How is the Constitutional Right to Bear Arms So Heavily Infringed Upon?

Great Debates
1

Sorry, title should say, “How is THE Constitutional Right to Bear Arms So Heavily Infringed Upon?”

Now stay with me here . . .
When you look at the First Amendment, it seems that any law which may impose limitations upon any aspect of it is heavily debated and carefully thought out, and as a society we try to have a philosophical basis which underlines the abridgments we may have on the freedoms of speech, religion, assembly, etc. Many of these discussions take place in the Supreme Court.

Meanwhile, the very next Amendment is another one which seems extremely important to the body politic. There is a special interest organization that spent 5 million dollars in 2017 alone ostensibly to promote Americans’ rights under the Second Amendment. And yet, it seems that as a nation, we are very willing to discuss limitations of the rights of individuals to bear arms.

For starters, it seems that in general we are willing to limit “arms” to small arms/individual weapons (I imagine it’s illegal for any individual to own an anti-aircraft missile, and I’m not sure of the legality of IEDs). Then, individual states have their own limitations, based on an individual’s legal/medical history and the weapon’s magazine size, upon other things. And, from my understanding, there have been only two Supreme Court Cases dealing with Second Amendment.
For an Amendment that many are passionate about and that captures much of the national debate, I find this very surprising. How is this allowed, legally and, for lack of a better word, philosophically? How is this justified?

Imagine if convicted felons or people with mental health conditions were no longer able to speak freely on certain topics, or incendiary speeches could only be of a certain length, or of a certain number. Or in order to start your religious movement, you needed to undergo a background check. Or your dangerous organization, like the KKK, was allowed to meet, but only at a limited frequency . . .

The obvious answer is that we have drastically curtailed the rights of Americans to bear arms because we realize that bearing arms can potentially carry huge, huge consequences, and the only way to responsibly do so is with significant caveats. But in this case, is our right to bear arms truly a Constitutional Right anymore? Haven’t we whittled it down to almost nothing? In the whole world of “arms,” many Americans are only allowed to own personal-use firearms of limited magazine. What is the philosophical basis behind that?

In order to be philosophically consistent, should we either open up the right to bear arms significantly (to the point where the limitations parallel our First Amendment limitations, at least with regard to degree) or repeal the Second Amendment altogether?

2

If every citizen has access to rifles, machine guns, mortars, rockets, arty pieces… that does not defend the body politic, that’s becoming Afghanistan.
Every country has restricted the ownership and use of weapons by private citizens. If you don’t, you cease to be a country.

3

It’s a classic case of “The Constitution is not a suicide pact.” If we were to do a strict interpretation of the 2nd, everyone would be allowed to own nuclear weapons, but the Supreme Court would never intepret the 2nd totally literally, and neither would 99% of the electorate.

4

Right, but have we restricted this right to such a degree that it, in spirit, basically ceases to be a constitutional right? Again, compare this with the First Amendment, and how circumspect we are, and how large the body of jurisprudence is, when it comes to abridgment of those rights.

For example, in one of the more famous First Amendment cases, Reynolds vs The United States, the Supreme Court determined that an individual’s right to religious liberty did not allow him to practice polygamy, and in the majority opinion they drew a distinction between religious thought and action based on that thought, and further extrapolated that if we allowed any and all action based on religious liberty, in the logical extreme we would have to permit human sacrifice if someone declared their religious mandated it.

So, as a parallel, what is the philosophy behind, say, allowing magazines of a certain volume and not others? Where is the careful thought behind this? Or is it just that no one has taken this particular issue before the courts?

5

It turns out private ownership of “arms” is not necessary for the continued existence of your republic (and in fact may be hurting it), so it can be whittled quite a bit and nothing bad happens as a result. That’s not true of the first amendment.

6

Of course it’s still a substantial legal right. All you have to do is compare American gun ownership laws with their equivalents in other western countries which don’t have a Second Amendment. You can see the large difference the Second Amendment creates.

7

The first amendment can be, is, and sometimes even should be curtailed. The government can punish you for yelling “Fire!” in a crowded movie theater just like they can punish you for converting a semi to an automatic.

We have the time, place and manner of our protests regulated by our government just like they can regulate the make, model and category of our guns. I don’t think anybody would argue that we don’t have the right to free speech and the right to bear arms despite that (or at least they meet the vague definitions laid out in the constitution).

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8

Your second amendment right is . . . wrong. Ergo impingements on it.

9

If the oppressive government comes against us with helicopters and a Swat team, will we be able to hold them off with a musket? Or even a hunting rifle, or the sort of small-magazine handgun that Pelosi wants to leave us with?

10

“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.”

The first thing to note is that the jurisprudence that actually asserts that this means “you can own a firearm for personal reasons” is about 10 years old. Before DC vs. Heller in 2008, this was not the default interpretation of the second amendment.

Another thing to note is that free speech is legitimately important for the existence of democracy, while the ability to own a gun is not. This is purely pragmatic, but pragmatics matter. As Steven Pinker would put it, free speech is fundamental*. Owning a gun, though? Shit, I live in Germany. Buying a gun would be really hard for me. But my country isn’t the one that has constant banana republic shit going on.

*On a side note, that bit at the start where disinvited commencement speakers and college speech codes are compared to censorship and murder has not aged well. Fuck, man.

11

Gestalt—I am 1000% certain that it is illegal to own an IED anywhere in the US.
Do not attempt to do so.

12

Free speech never killed a bunch of six year olds in a school, or party goers in a bar, or people enjoying music in a park.

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13

OP’s premise is so completely, utterly wrong it borders on farce.

Most of the other rights have very significant limitations. It is not “free speech” to vandalize someone’s house, to protest inside a courtroom, or to yell “fire” in a movie theater. You can’t threaten to kill someone, you can’t make kiddie porn, and you can’t tell the TSA you packed a bomb in your luggage. (And that’s just off the top of my head)

The other amendments all have significant bodies of jurisprudence surrounding what is reasonable and what is not. The Fourth and Fifth Amendments are good examples of this. There are huge volumes of case law explaining when the right applies and when it does not. (Eg Police need a Warrant to search a house, but not if they hear someone screaming inside.)

Compared to most other amendments, the Second Amendment is virtually untouched. The Supreme Court has almost never addressed the Second Amendment. It wasn’t until 2008 that they even needed to rule on the question of what the Amendment really meant with regard to militia vs civilians.

No Right is without its exceptions and its limitations. And - as others have mentioned - while some rights can be used for ill, nobody shot 900 people from their Vegas hotel room using their Free Speech.

14

Thread title fixed at request of the OP.

15

When we had a discussion on this several years ago, the information that was shared by US law Dopers was that to do so was to attract some *very serious * Federal charges.

16

Exactly. Compared to the other Bill of Rights Amendments, the Second hasn’t barely been addressed by the Supreme Court.

And those who address how Heller radically changed the Constitutional discussion of firearm ownership bring up a good point too–before that, the first clause of the amendment (the “well-regulated militia” part) was constitutional basis for firearm ownership.

I think a lot of people are (understandably) thinking that I am arguing that because of the Second Amendment, gun/arm rights in America should be vastly liberalized to stay in the spirit of our bill of rights.

But actually, what I’m trying to say (and probably, quite clumsily), is that we have hamstrung (and with good reason) the Second Amendment tremendously, far beyond what we have done with the rights provided in other amendments, and done so without much argument from the courts.

So I think in spirit, it seems that we as a nation have repealed the Second Amendment already. I think that to be philosophically consistent, we should actually repeal it (or at least heavily re-word it).

I know that even gun control advocates think of repealing the Second Amendment as a ridiculously fringe opinion. But I’m not sure why, particularly when it seems to me that it’s basically non-existent anyways. It doesn’t mean that the federal or various state governments would immediately swoop in to make all firearms illegal. We have a default, understood “right” to own/purchase most things without needing explicit constitutional protections. There’s no constitutional amendment protecting the right to own televisions, but if the government tried to ban them, within .01 seconds there would be a hundred lawsuits against any governmental body that did so. Or for a slightly less ridiculous example, perhaps one could look high-horsepower sports cars. These vehicles are not particularly gas-efficient, and the need for them by any individual can be questionable. Yet I very much doubt the government would ever try to ban them or even very highly regulate them as a class of vehicle.

I know the Second Amendment will never be repealed because inertia. But I don’t understand why saying that should be repealed is considered such an extremist position, when it seems to me that it barely exists already.

17

Why do you think this? I made the comparison above with gun ownership in the United States and gun ownership in countries like Canada, Britain, France, Germany, Australia, or New Zealand. I think pretty much everyone agrees that if the Second Amendment were repealed, we would end up with gun control laws that are similar to the ones in those countries. The argument is whether this would be a good thing or a bad thing.

18

You make a really good point. But I’m not sure that’s the case, simply because I think we culturally and economically are very different from those countries. For one thing, if we wanted to practically eliminate private gun ownership (like Britain) then we would have to engage in a tedious, expensive buy-back process (like Australia did–but even then Australia does allow private firearm ownership in various situations, as do some of the other countries on your list), and I’m not sure how much public enthusiasm there would be for such a measure.

In addition, I think in the United States we overall have a more laissez-faire attitude towards private ownership of goods. We have the highest rate of private vehicle ownership, and I imagine that has more to do with other countries taxes on cars and costs of licensing, rather than laws about car ownership per se (as well as the viability of public transport and household GDP).

So I don’t think we’d inevitably end up with a significantly more restrictive model of gun ownership if we repealed the Second Amendment, if nothing else because of inertia, special interests and a culture of overall less government regulation of private ownership.

19

Aside from the ownership of guns itself, it seems to me that the US is, culturally and economically, somewhere directly in between the UK and Australia. If gun control works in both of those places, why wouldn’t it here?

20

Actually, this already sort of happened once de-facto, *indirectly *through emissions regulations, the 55mph speed limit and “gas guzzler taxes”. This led to the passing of the 60’s “muscle car” and the period of terribly lame American cars of the 70s to 90s, until the makers perfected the ways to bring back high horsepower while complying with those rules. We didn’t regulate the very *existence *of the product, we regulated its externalities. Sure you can have your high HP car but it must meet EPA regs, not our fault it took Detroit a generation to get there.

But that is where you seem to be at odds with virtually everyone. Furthermore decisions such as Heller would be indicative of protection of the right being increased, rather than it having been despaired of. Are you arguing that if a particular right is considered still debatable and controvertible, then that means we don’t really consider it a “right”? Or rather, that if it hasn’t been a subject for constant aggressive defense against every modification, we consider it moot?

Just because it took until 2008 for the court to explicitly state that the right to be armed IS personal to the individual does not mean that this was not argued over for a lifetime prior or that it had been implicitly accepted that the right was a mere rhetorical flourish. Had that really been the case, there would have been a good chance of getting political support for a repeal or rewrite between the late 60s and early 80s taking advantage of fear of subversive radicals at the beginning and of rising urban crime thereafter. But instead it was felt that it was better to continue doing it by local statute instead of generally.

Let us remember the right of equal protection under law, one that virtually every rational person agrees is good and proper and so obvious it’s amazing we have to mention it, was in the constitution for nearly a century while all along the sociopolitical establishment allowed segregationism to continue unhindered. How we view “rights” ebbs and flows and that has always been so.