The Right to Bear Arms, Yet again

The BBQ Pit
61

This is something more than a wild-ass guess, but not much.

I suspect that the Framers couched the Second Amendment primarily in terms of “tyrranical governments” (instead of in terms of “burglars”) was because they were expounding a Federal Constitution, and a Second Amendment that secured a right against the Federal Government. I think this is difficult for a lot of us to grasp, being some 215 years removed from the ratification, and having seen many of the lines between federal and state authority eroded.

Of course the founders knew that guns were effective against murderers, burglars, and “other riff-raff,” just as the use of guns for hunting purposes was firmly engrained in their culture. But the Second Amendment was drafted to solidify a right against the Federal Government. For the Founders, I would imagine, there was no apparent need to guard against the Federal Government disarming citizens so they couldn’t hunt or protect their homes, but there was a very real and demonstrable need to protect against the Federal Government disarming citizens for the purpose of oppressing them.

The short of it, I guess, is that it likely never crossed their minds that the right to K&BA to hunt or protect their homes would ever have occasion to be infringed.

december, none that I know of offhand. Why do you ask?

62

Ignore the major grammatical fuck-up in the second sentence of that post. Just omit the word “was,” please

63

Because if “arms” were meant to include weapons other than guns, then Minty’s argument about firearms being useless for defence against crime would be refuted.

64

Yes, december, there have been a few such cases. But since the courts–including the Supreme Court–have consistently held that the right to bear arms applies only to arms that are of a type consistent with military use, you would probably not be surprised to learn that samurai swords, switchblades, brass knuckles and the like are not protected. I don’t know of any 2nd Am. case that has held knives or other weapons to be covered, but there are very few of those types of cases. For the most part, the legal issues actually presented revolve around firearms.

65

I personally don’t think anyone has the right to bear arms. It seems to me that the bears need 'em more than people do.

-Beeblebrox, in his eternal quest for the worst pun of all time.

66

You made that assertation, and you can’t back it up. That’s not my problem, but it is a big one for you. If their only interest was in governmental, military purposes, you’re going to have to prove that was their only motivation or concede the fact that they might have had motivations you don’t know about.

Why am I not surprised to hear you using the phrase ‘gun nut’?

67

OK, I’m going to stand by my earlier assertion re: self defense and hunting. But just to play devil’s advocate in the Tedster-minty scrap, here’s a nugget that suggests at least one Founder thought guns had some value for private self-defense:

It’s pretty clear that Adams rejects self-defense as the core value the Second Amendment protects. But it does tend to negate minty’s argument that early firearms were of little value self-defensewise. I assume that argument is based primarily on the length of time it took to load and fire a flintlock, but remember: in a house were children (sons anyway) were given guns and expected to use them from any early age, the danger of leaving loaded weapons around the house is considerably less than in modern society. (There may be some physical/logistical reason why a gun couldn’t be left loaded for a long period of time, and I’ll be willing to reconsider this point if somebody can demonstrate one.)

Oh, and as I read that quotation, it tends to support an individual right position, at least on Adams’ part.

68

Go felch a goat, catsix. Tedster, not me, was the one who stumbled in and stupidly asserted that the Second Amendment was motivated by concerns about self-defense against criminals. I challenged him to prove it, and he has not even remotely done so. Moreover, it is insanely stupid, beyond any bounds of rationality, to expect someone to conclusively prove that no such evidence exists.

But if that’s what you want, here is the sum total of evidence that the framers were motivated to draft and ratify the Second Amendment out of corcerns for self-defense against criminals:

Happy now?

Gun nuts exist. Rational gun owners exist. Rational gun control people exist. Anti-gun nuts exist. The sites I found with that quote were definitely from the gun nut part of the spectrum. And I don’t give a rat’s ass what you think of the expression.

69

I think you’re mostly right, minty, except in the sense that oppressive government agents can be criminals. Randy Weaver and the situation at Ruby Ridge is probably the most graphic example of this, but there are certainly others–police who search a home in the absence of a warrant, exigent circumstances, or consent are trespassers, and in the bad old days private homeowners were allowed–expected, even–to resist a warrantless search via the use of physical force. (I can provide cites for that if you’d like, when I’ve got more time.)

But to conflate self-defense against private criminals and self-defense against government agents who commit crimes probably muddies the issue. I suspect that y’all are arguing about self-defense against criminals without a government nexus.

Still, though, he makes a valid point, whether he realizes it or not.

70

C’mon, Minty. You’re doing an excellent job of being a lawyer here. But that’s it. Your position is hardly the unassailable citadel you’re attempting to make it out to be.

First, you’ve admitted that the founding fathers intended the citizenry to hold the right to own firearms. And yet you claim, “those cases I cited do establish that it is the law of this nation that the Second Amendment does not confer an individual right to bear arms.” In essence, this means you admit the case law you’ve provided is flawed; you’ve refuted your own argument.

Suppose, just for the moment, we grant that your cites are valid though. This still means nothing; they’re hardly unequivocal, or the only opinions extant on the right of individuals to own firearms. I’ve not even read them, but I can tell you there’s an equal body of case law that in direct opposition to what you claim they say. In one fashion or another, each of these cites upholds explicitly, or acknowledges an individual right.

• U.S. vs. Emerson, 1999, Nunn v. State, 1 Ga. 243, 250, 251 (1846) (struck down a ban on sale of small, easily concealed handguns as violating Second Amendment);
• State v. Chandler, 5 La.An. 489, 490, 491 (1850) (upheld a ban on concealed carry, but acknowledged that open carry was protected by Second Amendment);
• Smith v. State, 11 La.An. 633, 634 (1856) (upheld a ban on concealed carry, but recognized as protected by Second Amendment “arms there spoken of are such as are borne by a people in war, or at least carried openly”);
• State v. Jumel, 13 La.An. 399, 400 (1858) (upheld a ban on concealed carry, but acknowledged a Second Amendment right to carry openly);
• Cockrum v. State, 24 Tex. 394, 401, 402 (1859) (upheld an enhanced penalty for manslaughter with a Bowie knife, but acknowledged that the Second Amendment guaranteed an individual right to possess arms for collective overthrow of the government);
• In Re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am.St.Rep. 215, 216 (1902) (struck down a ban on open carry of a revolver in Lewiston, Idaho as violating both Second Amendment and Idaho Const. guarantee);
• State v. Hart, 66 Ida. 217, 157 P.2d 72 (1945) (upheld a ban on concealed carry as long as open carry was allowed based on both Second Amendment and Idaho Const. guarantee);
• State v. Nickerson, 126 Mont. 157, 166 (1952) (striking down a conviction for assault with a deadly weapon, acknowledging a right to carry based on Second Amendment and Montana Const. guarantee).
• U.S. v. Hutzel, 8 Iowa, (2000) (cite in dictum that “an individual’s right to keep and bear arms is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-79 (1939).”).
• State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921) (overturning a ban on open carry of pistols based on North Carolina Const., but acknowledging Second Amendment protected individual right from federal laws).

That’s enough of that for the moment. Certainly enough precedent there to refute your assertions and cites that the 2nd Amendment is not an individual right.

Then you go on, still admitting that the founding fathers wished the citizens to hold an individual right to arms, saying they meant so only if they we’re to be used in reaction to a tyrannical government. You’ve also refused to provide quotes from them backing this view. You’re simply wrong here. If this were true, the restrictions on use you say they held would be right there in the quotations; there’s many with no such qualification. It’s not, as you insist, as case of having to prove a negative. Here’s just a few:

• “No freeman shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” – Thomas Jefferson – No restricted use there, only a mention of the strongest reason for private ownership.
• “The Constitution shall never be construed . . . to prevent the people of the United States who
are peaceable citizens from keeping their own arms.” – Sam Adams – No restrictions on use.
• “[W]hereas, to preserve liberty, it is essential that the whole body of the people always
possess arms, and be taught alike, especially when young, how to use them.” – Richard Henry Lee – No mention of restrictions on use.
• “The best we can hope for concerning the people at large is that they be properly armed.” – Alexander Hamilton – One more time, no limits on the intended use of those arms.
• “The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that’s good.” - George Washington – Need I say it?

And here’s a couple, that specifically mentions a potential use of these privately owned firearms:

• “Arms, like laws, discourage and keep the invader and plunderer in awe and preserve
order in the world as well as property. …Horrid mischief would ensue were (the law-abiding) deprived the use of them.” – Thomas Paine – Whoops! He’s talking about citizens using guns in self-defense.
• “Arms in the hands of citizens (may) be used at individual discretion…in private self defense…" – John Adams – Kinda speaks for itself, eh?
• “A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walk.” – Thomas Jefferson – giving us yet another use for guns that has nothing to do with overthrowing tyranny.

So there’s a bunch of stuff again that refutes your arguments, and cuts through your obfuscating logic-chopping.

71

Wow, minty, way to not get the fuckin point. Your statement was that self-defense wasn’t even a consideration at all, not ‘self-defense wasn’t the sole reason for that amendment’, so don’t get all pissy with me because you can’t prove your claims.

Instead of admitting that you were wrong, that it could very well have been one of their considerations, you start acting like a defiant child and telling me to felch goats. You said their only reason was oppressive government, and I challenged you on that. You were off base. Grow the hell up about it.

Oooh, aren’t you a tough one. It’s not the expression itself, it’s that you’re seeming to throw it out there at a website that is in support of private gun ownership. Given the stances I’ve seen you take in the past, I wouldn’t be surprised if you thought everyone who believed that the Second applied to individuals was a ‘gun nut’.

Oh yeah, and thanks to Unclebeer for responding in a far less irked manner than I have, but really, ‘felch a goat’? I know this is the Pit, and you have a right to say that. Doesn’t mean it was necessary tho.

72

As far as the intent of the frames is concerned, this threat was started in this forum so as to allow a certain amount of free expression of personal rancor through the use of colorful and descriptive language. I see that at least that objective has been accomplished.

Tennessee, I thought you had to get ready for final exams. Every moment spent here is a moment less to deal with your more immediate problem.

As a matter of Constitutional theory and law, ever since the Second Amendment became a matter of controversy with the federal act prohibiting private ownership of machine guns in the 1930s, the federal courts have consistently (if not universally) held that the Second Amendment is militia connected and that the right to bear arms is a collective right, not an individual right. People may argue all they want that this is no a correct interpretation but the fact remains that this is the interpretation that has been adopted by the federal courts for 60 years and more. It has also been the interpretation urged on the courts by the Dept. of Justice and the interpretation approved by the bulk of Constitutional scholars and historians.

Now, the Department of Justice goes before the Supreme Court and in a footnote advocates a contrary position. Why would Mr. Ashcroft’s Justice Department make this abrupt about face on the meaning and operation of the fundamental charter of our liberties? Especially in the absence of a major controversy before the courts.

Let me suggest two possibilities. This may be a cynical and calculated attempt to stroke a major voting block that is fully capable of making the difference in a number of States that are closely contested in the Congressional and Presidential elections. This may represent the triumph of a highly sophisticated public relations campaign waged by the NRA and its patrons. Moses (played by Charlton Heston), maybe, has once more created the illusion that the Red Sea has parted.

The third possibility, that the administration has acted from conviction with no concern for the electoral consequence, in defense of true Constitutional principle, is too remote a possibility to merit serious consideration.

73

Ha! You only wish I’d leave! :smiley:

Let me suggest a 4th possibility–one that I think probably reflects what actually happened: The administration supports an individual-right reading of the Second Amendment. The administration seizes upon the incredible mass of legal scholarship suggesting that the Second does, indeed, create just such a right. (Remember that most of the people that work at the DoJ are lawyers, people who tend to put great stock in this kind of thing.) Recognizing the opportunity to correct a longstanding trend of government over-reaching (and yes, gain a few votes) the DoJ reverses it position to be more in line with the evidence before it.

Once again, remember that the people who worked on this project at the DoJ were, without a doubt, lawyers (and probably pretty damn good ones, by any objective measure.) As such, they knew that any position they advocated would have to be supported with ample historical evidence and logical argument if the Supreme Court were to adopt it in future cases. The DoJ lawyers are people who know what to put in their briefs–Founding era materials and law journals, good. Citations to NRA bumper stickers, bad. Therefore, if the change was based on anything, it was based (as I’ve argued from the beginning of this thread) on a body of legal scholarship that’s reached critical mass.

Does that seem so unlikely? Or does a Republican administration necessarily have to act out of some evil motive?

74

Why?

And why do I find it so troubling that the idea of the government actually upholding the Constitution it swore to protect and defend is met with such cynicism.

Maybe it is doubtful. If so, that’s a sad, sad commentary on our times. Sad that the look at the administration is so jaded as to think it nearly impossible that they would defend Constitutional principle - to find the matter so absurd as to not even consider it - is a disturbing notion. How bad has it really gotten when we scoff at the idea that the government might actually live up to the Constitution?

75

Good god, Uncle Beer. Would you please show me where I ever stated that the use of arms in defense of attack by criminals was somehow prohibited? My sole point was that the Second Amendment was not motivated by such use. Or, if catsix prefers the point stated thusly, that there is not a single shred of evidence that the framers were motivated by that concern in drafting and enacting the Second Amendment. Hell, you can use your guns to open soda bottles and cut sheet rock for all I care . . . if you are allowed–whether by constitutional right or the indulgence of state and federal laws–to bear such arms in the first place.

My challenge to Tedster was to prove his assertion that the 2nd Am. was motivated by concerns for self-defense against criminals. Showing that self-defense would be within the scope of the right granted [:p] is by no means the same thing as showing that such use was the motivation behind the grant of the right. The First Amendment protects my right to worship the devil and dance by the light of the moon. Yet the First Amendment was not motivated by satan worship.

As foir your cases, the short answer is that most of them predate the cases I cited, and are hence superceded by them, and that they appear to be based primarily on state laws anyway. I’d be happy to debate the right to bear arms under the Texas Constitution, but that ain’t quite the same thing as the Second Amendment. (Also, do you have an accurate cite or a link to that 2000 Iowa case? It appears to be a federal case since it’s “U.S. v. Hutzel,” so the cite should look something like __ F. Supp. 2d ___ (N.D. Iowa 2000).)

Finally, if it wasn’t already impliedly clear by now, let me make it explicit that I don’t think that random quotes from founding fathers have jack squat to do with the current state of the Second Amendment. What a bunch of long-dead gentlemen from Philadelphia and Virginia generally thought about guns and militias and such has no impact on the state of the law, though it may be interesting from the standpoint of history and politics. If you want to rely on those statements to conclude that the law is wrong, that’s okay by me. But the law is what the law is, and it is as I have represented it.

catsix, your ignorance continues to astound me:

Please show me where I said that “self-defense wasn’t the sole reason for that amendment.” I have very consistently said that self-defense against criminals was not a motivation for the Second Amendment at all, as evidenced by the complete lack of statements from the framers evidencing such a motive.

Actually, I said that “they wanted the people to be armed for purposes of the militia: defense against government tyrrany and defense against foreign invasion.” So you’ve got oppressive government and foreign invasion. Now, would you be satisfied if I posted links to all those quotes, which you know perfectly well exist? Or is it that you expect me to prove that 2+2=4 by excluding all other numbers except 4?

76

If you’ll show me where I said that you did. Or how 'bout your asinine statement that “individual ownership of firearms is not confered by the 2nd amendment.” Obviously, if an individual is unable to own firearms, he’s unable to employ them in any fashion.

More logic chopping. Your challenge was to provide a quote by the founding fathers that showed self-defense was a legitimate use of firearms. Quit twisting things. Again, you are being a very good lawyer. You do litigation by any chance? I’ll bet you’d be superb.

Well, actually it does. Else you’re re-interpreting the law to suit your own needs.

As for state cases vs. federal, so what? The rulings here acknowledge an individual interpretation of the 2nd amendment. Period. And superceded cases are routinely used in dissent. You know this very well. The objective is to show that interpretation isn’t monolithic.

77

Wow, big leap there from the first sentence to the second one. Even though the Second Amendment does not (as currently interpreted by the courts) confer an individual right to firearm ownership, that by no means means that individuals are not able to own firearms. There’s nothing in the Constitution that guarantees me the right to go fly a kite–but I still can.

No, the challenge was always to find something saying that they were motivated by personal self-defense against criminals, not just that the right was broad enough to permit that as well.

Ya got me. :cool:

You might argue that’s what the courts have been doing. I’m just telling you what they’ve established the law as being.

Interpretation doesn’t have to be monolithic. It’s holdings that count, and the holdings have been as near to monolithic as you can get without moving on Easter Island.

78

Except that they did make reference to self defense, and you have quietly dismissed all of that as being ‘quotes taken out of context by gun nuts’.

Because you choose to ignore their statements, minty, doesn’t mean those statements were never made.

79

catsix, you are a lying sack of shit. Only one quote even has even been submitted to this thread that purports to be by a “framer” indicating a concern with self-defense against criminal acts (nice of you to omit crucial limitation that from your post there), and it is in fact a quote from a person who is not a framer, but is instead some 18th century dude from Italy.

Sorry, that shit don’t fly. Add it to your sack.

80

Brothers and Sisters, let us review the bidding. Despite random references to what someone can do in the sovereign State of New Hampshire, citation to dicta in State courts, a fair number from before the Civil War, claims that the federal courts have had it wrong all along, and babbling about the sacred right to shoot a burglar down like a dog in the street, and general venting to the waste of all sorts of electricity, the fact remains that the federal courts when confronted with the issue have unequivocally held that the right to bear arms is a collective right related to the existence of a militia and not an individual right. For the last 60 years or so that has been the position advanced by the U.S. Department of Justice through Democratic and Republican administrations. That is the position asserted by the bulk of legal scholars and by historians of the Constitution. Now, the Justice Department, in a footnote to a Supreme Court brief and a memo to the various U.S. Attorneys announces that this position has been wrong and in future the Justice Department will view the Second Amendment right to bear arms as an individual right. Now, consider what circumstances would cause the Attorney General of the United States to make this abrupt about face.

Someone says that it has happened because a critical mass of scholarly opinion has developed. Others say that it is because it was the intention of the Founders that the right should be a personal right and that it took a legal administrator of Mr. Ashcroft’s depth of understanding to perceive it after decades of benighted ignorance. Balderdash!

I say there is one reason for this. It is a sophisticated and well financed public relation campaign mounted by firearms manufacturers and distributors to convince the public that there is a personal right to own firearms and that big government is plotting to take that right away. The campaign has worked and a national administration which can see a political advantage to be gained has climbed on the band wagon. Think, people. Does anyone remember the President talking about Second Amendment rights during the presidential campaign? If this switch were a matter of principle don’t you think we would have heard about it during the campaign? Does anybody remember this coming up during Mr. Ashcroft’s confirmation hearing? Does a stand-up and principled administration effect a significant change in its position on the meaning and effect of the Constitution in a stealth attack by footnote and with apparently no discussion within the Department of Justice beyond the fiat of the A.G. to the Solicitor General and a midnight communication to the branch offices? Give me a break!

This is stroking a constituency, nothing more and nothing less. It is politics and we should not be surprised that it is. By the same token, we should not delude ourselves, and insult the intelligence of others, by claiming it is Constitutional truth suddenly revealed in a flash of light on the Road to Damascus.