smile:

But I did want to clear up for those lurkers who may not know that liberals (or libertarians) do not advocate “less government regulation” per se, but rather less government coercion. There are certain things — specifically initial force and deception — that a government should strongly regulate against. It’s just that regulations should not be frivolous or deny people the rights with which they were born.

Thanks for your time.

63

Another small question. How can the National Guard which can be federalized on the order of the President and even deployed in wars overseas, be considered the traditional militia that the founding fathers envisioned?

64

By the Militia Act of 1903 and the National Defense Act of 1916.

65

[QUOTE=jtgain]
Another small question. How can the National Guard which can be federalized on the order of the President and even deployed in wars overseas, be considered the traditional militia that the founding fathers envisioned?
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It can’t and it isn’t. The idea of the National Guard as the militia is a fiction promoted by people who wish to restrict gun ownership. Some years back I was in the National Guard and ALL I heard at the time was “One Army.” i.e. The regular Army, the Army Reserves, and the Army National Guard were all one, single organization. NG the militia? Like hell.

66

[QUOTE=Bobotheoptimist]
Well, if you change the meaning of “the people” to “the government”, then I guess this is a valid point.
[/quote]
It’s not a change. Look at the first 3 words of the Constitution. Who the fuck do you think the government of a democracy is, if not an organization established by the people? :dubious:

You’re fudging over the original intent, the realm you’ve chosen, in which the states retained the ultimate power over the federal government (that’s been obsolete since the Civil War, of course, but try explaining that to the Federalist Society ideologues). The states had protection against other states using superior control over the federal machinery. Now, it doesn’t matter.

That is the key meaning, really, even though the gun-freedom types prefer to dismiss it entirely. The right to bear arms was created to facilitate the establishment (and regulation) of the state militias, which was the fundamental purpose.

67

[QUOTE=Scumpup]
The idea of the National Guard as the militia is a fiction
[/QUOTE]

68

[QUOTE=ElvisL1ves]
By the Militia Act of 1903 and the National Defense Act of 1916.
[/QUOTE]

That’s my point. How is an agency under the full control of the federal government, and part of the U.S. Army a “militia” as understood by the framers..

69

If a complete gun ban would save thousands of lives every month, would that make it more Constitutional, less Constitutional… or would be be irrelevant to the issue of constitutionality?

70

And I should point out that this idea of a “militia”, to me, is a peripheral one. Could someone please show me the restrictive language in the second amendment that the “right of the people to keep and bear arms” applies ONLY and EXCLUSIVELY to militia use?

That may have been the founders’ primary reason for protecting a person’s right to arms, but where it said that this is the ONLY valid reason for it, and somehow implied that if we federalize a state militia, we can take away the right to bear arms?

71

[QUOTE=Bricker]
If a complete gun ban would save thousands of lives every month, would that make it more Constitutional, less Constitutional… or would be be irrelevant to the issue of constitutionality?
[/QUOTE]

IMHO, it would make no difference if it saved 1000 lives per month, or cost an additional 1000 lives per month.

If it saved lives per month, that may be an argument for an amendment to the constitution, but means nothing as to what is already permitted..

72

[QUOTE=jtgain]
IMHO, it would make no difference if it saved 1000 lives per month, or cost an additional 1000 lives per month.

If it saved lives per month, that may be an argument for an amendment to the constitution, but means nothing as to what is already permitted..
[/QUOTE]

You win the kewpie doll!

73

[QUOTE=Bricker]
You win the kewpie doll!
[/QUOTE]

Uh oh. What is the kewpie doll? :dubious:

74

I’m aware of those laws. By federalizing the militia, they caused it to cease to be the militia as the framers envisioned militia. Eliminate it…absorb it…doesn’t matter what you want to call it. The National Guard (One Army) is not what the could be construed as militia in the sense the founders meant the word. The militia acts which eliminated true militia weren’t passed with the idea of it being a way to undermine the 2A, it’s just being used that way now by those who wish to disarm the citizenry.
Further, I don’t consider the Constitution as the be-all-and-end-all. It’s flawed. It’s been changed. it’s been ignored. My right as a free man to arm myself is not controlled by what that document says at any given moment nor in how the politically appointed clods on the bench think right now.

75

It seems to me that this is a simple federal vs state issue. The 2nd amendment was set up so that the federal government could not prevent the states from forming militias-- those militias being necessary to defend the states against the possibility of a tyranical federal government.

This seems rather antiquated to us (despite the numerous times we’ve been warned around here that Bush has created a fascist state) in the same way that the 3RD amendment does: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” But they must have been issues of considerable importance at the time they were drafted.

What to do now? Why not just leave it to the states, and have the feds back off. From a practical standpoint (ignoring whether you’re an originalist, a textualist, or believe in a living constitution), is there some crying need for the feds to step in and save the states from their foolish ways? Are the people begging for the federal government to override their state and local laws regarding gun ownership? Is there something about gun ownership that most people are repulsed by, thinking it just morally wrong? I don’t see that any of those things ring true. So let’s just leave it to the states to care of.

Gun laws, unlike some other laws, really do need to reflect the community to which they apply. A ban on handguns in NYC or DC might be the way to go, or an outright ban on firearms in general might make sense for folks in SF, but probably not in North Dakota or Montana.

76

[QUOTE=John Mace]
What to do now? Why not just leave it to the states, and have the feds back off.
[/QUOTE]

Because gun control advocates will lose their only avenue in their attempts to have them banned. What you’re proposing is almost exactly what we have now, where every state can essentially regulate weapons the way they choose to. But the Brady Campaign won’t find it nearly as expedient to try to push 50 individual gun bans through as the will to push one big one through the Federal government.

The same, of course, goes for the NRA, but they want the status quo, so the ground is much firmer under their feet.

77

[QUOTE=John Mace]
It seems to me that this is a simple federal vs state issue. The 2nd amendment was set up so that the federal government could not prevent the states from forming militias-- those militias being necessary to defend the states against the possibility of a tyranical federal government.

This seems rather antiquated to us (despite the numerous times we’ve been warned around here that Bush has created a fascist state) in the same way that the 3RD amendment does: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” But they must have been issues of considerable importance at the time they were drafted.

What to do now? Why not just leave it to the states, and have the feds back off. From a practical standpoint (ignoring whether you’re an originalist, a textualist, or believe in a living constitution), is there some crying need for the feds to step in and save the states from their foolish ways? Are the people begging for the federal government to override their state and local laws regarding gun ownership? Is there something about gun ownership that most people are repulsed by, thinking it just morally wrong? I don’t see that any of those things ring true. So let’s just leave it to the states to care of.

Gun laws, unlike some other laws, really do need to reflect the community to which they apply. A ban on handguns in NYC or DC might be the way to go, or an outright ban on firearms in general might make sense for folks in SF, but probably not in North Dakota or Montana.
[/QUOTE]

It’s an interesting argument, but the 2nd amendment is one removed from the first.

Perhaps I could argue that California should have freedom of religion as we know it today, and Alabama could mandate Christian worship attendance punishable by death for violations.

The Court has a long history of incorportation the BOR as applicable to the states as well.

And let’s not even start with abortion and penumbras of amendments that weren’t orginally applicable to the states, but are incorporated to the states.

If penumbras are incorporated, then why is plain text not incorporated?

78

[QUOTE=jtgain]
It’s an interesting argument, but the 2nd amendment is one removed from the first.

Perhaps I could argue that California should have freedom of religion as we know it today, and Alabama could mandate Christian worship attendance punishable by death for violations.

The Court has a long history of incorportation the BOR as applicable to the states as well.

And let’s not even start with abortion and penumbras of amendments that weren’t orginally applicable to the states, but are incorporated to the states.

If penumbras are incorporated, then why is plain text not incorporated?
[/QUOTE]

It could be. In fact, the 2nd amendment cries out to be incorporated more than, say, the 1st. The latter says “Congress shall make no law…” whereas the former talks of the rights of the people, independent of Congress. And one could certainly use the same arguments for incorporation that have been used for many of the other rights. I don’t see the ordering of the amendments as having any significance, btw.

I guess I’m not much of a fan of incorporation in general. And since I’m not in favor of incorporating such penumbras, I find it easier to argue against incorporation in general, rather than pick and choose per my own political biases. The states should have more leeway in governing than the feds-- we are supposed to have a federal system of government, aren’t we?

79

[QUOTE=John Mace]
It could be. In fact, the 2nd amendment cries out to be incorporated more than, say, the 1st. The latter says “Congress shall make no law…” whereas the former talks of the rights of the people, independent of Congress. And one could certainly use the same arguments for incorporation that have been used for many of the other rights. I don’t see the ordering of the amendments as having any significance, btw.

I guess I’m not much of a fan of incorporation in general. And since I’m not in favor of incorporating such penumbras, I find it easier to argue against incorporation in general, rather than pick and choose per my own political biases. The states should have more leeway in governing than the feds-- we are supposed to have a federal system of government, aren’t we?
[/QUOTE]

I’m not a fan of incorporation either, but since we have a 30+ year history of the Warren Court doing such, then why should we afford the BOR to criminal scumbags, but let law abiding citizens be without self protection in guns?

Even Scalia, in a speech I saw about a year ago, said that he thought that incorporation was not valid, but he was willing to use “stare decisis” to let that stand.

80

[QUOTE=Bobotheoptimist]
As a wise man once said
[/QUOTE]
I would further quote:

Virtually all the states with “shall issue” laws now require gun owners to pass safety and proficiency courses to get a carry permit. Indeed, I would gladly see a “well-regulated militia” of handgun owners having to pass the same shoot/don’t shoot target courses police officers do (those cardboard targets that pop out at you and give you 1/2 second to determine if it’s an armed robber or a kid with a water pistol), and in times of dire emergency being called as police auxillaries. But as others have said upthread, if you want to “regulate” guns out of existence, amend the Constitution; because asserting that private possession of firearms is incompatable with a civil society is a revolutionary break from past precedent.

BTW: In DC, you can still “own” a handgun, in the sense that you can have title to some pieces of metal, provided you don’t assemble them into a working gun even in your own home :rolleyes: