Sure. I didn’t think it was that complicated. You stated I was “wrong” about the Miller ruling. In evidence you supplied this quote about it, which I believe is part of Scalia’s rationalization in Heller:
Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.
I never made the claim that Scalia is refuting. I’ve never asserted that the crooks were serving in a militia, or that anything about the case hinged on that. I’ve said this multiple times now. How does this quote show me to be “wrong” about the Miller ruling?
OK, there is only one appropriate way to respond to that comical OCD pattern of argumentation. I think it might get the point across even to someone who – as I recall from prior conversations – appears be humor- and sarcasm-impaired. I have not highlighted the key words in red, but I can do so later if it helps.
With apologies to Ogden Nash, I offer my adaptation: “Bone Corrects an Egregious False Claim”:
I give you now the poster Bone,
A finer scholar has ne’er been known.
He knows guns and laws and what words mean,
He knows everything in between.
The NRA exclaimed, “He never bungles!”
And sent him off to distant jungles.
Camped on a tropic riverside,
One day he missed his loving bride.
She had, the guide informed him later,
Been eaten by an alligator.
How egregious this lie Bone knew,
This was not a claim that could be true.
The poster Bone could not but smile.
“You mean,” he said, “a crocodile!”
I don’t, and I wasn’t. My point was always about the tired tactic of accusing liberals of hypocrisy (and pretending to be amazed/baffled/bemused by it) where no hypocrisy exists.
Interestingly, the accusation is typically aimed at “liberals” in general, rarely any specific liberal.
wolfpup, creative insults and still insults. Accusing Bone of OCD is not responding to his arguments but rather an attack on him. Don’t do it again. If you must, please take it to the Pit.
I wonder if instead of high income you looked for societies that are as pluralistic as the United States and the examine the rates of violence there. There are advantages to monoculture which most European countries have.
So are you still clinging to the false idea that SCOTUS has only ever held the 2nd amendment granted something? You may consider it OCD-like to focus on this error and false claim that you’ve made, but again I consider it a threshold item. The reason it is that way is because when you make obviously false factual statements and refuse to acknowledge them, there is no expectation of a productive dialogue. Why would I engage in a discussion with a person who makes obviously false statements and refuses to acknowledge them? We all make mistakes - but when we do I find it best to acknowledge them.
You were responding to DrDeth who stated that “Miller did not rule that the 2nd only applied to Militias” to which you responded:
*"You need to read Miller more carefully: … Suffice to say that Miller and Presser both extensively based their decision on the militia question. "
*
From this I interpret your phrase “militia question” to be the one that you are directly responding to, that Miller did not rule that the 2nd only applied to Militias. Have I interpreted your claim in a way you did not intend? What is this “militia question” you refer to if it is not related to the status of a person?
Miller was not based extensively on the militia question to the extent that refers to someone’s status as members. Whether or not the defendants in Miller were part of a militia or were engaged in militia activity was not critical to Miller. Miller was about types of weapons, not people. This is what SCOTUS has held.
What text would unambiguously mean that the federal and state governments could not infringe on the right to bear arms, or at least could only do so in the same way that they infringe on the right to free speech?
In other words, some commentators say without blushing that the words of the two amendments should indeed be interpreted with differing standards. I want to know if there are words that could appear in the text to actually secure the right to keep and bear arms.
First of all, my sincere apologies for the OCD comment, and I’m genuinely surprised at the reaction it garnered. It was not intended as an insult (posters I feel like insulting either hear about it in the Pit or I don’t respond to them at all) but rather an observation about the way you’re doggedly pursuing a complete non-issue that has nothing to do with the substance of the discussion. If there is something about the “granted” reference that you feel is significant, I honestly have not been able to grasp what it is and how it could possibly be relevant to the discussion. If it makes you feel better, it appears (and was news to me) that in 2nd Amendment rulings Courts have used words like “secured” and “guaranteed” and not, AFAIK, “granted”, although “granted” and “conferred” and the like are used all the time in informal conversation, and as we can agree, the nature of 2nd Amendment rights is at best debatable. However I fail to see how this changes or advances anyone’s argument.
Anyway, what makes the original Ogden Nash poem funny (the title of the original is “The Purist”) is the described subject’s obsession with using exactly the right word when that would be the last thing anyone would think about in the circumstances, so I thought it was appropriate. As in your claims about “granted”, it simply has nothing to do with the substance of the discussion.
Yes, you have interpreted my claim in a way that I did not intend and did not say.
This should be clear if one goes back to the very first comment I made on the subject: “One of the decisive aspects of Heller was that, for the first time, the 2nd Amendment was ruled to be an individual right for individual purposes, something that many constitutional scholars believe has no historical justification and is just plain wrong” followed shortly after by the following “The notable thing about Heller was ruling that the preamble ‘A well regulated Militia, being necessary to the security of a free State …’ was basically decoration, and that the real essence of it was what followed, and that it guaranteed the right to bear arms for such purposes as personal defense.”
The point I’m making that I thought was obvious is that for a hundred years the Court has either connected the rights in the 2nd Amendment with the militia clause, or steered clear of the issue altogether. Heller for the first time not only attacked it head-on but decided that the stated rights had no connection with the militia clause at all, which many scholars, based on historical evidence, think is a grossly incorrect interpretation. Miller was a case where the militia clause figured prominently. It matters not a whit whether they were talking about the accused being members of a militia or not, or the weapon in question being suitable for militia use, because if the Court had entertained the belief of Scalia et al. that the militia clause was “merely prefatory”, none of those things would have been relevant at all.
Is this the meat of your claim then? That the court has connected the rights in the 2nd with the militia clause? I think Miller does this, but not to the exclusion of other criteria, and only to the extent that it contemplates types of weapons. Weapons suitable for militia purposes are what Miller discusses.
Another problem with your phrasing is that it is non-specific such that when you say “connected the rights” I can’t tell which rights you are talking about. If you are talking about collective rights, then I would object. If you were talking about weapon suitability I would agree. But you haven’t been specific enough to delineate. If you rephrase more clearly then I could respond further.
So here it seems like you are quoting the Heller opinion with the “merely prefatory” language. Heller doesn’t say this quote though so I’m not sure why you’d paraphrase in this way. Was that intentional? Here is a part of Heller that describes the prefatory clause and its significance:
The prefatory clause announces a purpose, not the only purpose. It also does not limit or expand the scope of the operative clause. Nothing there can be considered “merely prefatory” as you have written.
The idea that it doesn’t matter whether Miller was talking about the accused being members of a militia or not, or the weapon in question being suitable for militia use is very strange. It matters quite a bit. The former is talking about a collective rights analysis - to determine if the people were members of a militia. The latter is talking about the type of weapon that would fall under the 2nd amendment arms. The latter approach supports the individual rights argument and the former would support the collective rights argument. It absolutely does matter, and it did matter in Heller. Heller was consistent with Miller:
Those precedents include Miller. In other words, Heller didn’t overrule anything in Miller, yet the analysis was still relevant despite your claim otherwise. This is because Miller stood for the types of weapons at issue, not the collective rights argument that it was twisted into and rebuked in Heller.
I don’t know their answer would be, but I have envisioned what I would ask the framers on the subject:
“Sirs; the contention has arisen that the right of the people to keep and bear arms is only to be exercised by those under discipline- those duly called to muster and under the command of an officer of the militia. That without such public duty, the keeping and bearing of arms may be entirely proscribed; and that the Congress, if it so chooses, may prohibit the keeping and bearing of arms by any person not eligible to serve in arms. If this is not your intent, why then is the second Article (i.e., the second Amendment) written using a dependent clause, in appearance requiring a justification of that right?”
Because every bloke with half a brain knows that a man needs a rifle. We wanted to make sure that he had a proper rifle and that when called up he didn’t show up with somee POS antique that would be more harm to him and his mates than to the bloody Redcoats!!! I regret that I have but one amendment to give to my country!!
“Sir, you misapprehend us! The militia is the people: all able-bodied men. We have no wish to allow Congress the power to proscribe the right of any such person to keep and bear arms, be he subject to call of the militia or, perhaps by reason of advanced age of infirmity, somehow exempt from such summons. How might we phrase this amendment to thus constrain Congress?”
The meaning of “connected with” is the straightforward meaning that you cannot remove the “militia” preface and still claim that the 2nd Amendment guarantees an intrinsic constitutional right to possess and bear arms. It’s saying that you must take the Amendment as a whole and you can’t pick and choose which parts of it you particularly like.
Some believe that this connection is clearly the intent of the framers, others disagree. The Scalia ruling in Heller took the disagreement to a whole new level and essentially relegated the “militia” clause to the dustbin as just decoration and not the reason for the 2nd Amendment at all.
The “merely prefatory” in quotes was quoting one of the cited legal analysts about the Heller decision, not the ruling itself. The word “merely” in the analysis reflects the commentary on the real and actual impact of the ruling, which explicitly stated that there allegedly were other, more important factors driving the inclusion of the 2nd Amendment, such as the ones you quoted:
The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.
It doesn’t take a constitutional scholar to wonder why, if those things were “even more important”, they were never included in the Bill of Rights. Nowhere in the Bill of Rights do we find “self-defense” or “hunting” or “plinking beer cans off a fence post” enumerated as fundamental human rights. And despite your obvious disdain for the values of the rest of the world, at least when it comes to guns, one can also wonder why such an allegedly fundamental human right only exists in one particular nation in the world, which nation also happens to have an extraordinarily high degree of gun-related fatalities.
At the time the Second Amendment was passed, the “values of the rest of the world” consisted of being unconditionally subject to a monarch or despot. As Madison put it:
I disagree. I think that one is able to take the amendment as a whole and still conclude that the 2nd Amendment guarantees an intrinsic constitutional right to possess and bear arms. However, the right is really about effective self defense, it just so happens that arms, and handguns in particular, are the sort of self defense weapons that are squarely under the umbrella of the 2nd amendment. As Heller states, the prefatory clause announced A purpose, not the only purpose. It has meaning even while guaranteeing an intrinsic right to possess and bear arms.
I don’t think this ‘dustbin’ comment is accurate at all. The militia clause is still critical to understanding the scope of the 2nd amendment in that it provides a guide for the types of weapons most applicable to the 2nd amendment.
That’s one problem relying on commentary rather than the opinion itself. I think when there are items of ambiguity in judicial interpretation then this type of analysis is entirely warranted and welcome. In cases of legal doctrine where there is clarity, it’s far superior to go to the source. Heller clearly contradicts the idea of “merely prefatory” so any analysis that makes that statement is fundamentally weak. If over time lower courts and even SCOTUS render opinions that lend credence to this characterization, then the analysis would be more persuasive but that has not happened.
I could not find the complete study for the first item, nor the second item, but it appears that Hemenway published a follow up study to the 1997 study in 2000 that included the results of the 1997 study. In this one, a convenient panel of anonymous criminal judges from California, Pennsylvania, and Massachusetts were selected to evaluate claims of defensive gun use. From the study:
Quite a few problems there. So what the previous article bases its conclusions on is faulty.
Next up,Firearm-related deaths in the United States and 35 other high- and upper-middle income countries
More cherry picking countries, and comparisons to other countries. Yawn. This study purposely excludes all incidents of legal intervention, whatever that is defined to be. This study also has no mention of defensive firearm use so again, it’s not at all relevant to the claim I think you’re making.
Next up: Rates of Household Firearm Ownership and Homicide Across US Regions and States, 1988–1997. This study suffers from some of the same weaknesses of the first, in that reverse causation is not addressed. This is a major problem with many of the studies that purport to show or try to link higher rates of violent crime with higher firearm ownership. Looking at table 3 teases this out a bit - those that are living in the “high gun” states have increased risk of non firearm death well above the “low gun” states. In other words, there is something beyond the guns that make those places more dangerous. Combine that with the weakness of potential reverse causation and this study isn’t very useful either. This study also has no mention of defensive firearm use so again, it’s not at all relevant to the claim I think you’re making. Also, a Hemenway study funded by Joyce so there’s that.
And that’s it for the studies where there are full texts available. So of the five, four had no mention of defensive use and the one that did relied on a poorly crafted model. These do not support your claim very well at all.
No one has suggested that the Second Amendment was written with ill intent. It served a purpose at the time and place, just like the Third Amendment about quartering soldiers. The controversy that surrounds it is about what purpose it serves in the modern era, and about its unintended effects in modern society.
Fine, you’re entitled to disagree. You stated that the phrase “connected with” was unclear and asked for clarification, so I explained what I meant. The fact is that a substantial number of historians and constitutional scholars take issue with your interpretation, as did the strong and eloquent dissent of four justices.
It’s also a fact that the Court as presently constituted would not be able to make the same ruling, and that a Court as it might be constituted in the future might plausibly reverse Heller, given a suitable opportunity. You seem to imply (if I’m reading your words correctly) that this ruling was supported by a clear legal doctrine, yet it was a bitterly divided 5-4 decision which became extremely controversial.
I don’t dispute those numbers or the conclusion in the last sentence. But let me give you some other numbers. 87% of American scientists but just 32% of the general public believe in evolution. 53% believe in either young earth creationism or that evolution is guided by God. 87% of all scientists (and about 97% of climate scientists) believe climate change is mostly due to human activity, but only 50% of the public does.
The reasons for these beliefs vary. I would speculate that on evolution, counter-factual opinions are held in part because the facts are at odds with religious beliefs, and in part because the facts are counter-intuitive: it’s hard for people to fathom the timescales over which evolution operates, and to imagine complex organisms thereby arising spontaneously. And on climate change, I would speculate that a good part of the reason counter-factual beliefs are held is that there are vested interests actively promoting them.
It seems to me that American views about guns are influenced by an insidious combination of all those factors. There is a historic and cultural element that tends to promote gun culture. Then there is an intuitive element driving the belief that possession of a gun provides protection, and it is counter-intuitive to believe that a gun in the home is many times more likely to be involved in a domestic tragedy than to protect the possessor. At the same time there are ideological and commercial vested interests, like the NRA, constantly hammering the public with disinformation. And there may also be a vicious circle wherein the more one hears about gun violence, the more one is inclined to try to protect oneself with a gun, a view vigorously promoted by the NRA.
You’re absolutely correct that there is no hope of passing a constitutional amendment to abolish the Second Amendment, so great is the disconnect between the required threshold and public beliefs. The tragedy is that it’s not even possible to pass meaningful gun control legislation, even without Heller as yet another obstacle. In practice it’s politically hazardous to talk about gun control at all, just as it tends to be politically hazardous to talk about emissions reductions to mitigate climate change. A politician who talks about both may not be able to get elected dog-catcher. This is indeed a reflection of what “the people” believe, but the reasons for it are not supported by the facts and the consequences that inevitably ensue are a function of facts and not beliefs.
Yeah, but gun control involves more than just facts. Do we subject free speech to empirical measurements of its usefulness, or do we just accept that people have the right to believe and advocate for what they believe, regardless of whether it’s good for society or not?
Now the thing about gun rights, is that gun rights are basically self-defense rights. If you repeal self-defense rights, then that implies a duty to protect on the part of the government. Until the government accepts a duty to protect, they can’t morally repeal our right to effectively defend ourselves. And until pre-crime becomes a reality(See: Minority Report for those who don’t get the reference), you are on your own until you can a) contact the police, and b) hold out until they get there, and c) even then police are under no obligation to help you if it endangers them. That has to change if we have no right to self-defense. Government agents would have a moral obligation to protect us no matter the risk to themselves.
But here’s the thing. Do you want us to re-write it? If we do, there will be no mention of militia and there will be an explicit listing of an individual’s right to own a gun. That’s mainstream American thinking in 2016-- just look at any poll on the subject. I, personally, think the 2nd is anachronistic. But that’s not what most Americans think. Even if we, as a whole, favor tighter gun control, we don’t, as a whole, favor abandoning the right to own guns.