is gun ownership a right or a privilege?

it’s been argued, with cited court cases, that a felon is not required to register a gun because it would violate his fifth amendment rights. what about his second amendment rights? should your constitutional rights as an american be stripped from you just because you’re a felon? why do we let our legislative system treat the second amendment as a privilege that gets revoked if we commit a crime? why does the nra, ‘champion of the constitution’, support such laws with programs like ‘project exile’? no other rights in the bill of rights are taken away under any circumstances. why should the right guaranteed by the second amendment be any different? i know i’ve been hitting these gun threads a lot lately, but arguing about gun control issues begs a lot of questions and also requires that certain things are agreed upon at the outset. so which is it - a privilege that can be taken away, or a right that cannot.

Although the right to vote is not specifically ennumerated in the Constitution, it is certainly one we hold dear – and it’s also one that is removed from convicted felons in many states.

The right to privacy, also not found directly in the Constitution, is nonetheless there, and upheld by many court cases – yet we compel certain criminals to register with police even after their sentences are over – indeed, for the rest of their lives – and we post this information in public. (See, e.g., http://sex-offender.vsp.state.va.us/cool-ICE for details).

The message seems to be that felons may legitimately be treated differently than other citizens, without offending the Constitution.

  • Rick

well that’s the point - if those rights are not enumerated in the constitution, then modifications to them or even outright repeals, are not ‘unconstitutional’.

not only is the right to keep and bear arms in the constitution, it’s listed without limitations in the bill of rights. it has also been argued and cited by gun control opponents that the preamble to the bill of rights holds those ten rights to be separate from the rest of the constitution and beyond the reach of further modification or legislation (i can dig up that reference if necessary). so if we can take that right away, why not the right to an attorney? or the right not to incriminate oneself? why has the second amendment been singled out as the only right in the bill of rights that can be taken away?

Not true. The Bill of Rights(specifically, the Ninth Amendment IIRC) specifically states that the enumeration of rights in the Constitution cannot be used to justify infringements on other rights.

Zwald: The fifth amendment prohibits the government from depriving someone of “Life, liberty, or property, without due process of law”. Therefore, if someone has gone through due process of law, he/she can have liberties taken away. Perfectly Constitutional.

RoboDude: You’re correct. The Ninth amendment says “The enumeration of the Constitution, of certain rights, shall not be consstrued to deny or disparage others retained by the people”. Certain rights are not allowed to be repealed, and those certain rights certainly include the right to vote, and most likely the right to privacy.

Zwaldd, your initial premises is faulty. You state that all the other rights guaranteed in the Bill of Rights are absolute. As the prior post pointed out, that’s not true. No right is absolute. The basic example of that is that you canot yell “Fire” in a crowded theater although you have the right of freedom of speech. Your rights must be balanced against a state’s interest in maintaining the peace, public health and welfare, etc. Also, there may be another individual’s right is paramount to yours.

Altho the right to privacy is not specifically enumerated in the Const., the courts have construed it to be included. Hence, it is just a valid a right as any of the others.

Hence, your conclusion that the 2d amendment contains the only right that is not absolute is faulty.

In addition, there is a valid argument that the 2d amendment does not refer to any individual’s right to bear arms, but to the state as a whole. Read the introductory clause to the 2d 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.

you recall correctly, however that doesn’t imply that rights that are listed in the constitution can be denied. bricker pointed out that some criminals can be denied their right to privacy. they’re still not denied any of their rights in the bill of rights, except for the one in question.

why do they single out the right to bear arms? why not the right to an attorney ? or the right not to incriminate yourself? taking away that one has just as much validity as taking away guns - as a felon, you’ve already proven your propensity for crime, so we don’t want you hiding behind the 5th amendment.

um…that wasn’t my initial premise. my premise was that all other rights in the bill of rights are available to everyone, regardless of criminal convictions.

but that applies to everyone - felons included. felons are denied every single aspect of the right to bear arms.

er…that wasn’t my conclusion. my conclusion was that it’s the only one of the bill of rights that is dependent upon behavior. that still hasn’t been contested.

well that’s not the position of the nra or the vocal sdmb gun control opponents. if the second amendment doesn’t apply to individuals, then every argument i’ve seen on the sdmb about gun control is moot - a whole other debate. so the premise of this debate is that the second amendment applies to individuals.

I am unaware of any case law holding the first ten amendments to be of any greater effect than the rest of the Constitution. Therefore, I would like to see those cites you mention.

The right to an attorney is limited to trial and direct appeal; once a conviction is final, the right to an attorney vanishes. That wasn’t always the case – the right to an attorney used to vanish after conviction. The lesson here is that none of the rights supposedly so sarcosant are in fact inviolable. How is your right to be free from unreasonable search and seizure, the maintstay of the Fourth Amendment, protected? In general, by the exclusionary rule - evidence seized in violation of the amendment is excluded from use against you. But until 1961, and Mapp v. Ohio, that wasn’t true in state courts. It wasn’t true in federal courts until Weeks v. U.S. in 1914. Yet the Fourth Amendment was binding on the federal government in 1789, and through the Fourteenth Amendment, on the states in 1866.

Just so you know - I am a lifetime NRA member, and fully support the right to keep and bear arms. I believe it is an individual right, despite the paucity of case law on the issue. But I fully understand that rights may be removed, COnstitutionally, from convicted felons.

  • Rick

i didn’t say there was a case law, i said that gun control opponents argue that it’s in the preamble and thus any attempt at interpreting the meaning of the second amendment by allowing gun regulations is unconstitutional. here it is:

**"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, all, or any of which articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz"**

here is a link to the kind of site where anti gun control folks post their interpretation: http://www.harbornet.com/rights/lindat.html. if you want to see more, do a google search on ‘nra preamble bill of rights’.

in prison, maybe. i’m not arguing that prisoners should be issued guns. but after a felon serves his sentence, my understanding is that he has as much a right to an attorney and free speech and every one of the rights guaranteed him in the constitution except the right to bear arms.

and the right is available the same for ex-cons as anyone else. my point is that the second amendment seems set apart from the rest of the bill of rights and subject to manipulation and interpretation. the nra’s whole argument against gun control depends on the second amendment being beyond interpretation, yet they turn around and support legislation that requires interpretation and limitation in a way that nothing else in the bill of rights does.

you say ‘rights’. what other right, explicitly stated in the constitution and the bill of rights in particular, is taken away once a felon leaves prison?

this is a link to a page referenced from the official nra website, just so there’s no confusion as to where the nra stands on the bill of rights:
http://www.nraila.org/show.cgi?page=/research/20000504-SecondAmendment-001.shtml

here’s a couple of quotes from that page:
“The court held that because these fundamental rights existed independently of the Constitution, and because the First and Second Amendments guaranteed only that these rights shall not be infringed by the federal Congress, the federal government had no power to punish a violation of these rights by the Klansmen, who were private individuals.”

“Clearly, the court considered the right to keep and bear arms (and the right to peaceably assemble) as a fundamental individual civil right of each citizen, which the federal government could not infringe. The court never even suggested that the Second Amendment guaranteed only a state’s right to maintain militias rather than an individual citizen’s right to keep and bear arms.”

That example is soooooo trite. It’s true, but I can’t stand it, just the same.

That is NOT a valid argument. Read the part I bolded and italicized. The 2nd Amendment CLEARLY refers to a right held by THE PEOPLE. Once more time, with feeling: That is the same “THE PEOPLE” mentioned in the 1st (right of THE PEOPLE peaceably to assemble), 2nd (right of THE PEOPLE to keep and bear arms), 4th (right of THE PEOPLE to be secure in their persons, houses, papers, and effects), 9th (shall not be construed to deny or disparage [other rights] retained by THE PEOPLE), and 10th (reserved to the states, respectively, or to THE PEOPLE) Amendments.

The states and the people were mentioned separately, over and over again in the Bill of Rights. It makes no sense to clearly say “the people” when you meant “the states”. The “states’ rights” interpretation is anti-gun propaganda at its worst. That is the result of starting with a premise (guns = bad) and thinking up the slimmest imagined loophole to support your conviction. An honest reading of the text with the intent of finding out what it says can lead to only one interpretation. It refers, quite plainly, to “THE RIGHT OF THE PEOPLE”.

Also, my preview shows a reply from zwaldd that says:

I can already hear the rattling that’s on the way from gun control proponents saying “See? The states can restrict all they want, it’s just the FEDS that can’t!!!” But allow me to head that off at the pass. I refute it thus:

That, my friends, means that what liberty the federal government cannot take away is protected from the States’ hands as well.

But I have to say that I disagree with the OP. Felons do lose some of their rights and liberties, by virtue of their felonious actions. And that’s the way it should be.

[QUOTE]
*Originally posted by Joe_Cool *
**

That is NOT a valid argument. Read the part I bolded and italicized. The 2nd Amendment CLEARLY refers to a right held by THE PEOPLE. Once more time, with feeling: That is the same “THE PEOPLE” mentioned in the 1st (right of THE PEOPLE peaceably to assemble), 2nd (right of THE PEOPLE to keep and bear arms), 4th (right of THE PEOPLE to be secure in their persons, houses, papers, and effects), 9th (shall not be construed to deny or disparage [other rights] retained by THE PEOPLE), and 10th (reserved to the states, respectively, or to THE PEOPLE) Amendments.

The states and the people were mentioned separately, over and over again in the Bill of Rights. It makes no sense to clearly say “the people” when you meant “the states”. The “states’ rights” interpretation is anti-gun propaganda at its worst. That is the result of starting with a premise (guns = bad) and thinking up the slimmest imagined loophole to support your conviction. An honest reading of the text with the intent of finding out what it says can lead to only one interpretation. It refers, quite plainly, to “THE RIGHT OF THE PEOPLE”.[/q]

And what about the words “A well regulated milita, being necessary to the security of the state…” Are you just going to disregard those words?

The Bill of Rights was enacted to ensure states’ rights. It was a mandate against the federal gvt that here are certain rights that you, Big Government, cannot infringe upon. Hence, the 10th Amendment. Initially, those rights were not enforceable against any state, only against the fedl gvt. By virtue of the 14th Amendment and liberal USSCT decisions, all of those rights now apply to the states as well. But that was not the initial intent.

[q]

That, my friends, means that what liberty the federal government cannot take away is protected from the States’ hands as well.[/q]

Not quite. The 14th Amendment applied the Bill of Rights against states too, by USSCT decisions. But not through that phrase, but by this:

“No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is the last part ("nor shall any State deprive any person of life, liberty, or propety, etc.) that applied those rights to the states. The first part merely gives citizens of another state the same privileges and immunities of any state they happen to be in.

Of course, if the crowded theater actually is on fire, I’m sure everyone would appreciate your bringing this fact to their attention.

The above example of “unprotected speech” bugs me. There are exceptions to nearly any rule, and for every exception there is, or had better be, a damn good reason. Example: in many jurisdictions it’s perfectly legal to drive an automobile on public highways without a license, as long as your doing so prevents a greater harm – driving a seriously injured person to a hospital, for example.

~~Baloo

Just to respond to the OP…

If you violate someone else’s rights, you give up your own rights in the process. It’s that simple. Society decides how severely and what rights you lose.

The second amendment says “keep and bear arms”–it doesn’t say a damn thing about owning them.

Congratulations, Dr. Rieux, you win the “Silly Semantic Argument of the Week” award.

any others besides the second amendment (after you’re released from prison, that is)? what makes the second amendment subject to such interpretation unlike any other right in the bill of rights?

Sure, it seems like silly semantics at first, but there may be more there. During the times of the Revolutionary War and its aftermath, the militia was considered to consist of all able-bodied adult males. This would naturally contain a significant number of men who could not afford a gun on their own, so they would be provided with them. Naturally, since they had to be ready all the time, and on a moment’s notice, they would keep these guns at their houses when they were not needed. The war started when the militia intercepted British troops headed to Concord to seize a munitions depot. So there is an established tradition of men keeping and using arms which they do not own, the state does.

AFAIK, there are still cases today where guns are provided by the state (If I make any mistakes about how these procedures work, just let me know). Police officers are issued a gun when they first join, and they keep it in their possession even when off duty. However, they didn’t buy the gun, they don’t own the gun, and when they leave, for whatever reason, they have to turn the gun in to the department. Soldiers, likewise, are provided with weapons that they have to relinquish. These are cases where people have guns which they keep and bear, but do not own. This may very well be what Dr. Rieux was referring to.

Because guns are DANGEROUS. Only a fool would dispute that fact. They imbue the bearer with a certain level of power. Someone who violates someone else’s rights has displayed a certain level of irresponsibility, and as such society should distrust him to the point where a greatly-elevated level of power should be removed.

I realized that this possibility exists, but I consider it to be a very, very weak argument. “The Government issues you guns, but you don’t own them.” This ignores the fact that this action would leave the people utterly beholden to the Government, which would go contrary to the part about “keeping a free state”, also mentioned in the 2nd Amendment.

But Police Officers and Soldiers are not acting in the role of “private citizen”… they are “Government Employees”, specifically aimed at the purpose of enforcing the law/US policy oversees (respectively).

The Government provides certain tools to its employees so that they may do their job better. Cops are Cops 24/7, even if they’re not on duty. Soldiers are Soldiers 24/7, even if they’re not running 20 miles. In much the same way, the Government may provide its employees with computers, office space, and even living quarters, but it doesn’t mean that those people own said items, NOR does it mean that private citizens can’t own them, either.

SPOOFE, I wasn’t advancing it as a serious argument so much as speculating as to what Dr. Rieux might be trying to say in his post, and advancing it as a topic for discussion regarding the actual intent of the Founding Fathers. It was an argument on this topic that I’d never seen brought up before, and it made me think about possible scenarios and implications. I did say in my last post, “it seems like silly semantics at first, but there may be more there.” Then again, maybe not.

For whatever it’s worth, I do agree that “since the actual ownership of guns is not mentioned, that’s reason enough to forbid that ownership” is a pretty poor argument, if that’s the argument in its entirety. I just thought it a novel interpretation that deserved at least a little discussion rather than mere dismissal.

Of course, there’s always the possibility I misinterpreted Dr. Rieux’s post entirely, in which case, my apologies, Doc.