Nah, I live in a civilized country. Mocking Americans for their gun fetishism is just a hobby for me.
As I said earlier, it’s not brilliiant. Nor is it clever. It’s a simple idea. I put it to DrDeth like this: Are you implying that if we did get rid of 95% of the guns, that homicides would NOT decrease?
What do you think would happen in this case?
I am not bringing this up as a possibility in America today. This is merely a thought experiment. A “what-if”. And the morality I speak of, is finding some way to get rid of the unconscionable, preventable number of murders, and suicides made easier by guns, in our society. This is not my morality. It is all of ours. At least I hope so.
Your post did not claim that it would reduce homicides. You said that if you could pass a law that would work and actually get rid of 95% of guns, you could reduce gun homicides. That’s absolutely true but a tautology.
Even assuming for the purposes of argument that private ownership of guns results in a net harm to society, freedom comes at a price. If we repealed the Fourth Amendment and had random searches of homes or repealed the Sixth and denied people lawyers, we would definitely solve more crimes and make the country safer.
I think it most immoral to deny me or my family the ability to defend ourselves because others misuse guns. The police don’t station a squad car in my driveway. If someone tries to harm me, I need the tools to protect myself until the police arrive. To say that my family should be slaughtered in pursuit of an ivory tower goal of banning guns is highly immoral.
I do like this part
I also like the addition of this
It’s OK to ban M-16s because they are highly unusual for individuals to lawfully own. :rolleyes: Let’s ignore the fact that they’ve been banned from home ownership from the first day of their development, it’s OK to ban them because very few people own them. No shit Sherlock, actual military weapons have been banned for 80 years as dangerous and unusual, and you’re justifying the ban because, they’re unusual.
Here is one thing I can guarantee, if you made fully automatic weapons legal, there’d be nothing ‘unusual’ about them.
In terms of an answer to the question, Heller is fucking garbage. It’s a decision crafted not because of any logical reading of what the words of the 2nd amendment mean, but because 5 justices wanted to suck the NRA’s dick.
Frankly, I’ve lost my appetite for believing that a SCOTUS decision is anything but a political decision backed up by whatever legal mumbo jumbo they could shit out to support it.
I agree with everything you said except the last two paragraphs. The rationale for keeping M-16s illegal is absurd. I’m not saying that there could or should not be other reasons for keeping them illegal, but the “unusual” aspect is absurd at best.
You could argue just as easily that handguns were not in common use in Washington D.C. because they had been banned for 32 years. Every restriction on guns would thereby act as its own constitutional justification no matter how wrong or how right the restriction was.
Further, Scalia said, with no citations or support that “longstanding” bans on felons in possession or possessing guns in schools were not called into question by the decision. The felon ban was first enacted in 1968. Gun free school zone laws were first started in the 1980s. To call those longstanding is absurd.
Again, maybe all ex-felons should not own guns, or maybe there is no reason to ever possess a gun near a school. But there needs to be better reasoning than such a bald declaration. It is, IMHO, one of Scalia’s worst opinions, even though I agree with the result.
However, I read something recently that Kennedy insisted that these things be thrown in there in order for him to join the opinion. That makes sense. Those statements all have Kennedy-esque language.
However, to disagree with you that Heller was results-oriented, the rest of the opinion is solid. The right to self-defense and to bear arms predates the Second Amendment. Notice how it is written: It concludes, “the right of the people to keep and bear arms shall not be infringed.” It does not say something like, “the people are hereby granted the right to keep and bear arms.”
By its own terms, the Second Amendment recognizes a pre-existing right of people to keep and bear arms. The entire Bill of Rights was not included in the original Constitution and the reason was that as the federal government did not have the power (under the idea that it could only do those things in Article I) to establish a religion, to ban guns, to conduct searches without a warrant, etc. that there was no need for these amendments.
So, we don’t need to talk about militias and whether guns need to be militia weapons or a gun owner need to be a militia member. The right to keep and bear arms is one of the basic rights of free people and it exists even if the Second Amendment was repealed tomorrow.
It is a right that the history and traditions of our people recognize, much similar to the right of a fit parent to the care, custody and control of his or her minor children; or the right to marry. There is nothing in the Constitution that talks about parenting or marriage, yet it is something that is deemed so basic to liberty as defined by OUR traditions (not Finland’s or Norway’s or Japan’s) that it is protected nonetheless.
Parsing the Second Amendment’s language does not do anything in this area.
They may, or they may not. Maybe a resulting crime wave would ensue resulting in even greater homicides. Maybe not. I suppose I don’t think the answer is informative in any way. Because if we knew for certainty that overall homicide rate would go down, I’d still be opposed.
We could drastically reduce a number of negative outcomes if we wanted to. Deaths due to drunk driving could be virtually eliminated - ban cars. Ban alcohol. Lower the speed limit to 1 mph. We could eliminate drowning in pools - by banning pools.
We could eliminate recidivism by executing all people convicted of crimes. We could dramatically reduce obesity by regimenting certain diet and exercise routines. Lots of challenges that exist could be solved pretty easily if there was a will to do it. People don’t want to do that though. And people also don’t want to get rid of 95% of the guns.
No - I don’t share your morality. Your hope is for naught.
M-16’s aren’t banned, at least not federally so you’re incorrect on that point. And Heller wasn’t opining on M-16s or long guns at all, so there’s that too.
Perhaps one day a future court will realize the circular reasoning employed in the ‘dangerous and unusual’ rubric and correct it. But your question was asking why is it okay to ban military grade weaponry from the people. Was that rhetorical then? Because it’s addressed in Heller as you’ve quoted.
I think this is hair-splitting. They are effectively banned. I can only buy an M-16 if it was lawfully registered prior to 1986, and as there are a finite number of them, the price is astronomical. I understand the new models are select fire, but there is no full auto mode, just 3 round burst mode. Those were all made after 1986 and are banned.
So I can buy an old model, no longer produced, and limited to those already registered and pay a tax and an outrageous sum of money. I agree that is not a ban, but it is enough of a disincentive such that it acts like a ban.
I mean, if we put a $1 million tax on every gay marriage performed, would you argue that it was not a ban on gay marriage?
To your second point, it will be difficult for the Court to revisit the full auto ban. If I am a district court judge and a guy argues that the ban on his full auto is unconstitutional, I have to rule against him because Heller specifically decided the issue. The Court of Appeals would rule the same way. There would not be a circuit split. There would not also be a way to skirt the rule and hope to get a different ruling.
For example: abortion. Ohio is about to pass a law banning abortions after six weeks. You can make an argument (with tongue in cheek) that this is perfectly consistently consistent with Roe and Casey because of the state’s interest in preserving life. Then if you get to the Supreme Court you can make the same argument but throw in oh, btw, please overrule Roe and Casey.
I don’t know how you challenge a full auto ban without directly challenging it.
It is hairsplitting and normally I’d leave it alone, but if you say that they were banned from the first day of their development that’s just not true.
Perhaps. I don’t think Heller specifically decided the issue, the language with regard to M16s in Heller was dicta. Further, the strategy would not be to challenge the restriction on full auto because that would be fruitless. It would need to take a more round about form - attack the “unusual” part of dangerous and unusual. If it is decided that the rarity of an item due to heavy restriction cannot be considered in determining whether it is unusual, then modern day restrictions could be analyzed on a more what if basis - what if it weren’t restricted, then would it still be unusual? The counter to unusual would be if these weapons were in common use. That can be done with data, and if the floor of what constitutes common use be lowered, then that bar can be met.
The approach need not address full auto directly. It could address the sphere of what is protected and not protected, to create a new rubric that would result in full auto falling under the ambit of 2nd amendment protection as they should be. There are a lot of domino that would have to fall first. Another Justice or two in the next two years may be enough.
And that, friend, is the heart of the problem. While the civilized world, and all widely-accepted religious and moral systems and theories, and legal codes for that matter based there, hold the value of human life to be the most fundamental and precious thing there is, you “don’t share” that. It merely annoys you to keep seeing it brought up, doesn’t it?
Why, then, do you bother, on a board devoted to Fighting Ignorance? Is there any hope of you convincing the civilized world to change the foundations of our basic moral codes from revering human life to revering a tool for ending it?
Who’s truly in the wrong?
That would be very tough, but I see your point. However if your client argued that such and such gun was only unusual because it was banned, and I was representing the government, I would say “Judge, that’s exactly what we had in Heller. The Court did not give any weight to the idea that because M-16’s were effectively banned that played any part in making them unusual for the purposes of this legal analysis.”
I think the judge would have to side with me there, even if he thought the Heller analysis was a pile of crap. And throughout my relatively short legal career, I have never won or lost a case with the argument of that part of the opinion was mere dicta. Judges accept dicta as the rule. Only in law school is dicta not controlling. 
Heller devoted a substantial part of the opinion for the idea that gun ownership was not to be unrestricted and specifically singled out full autos for mention.
DirkHardly, when you get tired of punching that strawman, do please provide an example or two, anywhere *outside *the practice of interpreting the Second to mean what you wish it did, of the concept of a “prefatory” and “operative” clause even existing in grammar, or of a subordinate clause *not *modifying the main one. I won’t even ask you to explain why the framers thought it was important to define militias as a purpose but not self-defense or anything else. Okay?
I never get an answer to this question, but I’ll try again. Let’s say that a provision of the Bill of Rights read as follows:
“The writing of books, necessary to the preservation of a free society, the right of the people to keep and purchase quill pens shall not be infringed.”
Now, here we are in 2018 and nobody uses quill pens to write books. In your opinion, does that mean that the government may outlaw quill pens?
I say no. The purpose is clearly no longer applicable, but the direct statement of a right to keep quill pens remains. The Constitution has a mechanism for getting rid of things that no longer apply. But if you cannot get 2/3s of each House of Congress and 3/4ths of the states to amend the Constitution to outlaw quill pens, then there must be a reason for that.
And I’m going to miss the edit window, but I don’t think that the structure of my hypothetical amendment would suggest that you could only buy a quill pen if you were literate, or actually writing a book, or could show that it was a good book, or a book that furthered the goals of a free society.
The prefatory clause does not contain words of limitation such as “because” or “only” or “if.” And as I stated above, the amendment does not bestow a right, but recognizes a preexisting right (i.e. the right of the people to keep and purchase quill pens; the right of the people to keep and bear arms).
Even if we put a “because” or “only if” in there, the right remains the same. If we said that “Only because a militia is needed, the right of the people to keep and bear arms shall not be infringed.” When a militia is not needed, that does not turn into a positive grant of authority for the national government to deny the preexisting right of the people to keep and bear arms. It has no Article I power to do so. Repeal the Second Amendment and the right remains.
You haven’t explained a thing, UV. All you’ve done is repeat the claim that there is a special way of reading just that one sentence, with the intent of ignoring what the writers so fucking obviously meant by it, because they fucking *told *us.
The Constitution is a statement of intent, of principles, from which laws are supposed to derive. *Not *something that invites you to look for ways to pick apart, to cleverly get around the inconvenient parts to get the result you wish, in contravention to the intent.
So under my amendment, you believe the government could outlaw quill pens?
If by Military grade weapons, you mean crew served and high explosive and fully automatic weapons, then:
Because the Supreme Court has so ruled. Because it is something that affects only a super tiny number of people.
But of course you can own rifles that are pretty much as effective as a standard military rifle.
However, it appears you would like to legalize such weapons, and that’s OK by me…
Further, even if we only look at the half of the Second Amendment that you like, we see: “A well-regulated militia, being necessary for the security of a free state…” then are not all laws which hamper a militia invalid?
If these are statements of principle, then why have we drifted away from that? Why does my neighborhood not have a militia? Why cannot the guys in my neighborhood drill on the weekends so that we have a good militia? And a part of that drilling and training so that we can become well regulated would be that we own, carry, and train in the arms that will be “necessary” when called up for our militia duties.
Once again, this was answered in post #139 and you continue to ignore it. Instead you just declare any argument you can’t rebut as a “strawman” without any evidence of why it is. Not a real effective debate technique. But I’ll reiterate again for you and those following along:
The rules of grammar are not the only consideration in interpreting a law. In fact, they can be summarily disposed of if they seem to conflict with the known intent of the promulgating body. Did you read my example of a court changing an “and” to “or” and how it completely changed the reach and implications of the statute in question? How do you square that with your view of the role grammar plays in legal analysis?
The prefatory clause does indeed modify the operative clause, just not in the way you’re interpreting it. It does indeed give A REASON why the right to bear arms shall not be infringed. It does not logically follow that it is the only reason. And the rules of grammar are necessarily silent on this point because it has nothing whatsoever to do with grammar. We know the Framers contemplated other reasons because of the massive amount of evidence supporting it from outside the words of the document. The kind of evidence actual lawyers, judges, and legal scholars use when interpreting laws. You know, those people infinitely more qualified and experienced in such things than you are.
As to why they included the militia clause? They were founding a nation-state and having a military is kind of an important consideration when doing so. The very existence of the militia/military they envisioned depended entirely on the people bearing arms so they could be called upon for service. I mean the other Amendments have no such clauses explaining their inclusion in the BOR. By your logic that means they are somehow subject to even more limitations because not only do they not have listed every possible reason for their inclusion but have no reasons listed at all.
You see ElvisL1ves, I know I’m good at legal analysis and making legal arguments because it’s what I do. My wife is an attorney and a law professor as well and I know she respects my abilities (in that regard at least). I have many friends/acquaintances who are attorneys and quite a few who are law professors with impressive credentials of their own and I know they feel likewise about my skills and abilities. Or they’re fantastic liars, but that honestly seems unlikely. I mean a few, maybe, but not all of them.
You, on the other hand, offer arguments without any real evidence, have no legal qualifications whatsoever and seem to confuse you not understanding something based on that complete lack of knowledge and qualifications with it being incorrect. So what have you got again?
They’re banned because they’re banned, and it’s OK that they’re banned because so few people own them (because they’re banned).
Is this what passes for logic with you?
Pretty much as effective is what I could say about bolt action vs. semi-auto or 6 shot revolver vs. 12 shot semi-automatic pistol. I’m pretty sure you’re not OK with banning semi-autos in favor of bolt-action or revolvers even though they’re pretty much as effective.
I’m not interested in legalizing them I’m interested in understanding why pro-gun folks are so sedate about one kind of ban and hysterical about another kind of ban.
Even here, even you, the idea of legalizing military weaponry is tepidly supported. Where is the zeal, the lashing out at gun grabbers who took away your right to own an M-60?