But the guy never possessed a firearm after having been convicted. He has, however, had his right to bear arms removed. If not because of the prior conviction, then why?
Lots of people have their right to bear arms removed, but the fact that it happens to one class of people and not another doesn’t mean that the first group of people is being penalized for something. Bar and liquor store patrons aren’t being penalized when they aren’t allowed to carry firearms into bars and liquor stores; it’s a public safety issue. They’d be better off trying an Equal Protection argument, if they can convince a court that wife beaters are a protected class.
If it extended their jail sentences, there would be an ex post facto issue, because it places additional penalties on their behavior due to circumstances they can’t control; they can’t comport their behavior with the law. However, they can in this instance; they can not possess a firearm.
However in this situation the removal is being levied only as an additional penalty for conviction, and it applies to those who were convicted before the law went into effect.
It may seem to operate as a penalty, but it’s not a penalty. 18 U.S.C. 922g says the following people can’t have guns:
Felons, fugitives from justice, drug addicts, mental defectives and those committed to a mental institution, illegal aliens, dishonorable discharges from the army, those who have renounced their citizenship, stalkers, and those convicted of domestic violence.
Now, are we trying to penalize these people by telling them they can’t have a gun, or are we trying to prevent gun violence? Can a prison escapee argue that he is being penalized because he had a gun when he was captured?
Both. And if the law removing gun rights from any of those people applied to those whose convictions occured before the law went into effect, that would be ex post facto too.
I would be lying if I said this were not true. However, this is what the Framer’s wanted. There is a reason why they wrote the U.S. Constitution in very broad and general terms. They did so because in the future under different circumstances and factual settings, such as America moving from primarily an agrarian society to an industrial society, would necessitate the federal government to address different issues and require a different interpretation. If you are so obsessed with adhering to the Framer’s intent, then you must also acknowledge the fact the Framers intended for reinterpretation and did not want future generations bound to their interpretations; otherwise this would defeat the whole purpose of writing the U.S. Constitution very broadly and creating a perpetual form of government.
But this is a digression from the main point. My point is there does not exist a “Framer’s intent” in regards to whether or not each individual could possess a gun unrelated to serving in the militia. Your argument assumes this intent exists and then you use this false intent to argue for the conclusion that each individual has a right to possess a gun regardless of whether or not they serve in the military or militia. My point is your conclusion does not follow because you are relying upon a false premise. There is no Framer’s intent speaking to the issue of whether or not individuals have a right to possess guns regardless of whether or not they serve in the military or militia and so your conclusion is possibly false.
Nothing could be further from the truth. I am a textualist, just as conservative right wing Supreme Court Justice Antonin Scalia. I have read Scalia’s book A Matter of Interpretation and agree with him. Scalia repudiates Al Gore’s contention the U.S. Constitution is a living and breathing document but Scalia also rejects any notion we or Justices on the Court are bound by the intent of the Framers because it was never the intent of the Framers to tie the hands of future generations with their interpretation. Additionally, there was more than one Framer with more than one view and relying on the consensus is never sufficient because the consensus could be wrong. I believe, just as Scalia, an interpretation can go no further than is reasonably supported by the words being interpreted.
For example the phrase, “The Free Exercise of Religion,” has more than one interpretation to it. It can reasonably be interpreted to mean to include to liberty to decide what to believe in, how to believe in it, the freedom to associate with those of similar beliefs, the freedom to practice the beliefs, and worship. Now none of this is explicitly mentioned but they are all reasonable interpretations and go no further than the words themselves allow. So I am a textualist. I look no further than the words being interpreted.
Interesting you say this because the Judicial rule leading to this consequence adheres to what the Framers intended regarding their interpretation of “regulate interstate commerce”. The case laying down this rule was in Wickard v. Filburn where the U.S. Supreme Court held Congress may regulate those activities which “substantially affects” interstate commerce. Interesting enough this is how most of the Framers interpreted the phrase to “regulate interstate commerce”. So in this instance the U.S. Supreme Court incorporated the Framer’s intent as a legal rule. This appears to be one instance where the Framer’s intent leaves a bitter taste in your mouth but you were all for adhering to the Framer’s intent when it served your purposes.
On a side note you have not accurately summarized the facts or the Court’s holding in Wickard v. Filburn. They found that “collectively” if individuals were to grow wheat on their farms for their own consumption, then this would have the necessary effect of depressing wheat prices because few farmers would have to buy wheat from the market if they are growing it in their own backyard. The demand for wheat on the market would decrease and so would its prices. Consequently, since this collective conduct would have a substantial effect on the price of wheat being sold on the market throughout the U.S., and Congress may regulate anything that substantially affects interstate commerce, then Congress can impose a blanket prohibition on this activity precluding anyone from engaging in this activity. It is a very well reasoned opinion relying upon the intent of the Framers and applying it to a fact pattern.
Actually as a side note, I dispute this contention. There is no “general right to privacy” the individual possesses to be found anywhere in the U.S. Constitution. It is a legal myth. There is not one amendment to the U.S. Constitution whose words reasonably lead to the conclusion a general right of individual privacy exists.
Okay I will digress with you on this point and say the First Amendment does protect certain types of speech while it does not protect other types of speech. This appears to be compatible, once again, with the Framer’s intent. At the time the First Amendment was drafted there existed laws against libel, slander, and threats and few if any of the Framers considered them to be in violation of the First Amendment. So while the First Amendment on its words has a blanket prohibition the Framers were practical and understood Congress and the States could prohibit certain types of speech and the U.S. Supreme Court, relying upon this intent, has so interpreted the First Amenmdent.
This would appear to be another instance where some of the Framer’s intent is not compatible with how you possibly interpret the First Amendment.
The point in all of this? It is perhaps best not to rely upon the intent of the Framers since there is rarely a consensus and one will then have to argue, for the sake of logical consistency, why the consensus view of the Framers is correct and the minority view of the Framers is not.
Or on other occasions, such as this one, there is no Framers’ intent to be found. Additionally, one would have to possibly contend with the fact most if not all Framers did not want their intepretation to be necessarily binding on future generations but expected the U.S. Constitution to be reinterpreted.
Finally what is to be done when the Framers’ intent is contrary to your interpretation, as it appears to be in at least one area thus far and it is in regards to what “regulate commerce” means.
What this reduces itself to is there may be an individual right to possess firearms regardless of one’s involvement in the military or militia but one is not going to find this right by looking at what the Framers thought. It is best perhaps to just rely upon the words of the Second Amendment instead.
"rationale", it has an almost pleasing ring to it. Much more appealing than “twisted and perverted”.
So much for the concept of “equal protection of the law”.
It most certainly is the imposition of a penalty and on top of that it is the imposition of an additional penalty for actions previously committed and after judicature. You can call a turd a decoration, that doesn’t make it anymore appealing.
See, when Ol’ Joe went to court for correcting his shrew of a wife, the defense and prosecuting attorneys got together and agreed to the terms of Ol’ Joe’s plea.
O’l Joe’s attorney pulled him off to the side and told him, “Look, Joe, sure she had it coming and a jury would probably be sympathetic to your side, but it just ain’t worth it. Just go ahead and take the plea, pay a fine and be a good boy for the next six months and that will be the end of it.”
Well, O’l Joe took his attorney’s advice and took the plea. Then six months later the Lautenberg Amendment was enacted.
Ol’ Joe, who used to be a deputy sheriff for the county said, “Hell fire, if I’d a known that, I be damned if I’d a plead guilty.”
O’l Joe never could understand why that was not considered an additional penalty.
He told me the other day that he only had a couple more weeks left of unemployment benefits.
Now, is it startin’ to sink in?
See what I mean by “twisted and perverted”?
Razorsharp, will you drop it with the Lautenberg Amendment already? It might involve gun-control, but it is NOT A SECOND AMENDMENT ISSUE, not until somebody brings a court challenge to it based on the Second Amendment instead of ex post facto. Let’s get back to discussing what the Second Amendment means, or should mean.
If your interpretation were true, why then would the Framers draft such explicit instructions for enacting Constitutional Amendments? I mean, what’s the point, if the Constitution was intentionally written in “very broad and general terms” so as to facilitate the federal government to “address different issues and require a different interpretation.”
Well, there is a “Framer’s intent” with regards to America. America was founded on the premis of indivudual freedom and liberty with limited government. When the federal legislature enacts law that restricts the ownership of firearms by the private individual, the FedGov is overstepping its bounds and usurping a power that is specifically denied it by the Constitution.
"…the right of the people to keep and bear arms, shall not be infringed."
Sounds pretty specific to me. Now, lets examine the Tenth Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
“Regulating” the “right of the people to keep and bear arms” is a power prohibited the FedGov by the Constitution.
Okay, from a textualist standpoint, give me another example of how “the right of the people to keep and bear arms, shall not be infringed”, can be interpretated.
Being that the Framers concept of America was base on individual freedom and liberty, I just can’t accept the notion that the Framers intended the power to regulate interstate commerce would be applied to people who grow wheat for their own presonal use. This appears to be another perversion of the Framer’s intent.
Now that you do acknowledge that the Court will prostitute itself for an agenda, it really wouldn’t be a bad idea to examine all Court decisions with that knowledge in mind.
The First Amendment is another one of those strictures against the newly created Federal Government to pervent it from overstepping its bounds. “Congress shall make no law…” It does “protect” speech, in a sense, but only by prohibiting the FedGov from making law with regards to speech.
Now, if you are referring to “you can’t yell fire in a crowded theater”, you’re right, in a sense. But the issue here is not speech, per se, but endangerment.
As one may have “the right to keep and bear arms”, one is forbidden by civil statute to endanger an innocent by pointing that firearm at him.
That’s what I’ve done all along. It is those who wish to infringe on the right to keep and bear arms that do the “interpreting”.
Don’t get me wrong, I don’t have a dog in this fight. I don’t care one way or the other. Nothing needs to “sink in”, I understand the counter-argument perfectly. Believe it or not, I can see both sides of most issues. I just popped in because zzwald wanted to know how it could possibly not be ex post facto, so I explained the reasoning behind the law. If you think the reasoning is faulty, that’s fine, so long as you understand it; there’s plenty of Supreme Court cases I don’t agree with. The lawyers who lost the 18 USC 922g cases almost certainly agree with you.
The Equal Protection issue isn’t going to get far, though. All laws treat people differently. Equal Protection just states that you can’t treat people in similar positions differently on an arbitrary basis. There are different levels of protection under Equal Protection; a classification based on age isn’t going to receive as much protection as a classification based on race. A law saying those under 21 can’t buy alcohol is not as subject to scrutiny as a law that says those of a certain race can’t buy alcohol. A law that treats criminals differently based on their status as a criminal is going to be subject to “rational basis” scrutiny, which is a very low standard. So long as there is a rational basis for the differential treatment, any at all, the law will stand.
And as to Ol’ Joe…well, I feel for him, but the judge in his case aked him during sentencing if he was pleading guilty only to get a lesser sentence, or because he was actually guilty. Ol’ Joe said he was actually guilty. If he was innocent of (ahem) “correcting” his wife, he should have pleaded not guilty. If Ol’ Joe doesn’t understand how that could not be considered an additional penalty, he can get a lawyer to explain it to him and then understand it but not agree with it.
Sorry 'bout that, dealing with Hamlet just had me coiled and ready to strike at the least provocation.
Thanks for the input.
My interpretation is true. The Framers established a government, a union, to exist for an eternity, to be perpetual and indestructible. Giving us a Constitution that cannot be interpreted and re-interpreted to adapt to the times as it becomes necessary seems contrary to desiring a perpetual Union, an indestructible government. The Framers intended for different interpretations to be given in the future. The amendment process was to be used for those radical departures from the plain language of the Constitution. Any interpretation that is a logical and reasonable extension from the plain language of the Constitution, and there is often more than one, is permitted to be given without the necessity of passing an amendment.
Even James Madison reversed his position in regards to his interpretation of the U.S. Constitution. At one time Madison did not consider the creation of the Bank of the U.S. to be a “necessary and proper” exercise of Congressional power. Yet during his second term in office he signed legislation extending the banks existence. He simply altered his own interpretation of the U.S. Constitution without the necessity of having an amendment partly because it can logically be reasoned the creation of a bank is a necessary and proper exercise of Congressional power.
The commerce clause discussion is another issue totally unrelated to this issue. If you want to discuss whether the Framer’s intent has been honored with the Court’s current interpretation of the phrase, “regulate commerce” then begin another thread and I am there but I will tell you the Court has adhered to the Framer’s intent and there are volumes of writings by the Framers to illustrate this point. Try reading Madison’s notes on the Constitutional Convention, some Federalist papers, and some of his personal letters to various Fouding Fathers and Framers.
In regards to the First Amendment again this is another discussion to be addressed in a separate thread.
Finally, one interpretation of the Second Amendment is the following. The states possess the authority to regulate a militia. To do this requires individuals of the state possess guns. Hence, Congress cannot pass a blanket prohibition denying everyone from owning a gun as this would preclude the states from forming armed militias. So from this interpretation the right to gun ownership and possession is in conjunction with serving in the militia and does not necessarily lend itself to an individual right to possess a gun or own a gun.
The guy who makes a legal assetion that has been rejected by every court that’s considered it is saying I’m in over my head? Now that’s good humor.
**You’re absolutely right, I did not correct you. To correct someone, they have to have the ability to admit their mistake. A concept that is far beyond you. Instead, I should have phrased it that I corrected the misinformation you disseminated. Feel better?
There it is. I’m amazed you read it. Strange how you didn’t point out the obvious quote I left in there for you. I figured if you actually took the time to read it you would have commented on it. But I’m sure you really did read it all in order to possibly educate yourself rather than rely on one-liner retorts and backhanded insults.
Sorry if I put you off earlier. I just get a little testy when people misrepresent the current state of the law.
Here’s an odd little theory on the Second Amendment – not sure where I read it: The only intent was a symbolic one. In the Old World, bearing arms was, in most countries, an exclusive privilege of the nobility. So the Second Amendment was meant to “ennoble” the entire American populace and declare their fundamental equality with one another.
Sorry for the delay in responding; I had finals this week.
OliverH said, in response to my assertion concerning the prevalence of defensive use of firearms:
Demonstratably untrue:
Taking On Gun Control: Defensive Gun Uses
Suing Gun Manufacturers: Hazardous To Our Health
While I’m not vouching for the veracity or exactitude of either Kleck’s survey or the Cook-Ludwig survey, theirs and other’s research does indicate that there are, quite possibly (I would go so far as to say in all probability), a higher number of DGUs than criminal uses of firearms.
Enough so that the issue of gun control as it is, and as it may be applied in the future, needs a more thorough analysis than a five-second sound bite on CNN, or sloganeering by Sarah Brady (or the NRA, too, for that matter).
OLiverH:
What strikes me as absurd about your argument is your assumption (as well as gun controllers generally) as undisputed fact that a positive correlation between availability of firearms and violent crime exists. While I agree that this seems rather intuitive when taken at face value, still, the automatic assumption of gun controllers of its unassailable logic, even as they deride research which tends to indicate otherwise, speaks to a profound moral and intellectual tutrpitude.
In other words, you are holding your opposition (pro-gun rights advocates and research which supports that position) to a higher standard of proof even while proceding from a false assumption yourself.
This is called hypocrisy.
The real bottleneck in making any headway in these debates is the unmitigated arrogance of gun controllers in their belief that their position is the defining position of the debate, and that gun rights advocates shoulder the burden of proof in dislodging them from their moral/political/legislative highground.
When that is taken as a given by gun controllers, it is then all too easy to cavalierly dismiss any gun rights argument, without even having to bother to look at their research and data, or listen to the fundamental reasoning behind their arguments.
“Anecdotal at best” my ass. I will no longer “bother” you, or bother responding to your posts until you come off of your high horse and begin to discuss with some degree of honesty, the real issues at hand.
sjgouldrocks: don’t roll your eyes at me, newbie. I’ve covered this ground a half-dozen times if I’ve done it once. In 1997, the International Journal of Epidemiology conducted an international study concerning the availability of firearms and firearms deaths (from crime and suicide; IIRC, war as a reason was excluded as best as possible).
Their preliminary conclusion (which, they noted, was only preliminary and in need of further in-depth study and analysis) was that there was a possible correlation between firearm availability and crime; there was also evidence indicating that there was little, if any correlation between firearms avaiability and suicide rates.
You mention Japan? Well, public firearm availability is severely restricted in Japan, to the point that firearm ownership runs about “N/A,” meaning that Japan has such a low public availability of firearms that it is, in effect, a gun-free country (outside of the police and military, of course). Japan has almost zero suicides-by-firearms.
Yet Japan has slightly more suicides (suicides per 100,000 people) than the United States, where suicides-by-firearms account for about 59% of all firearms deaths.
This suggests the strong possibility of a “transferrance of methods” amongst those truly willing to take their own lives, and that the availability of firearms has little impact on the suicidal.
As such, suicides by firearms should quite possibly be dropped from firearms death statistics, inasmuch as these satistics are used by gun controllers in their advocacy of increased gun control. When controlling for suicides-by-firearms, the deaths from firearms (crimes and accidents) in the United States drops to about 40% of the widely touted rates of 10 to 12 per 100,000. While still higher than some countries with increased firearms restrictions, it is also less than other countries with increased firearms restrictions.
This suggests that there may be less correlation between firearms availability and firearm crimes and accidents than gun controllers may be comfortable with.
:wally
Others Generally:
As far as the Constitution and Bill of Rights are concerned: YES. There was a concensus. The first, second and third drafts were rejected. This went on through subsequent drafts until a version was reached that could be ratified by a supermajority of not only conventional delegates, but of the new-found state’s legislatures as well.
As far as any dissenting voices over this-or-that provision, that was the debate that led up to the final agreed-upon version. Were there still dissenters? Sure. But the measures were still carried by a supermajority. Fifty-five delegates met in May of 1787 to begin drafting the new Constitution. When the final draft was signed that September, thirty-nine of the remaining forty-two delegates signed on. That’s 92.9% (rounded up from 92.857%) for the math impaired. Where the other 13 delegates went is a mystery not addressed by either my American History text or my instructor, Dr. George Knight.
Still, the new Constitution had to be ratified, and all of Hamilton’s eloquence in the Federalist Papers couldn’t side-step the Anti-Federalists demand for provision guaranteeing individual liberties. It wasn’t until 1790, when the final draft of the Bill of Rights was signed by Rhode Island, the the Constitution and its [first] Ten Amendments were adopted.
So I think is it a safe assumption that individual liberties were a key issue, including the right of individual citizens to keep and bear arms.
Key passages from Federalist Papers #29 are often overlooked:
It is interesting to note that the Anti-Federalists also wrote quite a bit concerning the shape and scope of the new proposed government; yet they are hardly ever mentioned, even as some of the Federalist articles were in direct response to Anti-Federalist concerns codified into published articles! That the Anti-Federalist positions are at best implicit is somewhat telling (to me at least) about the emphasis our educational system places on how we as citizens view our federal government.
(Here’s an interesting link for the Teeming Millions: The Constitution Society.)
So, I think that it is fairly resolved that, to a great many Americans, then and now, that the right of the people (at-large) to keep and bear arms (for shooting tyrants, for national/state/municipal defense as the organized or unorganized militia, for home defense, for self defense, and for other lawfull uses such as hunting and target shooting) shall not be infringed.
It may be regulated to some degree or another for general public safety. At some point regulation becomes infringement. As I posted earlier, I believe we are close to that line, but have not [quite] crossed it yet, some municipalities and states notwithstanding.
EXCELLENT!!!
Extank much of what you have said, including your reference to Federalist number 29, has been addressed. Federalist 29 does not explicitly state individuals have a right to possess guns unrelated to a militia.
Nor does Federalist 29 lead to the conclusion there was a consensus among the Framers for the people to have a right to keep and bear arms. Federalist 29 was composed by one man, expressing only one man’s thoughts, and not those of anybody else. Additionally, the thoughts expressed in Federalist 29 do not unequivocally spell out an individual right to bear arms unrelated to the militia. Rather, Federalist 29 can and has been construed to support the contention that the right to bear arms is in relation to a well regulated militia.
The composer of Federalist 29 first addresses a proposal for the keeping of a well regulated militia and finds the necessity of having to meet regularly and often would be to much of an incovenience and impratical to attain the degree of perfection necessary to constitute as a well regulated militia.
So the composer goes to the next alternative and say the people should be properly armed and equipped and then necessary to assemble them once or twice a year. Again, the author of Federalist 29 is still talking about gun ownership in relation to the militia and not some individual right unrelated to the militia. Since Federalist 29 does not unequivocally speak of a right of the individual to bear arms unrelated to serving in the militia, it is futile to rely upon it to reach such a conclusion.
Jimmy1:
:sigh:
An most excellent example of legalistic hair-splitting if I ever saw one.
You’ll go very far in the legal profession.
You apparently completely ignored the following paragraph. And haven’t read your Blackstone (Tucker ed.).
And neither does the Constitution explicitly state that individuals have the right to possess guns unrelated to a militia, but that does not mean that the people do not have that right.
Noting that individual freedom and liberty were the primary precepts of the Founding Fathers vision of America and the guiding force for the Framer’s construct of the Constitution, the case could more easily be made that “We the People” do have the “right” to possess firearms for use other than for service in the militia. This theory is addressed in the Ninth Amendment.
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Sorry, but it is no such thing. I don’t hold people to different standards. I hold people to the academic standard of proof. Lott fails it. It’s as simple as that. And on the level of simple statements of correlation, there are numerous more studies that suggest a positive correlation (i.e. guns up, number of lethal incidents up) than negative.
Being a bit more aware with the state of academic discussion has nothing to do with hypocrisy. Having lived several years in both a high gun environment and a country with strict gun regulation is also quite enlightening.
I hate to break it to you, but I HAVE read Lott/Mustard. I also have read numerous excerpts from MGLC. Fundamental reasoning doesn’t make up for lack of data.
I am sorry that it bothers you that I discuss on an academic level of evidence, but being in academia, that’s what I do. Wishful thinking does not provide a sound basis for policy. Neither do anecdotes.
How does it suggest that? I would rather state that the fact that parts of Japanese society had a historic CULTURE of suicide and the huge pressure for performance on many in Japan are confounding factors that need to be controlled for.
Which shows nothing, until those countries are analysed in detail. It is well-known, for example, that many northern countries have a high suicide rate in the long winters.
I think it is fairly resolved that the right to keep and bear arms was seen in specific contexts, and that carrying guns at leisure was not among them. Shooting tyrants, national/state/municipal defense, hunting and target shooting are misleading arguments, since all of them are possible in countries with even very strict gun regulations, one of which even DEPENDS on a militia for national defense.