If we were drafting a new Constitution today, should it include the 2nd Amendment or not?

Great Debates
101

So you agree that guns protect people? You just don’t think people should be allowed to protect themselves? And you think prohibiting self-defense makes us safer? I’m not sure I agree with your logic there.

The military protects our foreign policy interests and our borders from invasion. Police punish criminals after they’ve already committed their crimes. The government does not and cannot protect us from imminent local threats such as home invasions, battery, rape and murder. Do you disagree? How would our government, that you trust so much with your life, go about providing you with a bodyguard wherever you go, short of making everyone a cop?

Giving everyone the means and the right to protect themselves is the cheapest and most feasible way for a government to protect its citizens.

102

This is about how easy it is to kill people, not any of those other things.

If it were possible to simply google someone name and click Death, with the caveat that everyone knows you did it, would that make us safer? This is what gun types would have us believe, that if everyone’s armed, we’re all in a mini-Mutually Assured Destruction circumstance and crime would drop. I think that at a certain micro level, that ideal doesn’t work

Easiest real world example is that despite gun control laws, in pretty much every place in America, its legal for you to have guns in your home, and even if its not, its pretty easy to drive somewhere where you can buy guns with no questions asked. Crooks should assume people have guns in their home due to the 2nd Amendment. How many home robberies are there still? Why isn’t it zero, or close to zero?

103

[QUOTE=YogSosoth]
This is about how easy it is to kill people, not any of those other things.
[/QUOTE]

Naw, it’s about the freedom to choose, verse folks like you who want to take those choices away.

So, what you are saying is your fantasy world strawman of death buttons doesn’t work? Imagine that. :stuck_out_tongue: It was fairly amusing, however.

Because only in fantasy strawmen are anything 100%, or ‘zero, or close to zero’? Because people make different risk/reward calculations than your fantasy strawmen do? Because whether or not people making a cost to benefit risk assessment about needing a gun in their house could be 100% wrong in their calculation, and it still comes back to choice…and that’s the part you simply can’t seem to grasp?

I get it…I really do. Guns are scary to you (and others). For peoples own good, you want to save them from themselves and take the scary things away. You are just trying to help, and you think that people are stupid for not following your well meaning advice to save them from themselves and allow you to ban what they want, since it’s so obviously dangerous and scary. It’s the same impulse that gave up Prohibition in the 20’s…and it would work out approximately as well as that did if you ever got your fantasy wish…not that this is likely.

But this thread is about whether or not something approximating the 2nd Amendment (the Constitutionally protected right of the individual to keep and bear arms) should be in this theoretical new Constitution, representing the actual people of the US, not about your fantasies concerning death buttons or all out weapons bans.

104

Yes we should include a guarantee that the federal government can pass no law restricting guns in any way. But it should be clear that this guarantee does not extend to state and local governments.

105

I’ve always felt this was one of the weakest argument Second Amendment advocates make: that gun control laws are a bad idea because criminals would break those laws. Well, duh, that’s what makes them criminals.

When we enact any other law do we run it by criminals first to see if they plan on obeying it?

106

[QUOTE=Little Nemo]
I’ve always felt this was one of the weakest argument Second Amendment advocates make: that gun control laws are a bad idea because criminals would break those laws. Well, duh, that’s what makes them criminals.
[/QUOTE]

If you go back and read what I was responding too you’ll see I wasn’t so much making an argument as mocking an attitude.

No, but the thing is you may want to run it by the law abiding citizens first, since by enacting such laws by fiat (which is what several people here seem to want to do), you will make them defacto criminals. Again, it’s very similar to Prohibition, where a small but vocal minority managed to get something that a large percentage of the population did/does deemed illegal. Without a sea change in the attitudes of the average American, what would be accomplished is to make some percentage of the currently law abiding citizenry into criminals, or at least to have their activities be against the law, which doesn’t strike me as an optimal solution to the perceived problem.

I can understand where people are coming from in this thread who would re-write a new constitution to exclude the 2nd Amendment or language laying out a personal right, protected by the constitution to the ownership of ‘arms’. It allows them to circumvent the will of the people, after all, and lays open the path to eventual banning of them by any definition of ‘arms’ they choose to make, which has been the whole point of the anti-gun movement for decades now. It’s got to be appealing to those folks to at least fantasize in a thread like this on getting to simply wave it all away by fiat without having to bother with any of that pesky will of the people stuff, and without having to bother with trying a good faith and open and on the level attempt to use the actual mechanisms available in the constitution and process we have to change or eliminate the amendment in the proper way.

107

Re the will of the people, see:

Looking through the many polls in the above link, what comes out is that a lot of Americans are unaware that the NRA and GOP are currently against gun control. So if asked if they support the NRA or GOP on guns, the country is almost evenly split. But on the issue of gun control, virtually every poll shows the will of the people is to have more of it.

For example:

Of course, the 5% are a lot more likely to base a campaign contribution on the gun issue than the 60%. But you didn’t say it should go by the pocketbook of the people, but rather by the will of the people.

The polling on specific gun control measures isn’t that lopsided, but most Americans favor magazine size limits and universal background checks.

I’m no great believer in the wisdom of majorities. But since you apparently are, you should change your views on gun control.

108

You seem to be confused, PhillyGuy, in several ways. First off, you are confusing gun control with banning. We already have gun control, contrary to what some people on this board seem to think. And it’s all perfect legal under the Constitution. I’m also perfectly ok with gun control. I wouldn’t even have major heartburn over stricter controls, depending on what they were and how sane they were.

[QUOTE=PhillyGuy]
Looking through the many polls in the above link, what comes out is that a lot of Americans are unaware that the NRA and GOP are currently against gun control.
[/QUOTE]

I don’t really give a shit what the NRA and GOP are for or against, to be honest. I’m not a member of either. I doubt many people are unaware that the NRA and segments of the GOP are against gun control though.

And? This stunning revelation means what, exactly? Again, you seem to be confused here.

Show me the poll that demonstrates that a majority (or even a large minority) of people are for outright bans of ALL firearms and you might have a point. Show me the poll that shows that there aren’t literally 10’s of millions of gun owners in the US, and that this is all some sort of fiction perpetrated by the NRA and GOP to trick the American people…or whatever it is you are going on about.

Again…and? Personally, I think the magazine size thing is ridiculous, but if a majority of people want it I have no real issue. I have no issue with background checks either, though I think most anti-gun folks don’t realize the extent that we ALREADY have a lot of background checks in place to purchase a firearm. They don’t realize it because, well, they have never actually tried to buy a gun in most cases and are ignorant. Again, though, I have no problem with it. It’s not the issue. We ALREADY HAVE THE ABILITY TO CONTROL AND PASS LEGISLATURE LIMITING FIREARMS UNDER THE CURRENT CONSTITUTION. We can, collectively, pass new legislature as well. We can, under the current system, even modify or disband the 2nd Amendment.

I don’t see why, since you are laboring under several misapprehensions and clearly don’t know what my views on gun control actually are, let alone what my point was.

109

How’s this for a replacement second amendment:

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 except through due process of law.

In today’s political atmosphere, it is impossible to get the need supermajority for any constitutional amendment. But I think my proposed second amendment is already in effect. Part of our due process is that if the Supremes want to take a particular case, they can. Right now the Supremes, by a 5 to 4 majority, think it’s OK to infringe on the right (for example, by denying the right to many types of arms, by denying it to classes of people, and by denying it in places such as their courtroom). Get one more Democratic-appointed justice, and due process will allow any and all infringements legislatures choose to pass.

110

Okay, fair enough.

I figure the thread is intended to ask if the Second Amendment should be in the Constitution, not argue about how it should be interpreted given that it exists.

I have to disagree with your point about the “will of the people”. Let’s face it, the point of making things like speech or religion or gun ownership constitutional rights is to place them beyond the will of the people. The Second Amendment says that gun ownership is protected even if the majority wanted to ban it. It’s the will of gun opponents not gun supporters that’s being thwarted.

For myself, I’d oppose a constitutional ban on gun ownership. Gun supporters should no more be shut out than gun opponents are. Both sides should be free to advocate and push for their position through the democratic process and neither side should enjoy a special protection for their view. Owning a gun should be as constitutionally neutral as owning a car or a television.

111

I vote to retain the 2nd.

It’s a natural right
Many gun owners feel strongly for the 2A the same way the pro-choice and gay marriage advocates do about their position, and rightfully so. The right to defend oneself from those seeking to do harm, be it an evil person or a tyrannical government, is a natural right that cannot be taken away. It follows the gun is the best tool for self-defense(What tools do police and soldiers use?).

The Everyman
What I find good about the 2nd Amendment is that the poor can have access to firearms. Whereas in other more ‘civilized’ countries one must be wealthy(hunter or sporting club), politically connected(elite class) or in organized crime(can’t think of any country whose gangs are unarmed) to own a personal firearm.

Gun control is wrong?
From an objective perspective, the gun control movement consists of misinformation, twisting the facts and using emotions to further their cause. If their position were correct, why not rely on logic and reason? Why resort to ad hominem attacks and other underhanded methods to champion their position?

Popular support
I don’t care if there is popular support of gun control. Just because majority said the Earth was flat, didn’t mean they were right. If an idea falls apart under strict scrutiny, it is wrong no matter what the mobs say.

Death is worse than assault
While the US has a high homicide rate compared to other developed countries, how many of those deaths are due to gang on gang/criminal on criminal? And while death seems worse, assaults can be as bad. I’ve met a man who received a blow to the head from a lead pipe, who is no longer able to communicate and function independently in society, living out his life inside a rehabilitation center and relying on caregivers.

It all comes down to power
I’ve trained with different weapons and I feel the gun is the best equalizer. Where cold weapons are limited by the user’s physical abilities, a gun is not. A child, woman or disabled person can use one to defend against a larger, stronger and more vicious aggressor. And even if the aggressor had a gun, they would be on the same playing field. Therefore, the gun empowers the weak and acts as a check and balance.

Sensible gun control
“When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm.They violate neither his personality, his liberty, nor his property. They only guard the personality, the liberty, the property of others.”
-Frederic Bastiat

My opinion is that strict gun laws indicates the state/country has a high population of mental aberrants and untrustworthy/dangerous individuals, and is not much safer(less safe perhaps) than a place with more free firearms policies. It is also my belief that security in society is derived from the individuals that make up society. Therefore the priority should be improving society. If a man is deemed a dangerous threat to society so that he may not own a gun, should he be allowed to roam freely in public?

Lastly, before the law of man, I obey the moral laws I have set for myself. And thus I refuse to abide by any laws I deem to be useless and/or against liberty.
“Not only should there be complete liberty in matters of religion and opinion, but complete liberty for each man to lead his life as he desires, provided only that in so he does not wrong his neighbor.”
-Theodore Roosevelt

112

:confused: Its a paraphrase of the SCOTUS case. If you want to relitigate Heller then start another thread.

I wouldn’t, I figure the contours of second amendment law are starting to become pretty clear. There is a limited personal right to self defense (that I think includes a right to effective self defense, none of this Mexican "you can have a 22lr rifle bullshit). I think the states have the right o insist that their citizens have access to any “arms” that the state considers appropriate in light of the possibility that their citizens might be called up for militia duty one day.

They KNEW that they are not mutually exclusive. Democracy is two wolves and a lamb voting on whats to have for dinner. Fortunately we are also a nation of laws.

I don’t know if we need a second amendment as a safety valve on democracy but until we get rid of the guns in the hands of criminals all you are doing is leaving an unarmed populace to deal with armed criminals.

I would be willing to truncate the right to keep and bear arms when beat cops feel it is safe enough to go out on patrol without guns.

113

Umm, no, its about how easy to kill people.

Your refusal to answer tells me all I need to know about your position.

114

[QUOTE=Little Nemo]
I figure the thread is intended to ask if the Second Amendment should be in the Constitution, not argue about how it should be interpreted given that it exists.
[/QUOTE]

I agree, but it’s unsurprising that it’s degenerated onto those tangents. For my part, I think that you can’t look at what should or shouldn’t be in the Constitution without asking what the citizens of the country want. If you are going to talk about a protected right, you have to ask yourself…does this right need to be protected? Is there popular support by even a large minority to have this right? Are there people who are actively trying to take this right away, thus necessitating it’s protection? To me, clearly, the answer to both of those is ‘yes’, wrt a protected right to keep and bear arms…Q.E.D. it needs to be in any new constitution that is written. Personally, I think it should continue to be an Amendment, just like it is now, though I feel it should be made much clearer in it’s intent than what we have today, since it seems to generate so much confusion (even though we have the writings and thoughts of those who created the silly thing to base what they were getting at on). As times change, and as attitudes change, there may come a time when enough people feel that we don’t need something like the 2nd Amendment any more…and, we have a process with clear precedents to get rid of it if that comes to pass…but today, right now, that doesn’t exist in the US, so trying to do away with it (even in debate on a message board) by fiat is, IMHO, the wrong thing to do.

I disagree. There is a process and precedence to do away with ANY Amendment, if that is in fact the will of the people. Saying that the Amendment thwarts gun opponents is true, but so what? It’s like saying that folks who want to do away with freedom of speech are thwarted by the 1st. They are, but so what? Until there is a clear majority of Americans who want to do away with free speech, the fact that there are a minority that don’t is irrelevant.

Except that there aren’t large, powerful groups attempting to prevent you from owning a car or TV. There ARE such groups attempting to prevent you from owning a gun, and without a constitutionally protected right to do so people who want to own guns would long since have lost the CHOICE to do so. Same with freedom of speech. The reason we have protected rights is to protect them from either the government who might find it convenient to do away with or seriously curtail access to them for whatever reason and to prevent powerful groups from doing the same. The check to that is that we HAVE a process to modify or even get rid of outdated Amendments if it’s the will of the people. It’s a process that even has precedents, giving it even more weight.

115

I agree with your general points. In general, if the people want to do something in a democracy, they can do it. But a few areas have been declared off-limits to democratic authority: things like speech and religion. These are issues we feel are so fundamentally important that we do not allow the majority to prohibit them. I think you and I are in agreement up to this point.

The difference between us appears to be over whether gun ownership should be on this list of fundamental rights. You say yes and I say no. (And I’m not saying gun ownership isn’t a fundamental right - it clearly is under our current Constitution. This debate is over whether it should be.)

116

Why should it not extend to state and local governments?

117

The thing is, having a protected right doesn’t mean it’s off limits. Quite obviously, despite the fact that there are Amendments protecting them, the government can and has regulated and even limited those protected rights. I don’t have any issue with that either, not that me having an issue with it would mean anything in any case, since it’s been done and will be done in the future. The only thing that a protected right does is prevent an outright and categorical ban on what’s being protected, be it speech or the right to keep and bear arms.

My main point here isn’t what you or I think, as we are just individuals, but what the population as a whole thinks, when we are discussing fundamental rights and whether they should or shouldn’t be protected…and what, if any changes to a theoretical and purely speculative new constitution should or shouldn’t protect. To me, it’s the same basic argument I’d have with someone arguing that speech shouldn’t be a protected right (I actually know people who think that, say, pornography should be categorically outlawed, and not protected under the 1st). Yeah, I think it should be and someone else thinks it shouldn’t be (or doesn’t need to be), but that’s irrelevant…a large percentage of Americans thinks it should be at this time, thus it is. Same with individual gun ownership. When or if that changes (and, as noted, we have a process for that eventuality), well, I might not agree (I think it would be especially sad on the freedom of speech issue, which I’m much more fervent about than the 2nd), that would be the will of the people and I have to go along with it. To answer what you have in parenthesis, I think it should be because my read is that a large percentage of the populace thinks it should be, and what else is a constitution for than to reflect the will of the people and outline their expectations? I might not always (or, hell, often) agree with what the majority of my fellow citizens think, but I do live in this democracy and abide by that will.

118

Then maybe our disagreement is more fundamental than I realized.

If something is supported by the majority of the people, you don’t need to make it a right. It’s already protected by that popular support. To use an example I’ve made, you don’t need a constitutional amendment to guarantee people the right to own a television. That “right” is guaranteed by the fact that the majority of people have no desire to prohibit the ownership of televisions.

Similarly, if the majority of the people believed gun ownership should be legal, then the Second Amendment wouldn’t be needed. The only need for constitutional protection of gun ownership is to protect it from a majority who want to ban it.

So I don’t think you can make the argument that something should be constitutionally protected because the majority of people think it should be. As I just said, if this is the case then constitutional protection is unneeded. And conversely, if the protection is due to the support of the majority, then it should also be subject to repeal if the majority changes its views.

I also don’t think anyone can make the argument that gun ownership, or anything else, should be protected because it’s a fundamental right (or natural law). To me, this is just begging the question by saying something should be a enshrined as a fundamental right because it is one.

I feel that to argue that something should be a constitutional right, its advocates must be able to explain why the action in question is so important that it deserves protection even from the will of the majority.

119

[QUOTE=Little Nemo]
Then maybe our disagreement is more fundamental than I realized.
[/QUOTE]

You might be correct.

However, if there was a possibility that in the future someone, like the government, might seriously infringe on that right to own and keep a TV, then indeed it could go on the list of protected rights (in fact, it’s somewhat protected by the 1st amendment from categorical banning I’d say…I imagine a good case could be made for it if someone actually tried to ban TV, radio or the internet).

Ironically, and despite the fact that we actually have protected rights under the Constitution, there have been instances when private groups or even the government has attempted to infringe on those rights (which begs the question…what would have happened if we DIDN’T have those protections under the Constitution??). I can think of several instances off the top of my head where the 1st was under attack, and the instances where private groups or the government attempted to infringe on the 2nd are too numerous to recount. Consider DC for instance, where there is basically a categorical ban on handguns, across the board (not that it does their murder rate all that much good)…and in the face of the newest SC rulings on the subject and legal pressure to cease.

Then on what basis should we make a determination that a right should be protected, if not based on what a large percentage (be it a majority or even a large minority) think it should be? What other basis is there?

(I previously laid out why I thought it IS needed, btw…and I think those reasons are valid. Clearly, it needs to be protected because there are groups who want to take it away, unlike your TV example)

I’m not basing my argument on a natural law…not actually sure what that is to be honest, at least in this context. The rights we have are what we carve out, and they are relative to the society and structure we live under. This includes freedom of speech, assembly and, of course, the right to keep and bear arms.

And I feel that to propose to remove a right under a theoretical new constitution, the folks advocating that need to explain why we shouldn’t have that right, why we should run counter to a large percentage of the populations will and why such a right doesn’t need to be protected. Simply saying you don’t like it (which is what I’m hearing most in this thread) seems a pretty shallow justification for removing a right and protections that such a large percentage of the population clearly think we should have, especially in light of the fact that the reality is the government can and does limit those rights and regulates them based on our social structure, laws and desires, and that none of this is cast in stone, and those rights, even the fundamental aspects of the Constitution itself can be modified or even done away with if that’s the will of the people.

120

Somebody else had mentioned it as a natural law right so I was responding to that.

I feel that the fundamental principle should be democracy and the will of the people. That’s the default.

For example, if the majority of people decide cars shouldn’t be driven at over seventy miles an hour, then all of us have to comply with that. We can’t argue that, as an individual, we have the right to drive as fast as we want.

Constitutional rights are the rare exceptions. These are the areas where an individual can defy the will of the majority.

So you can’t simply argue that gun ownership (or unlimited speeds or anything else) should be a constitutional right because it might otherwise be prohibited. My counter-argument to that would be that the general rule of democracy says that if the majority of the people want to prohibit something then it should be prohibited. You need to explain why gun ownership should be an exception to this general rule.