Which "arms" should be protected by the Second Amendment?

Great Debates
181

Where ever you got your strawmen from, I hope you got them at a volume discount because they aren’t very good and are quite obvious. Let’s list them out (I’m adding numbers for easier reference):

[ol]
[li]No one has introduced the NRA except you. What do their publications have to do with anything? Introducing this is a strawman.[/li][li]No one took as obvious that a woman of smaller stature would be helpless if unarmed against a larger attacker. There was no general comment about women. Caetano however, had already been previously hospitalized by her abuser. In that instance, while she may not have been helpless, she certainly didn’t fair well. In general, women tend to be smaller than men, have less upper body strength etc. This doesn’t mean that all women of smaller stature would be helpless if unarmed against a larger attacker. And since no one made a statement to this effect, this is also a strawman.[/li][li]Again with the NRA. Did you notice the NRA wasn’t involved in this case, or this thread? However that organization wishes to frame things is not relevant, and the introduction of this is a continuation of the strawman.[/li][li]No one implied that women are helpless if they lack a handgun or stun gun. You introduced this idea and it is a strawman.[/li][li]Notice a theme? No one has introduced any idea from the NRA. In reviewing the thread, you seem to mention them quite a bit. No one stated the unarmed are helpless and your introduction of this idea is a strawman.[/li][/ol]

Your continued focus on the NRA is somewhat comical, but what’s even more transparent is that even with your giant fortress of straw that you’ve constructed, you still failed to answer the question you quoted. Let me restate it for you:
So do you, Measure for Measure, believe that Caetano should be a convicted felon, that stun guns should be outside the scope of the 2nd amendment, and that Caetano who is nearly a foot shorter and close to 100 pounds lighter than her abuser should not have used a weapon to defend herself and instead relied on… a layered defense approach including deescalation, voice, stance and flight?
Feel free to parse your answer to each of the three clauses.

I did want to address one aspect of your fortress of strawlitude:

You seem to think the NRA is a self defense organization - they are not. They promote guns and gun rights. But even if they were a self defense organization, this conclusion you are drawing is absurd and based on the flimsiest of inferences. Watch, let me give you an example to illustrate:

When Republicans offered universal background checks with the Coburn amendment, Democrats rejected it. So when a Democrat talks about wanting universal background checks, just laugh.

But the thing is, when a Democrat says they want universal background checks, I believe them. And I’d be embarrassed if I actually made the argument above because it’s so transparently bad.

I can’t speak for everyone since folks aren’t a monolithic group. Heller was a great step forward but it did create some oddities with how 2nd amendment jurisprudence would be analyzed. The limitations envisioned in Heller fall into a few categories - The mentally ill, felons, sensitive places, dangerous and unusual arms, and arms not in common use. Those categories are the most clear, but there are a few wobblers. Within each category there is a lot of nuance, but generally it’s the last two that are relevant when we are talking about specific types of arms. The first two categories are types of people, and the third is location based restrictions.

The oddity created by Heller is the criteria of ‘in common use’. It makes it seem as though if something is rare, then it can lose its protected status. It does encourage widespread ownership of a large variety of weapons to ensure that those weapons continue to be common, while simultaneously seeming to reward unconstitutional prohibitions if they are successful enough at making things uncommon.

A general rule of thumb I personally use is what police typically use. Whatever they have, I should be able to have. Going further, I think an argument can be made to cover arms a typical soldier might be able to wield. This would include select fire weapons. I personally think the NFA is unconstitutional and should be litigated, but only after many other incremental victories. It would be fruitless to target the NFA too early.

I’m not familiar with flamethrower laws. I personally can’t see them being effective as defense weapons, but I’m pretty ignorant as to their usage.

All of this is just my opinion since there hasn’t been a lot said by SCOTUS. This ruling in Caetano is pretty clear and does foreclose many arguments made by lower courts so hopefully this will yield some progress. I don’t wear a black robe to work so my opinion is worth what you paid for it - but I do think my arguments are sound.

182

Of course they are!

Are you not aware that there is a monolithic group called Law Abiding Gun Owners™ who apparently can do no wrong, ever? And then there is another group called “actual human beings” that gun nuts don’t like to talk about. You know, actual real people who have infidelities, divorces, angers, resentments, and maybe the occasional need for retribution or they need money very badly or they’re just plain off their rocker.

No, much better to just focus on the Law Abiding Gun Owners™ monolith and ignore reality. It supports this kind of entertainment.

On a completely unrelated note, I keep pondering the mystery of why the US has orders of magnitude higher gun death rates than other first-world nations. But that’s a topic for another time, right?

Oh, what the hey, I’m sure flamethrowers should be covered by the 2nd Amendment.

183

How many times would you have killed someone if you had had a gun? A rough estimate will do.
How many times have you broken laws that, if convicted, would have resulted in you being prohibited from possessing firearms?

184

Why aren’t Stingers arms in context of the Second?

The Second does not mention arms being necessary for self defense. It mentions them only necessary for a well regulated militia. We’ve determined above having arms are necessary to establish a militia so one must not necessarily BE in a militia to own arms. Since a militias purpose everywhere and throughout time was civilian military why should private civilian ownership of military weapons be restricted?

185

And yet as zipper1221 pointed out the Internet doesn’t run afoul of The First Amendment. Why? It was invented long after.

That’s great you’ve drawn that line, I don’t see how it’s defensible or not entirely arbitrary. Either the Second means what is says or it does not, proponents are cherrypicking like crazy around here.

186

Stingers are effective for defending oneself against attack helicopters. Presumably, if the founders intended to cover weapons that did not exist at the time of the enactment they also intended that the underlying right should extend to threats that did not exist.

So why does the Second Amendment not apply to Stingers?

187

Have you read Heller? Serious question. Do you think Stingers are in common use, and are not both dangerous and unusual?

I should have clarified this above:

This was with respect to select fire weapons and suppressors. I think the NFA is on solid ground with respect to destructive devices.

Do you think stun guns are covered under the 2nd?

188

What country are you from? Around the world it happens with regularity.

189

Around the world, people avoid getting shot and killed with regularity. But experience elsewhere does not apply to the gun control debate if it’s inconvenient, does it?

Are you asserting that only the number of firearms in private possession is what prevents a military coup in the US?

190

Including black ones.

The Constitution is simply silent on that point.

Does that also entail the same training and discipline as the police and the army have? The amendment calls for militia, even by the broadest and most strained definition, to be well-regulated, after all. Are you willing to submit to LEO and Army-level regulation in its full glory?

I won’t even ask where “self-defense” comes into it anymore, since you’ve blown way past that.

191

I freely admitted I have trouble with the question. What distinction I drew, if it is not indeed arbitrary, is that shooting down an airliner isn’t just mass murder- it’s air piracy: an act that is Hostis humani generis I would hold the same standard to apply to chemical, biological or nuclear terrorism.

Or perhaps to use a simpler standard, is a weapon available to civilian police forces? If police aren’t a privileged class than at a minimum full-auto rifles and submachine guns should be legal.

192

Not directly perhaps; but I do believe that in the broader sense private possession of firearms upholds a general principle in our society that the people are not subjects. We’re not peasants, told to shut up and do what we’re told by our “betters”, who of course will always have guns. Even someone as liberal as George Orwell expressed a similar view. Or to reduce it to a slogan:
“To own firearms is to affirm that freedom and liberty are not gifts from the state”- Jeffrey Snyder

Admittedly; but unless you subscribe to the notion that the Second Amendment was intended to have a meaning 180 degrees reversed from every other contemporary writing on the subject, then the presumption is that the armed populace was considered precedent to the government itself; literally, the guns were here first.

The Army is a separate issue because people in the military are subject to duties and regulations not binding on free citizens (one reason Enlightenment-era English loathed “troops”). As for police- what training and discipline? 95% or better of their training relates to matters having nothing to do with guns. Of the remainder, most of it boils down to “don’t take your badge as a license to kill people”, and a minimal range practice requirement that many private gun owners surpass.

193

I guess the thread has moved toward the title question, rather than the OP one

What arms should be permitted is a different matter than what are, by disinterested reading.

194

Pennsylvania is typical of the states for police training. Police officers in PA receive 40 hours of firearms instruction at the academy. This is out of approximately 800 total hours of instruction. See the Lackawanna College academy’s details here. Their academy meets state requirements and so is similar to academies at other colleges and universities in PA. This 40 hours is all the instruction most cops will receive in their entire career.
In PA, armed security guards who do stuff like watch parking lots are required to have Act 235 certification. It, like police academy firearms training, is also 40 hours.
Checkthis shit out. 1250 hours to become a licensed cosmetologist versus approximately 800 to be a cop or 40 to be armed security.
I knew some cops and deputies who were, indisputably, expert with their firearms. None of them got that way thanks to their police training.

195

I think stun guns are probably covered by Heller. But Heller is a mishmash of bad history research and bad legal reasoning that bears little resemblance to anything to do with the Second Amendment.

196

I thought we were talking about the US. But if you’re talking about North Korea, then you suddenly make sense.

197

Just the ones after WW2 take up half the page. And even disallowing one dictator overthrowing his predecessor, the phase “democratically elected” (past tense) and “dissolve/d parliament” show up distressingly often.

198

Not sure what to say here. I had 2 posters express skepticism about the prospects of woman in question if she didn’t wield a stun gun. The quote said it was a good thing she did have a stun gun. The clear implication is that she would in serious trouble without the stun gun. Do you deny this? Are you conceding that the stun gun wasn’t necessary to her self defense, as she was in a public area? Do you concede that the implication that her assailant fled the situation was not necesarily caused by the weapon in question - or to be more specific that while it might have been a proximate cause, it wasn’t necessarily an ultimate cause?

There have been no strawman arguments introduced. A strawman argument consists on an attack on an argument that nobody has made or would make. I refer to the NRA as they are a predominant advocate for gun culture- more guns, all the time.

So do you, Measure for Measure, believe that Caetano should be a convicted felon, that stun guns should be outside the scope of the 2nd amendment, and that Caetano who is nearly a foot shorter and close to 100 pounds lighter than her abuser should not have used a weapon to defend herself and instead relied on… a layered defense approach including deescalation, voice, stance and flight? I answered this. I said that women’s shelters should be permitted to issue weapons licenses. If you want 2nd amendment jurisprudence, I take an original intent approach. A plain reading shows that a statement that was later shown to be empirically false, followed by a conclusion. The founding fathers were awesome - they anticipated future gun nuttery and worded their text accordingly. As there are plenty of free states around the world without well regulated private militias the 2nd part of the sentence of the 2nd amendment is null and void. Which is a shame, since I think properly regulated weapons can be useful tools. But that’s the plain reading of the text.

If you want to make private gun ownership a right, I suggest you pass an applicable constitutional amendment, one that doesn’t bring up militias.

As for the layered defense, I again oppose the implication that the woman would be helpless with a stun gun. I outlined alternatives, ones that decades of NRA agit prop has led too many people to overlook.

ETA: Obviously, SCOTUS disagrees with me, but I don’t think that’s what you were asking in your paragraph. Were you asking for my understanding of SCOTUS precedent?

199

Sure. Do you want to go over your rationale that “Heller is a mishmash of bad history research and bad legal reasoning that bears little resemblance to anything to do with the Second Amendment”? I can’t really speak to the legal reasoning bit, so feel free, but I can say that it’s not a ‘a mishmash of bad history research’ nor does it bear ‘little resemblance to anything to do with the Second Amendment’. But feel free to go through your thinking on these things…I’m certainly interested to see where you are coming from on all of this.

200

The second quote is from Measure for Measure, FYI. I’ve explained it in several past threads here, and I don’t want to hijack this one since it’s not specifically related to Heller, so I’ll give you the 30 second version:

  1. The claim that the militia clause is “prefatory” is simply ridiculous. No other SCOTUS opinion has ever handwaved away constitutional language like that. As Marshall put it, “it cannot be presumed that any clause in the constitution is intended to be without effect.”

  2. Scalia constantly excoriated other justices for expanding fundamental rights that went beyond those “deeply rooted in this Nation’s history and tradition” and inseparable from “ordered liberty,” some of the language from prior SCOTUS cases addressing which rights were fundamental. In Heller he claimed that the right to own guns for self-defense was such a right, but it had not been recognized as one deriving from the federal constitution for at least 150 years.

  3. As far as the bad history goes, I recommend you read Stevens’ dissent in Heller, which shows that Scalia basically cherry picked sources that agreed with him and that were not contemporaneous to the adoption of the amendment.

Having said all that, I do think the Second Amendment establishes rights beyond those that it was considered to protect prior to Heller. It’s just that the opinion is a terrible one and made Scalia a colossal hypocrite.