Essentially, the 2nd Ammendment doesn't give individuals the right to own a gun: it gives militas those rights.
Nothing new here, I'd just to see Rob and Omega bumble their way through this with their claims of "Founder's Intentions" and other such nonsense.
quote:Pro-gun advocates claim that this amendment guarantees their individual right to own a gun, and that gun control laws are therefore a violation of their constitutional rights. In fact, the term "violation of our Second Amendment rights" has become a battle cry in gun lobbyist literature, repeated everywhere in their editorials and essays.
However, this raises a fascinating observation. If gun control laws are so obviously a violation of the Second Amendment, then why doesn't the National Rifle Association challenge them on constitutional grounds before the Supreme Court? The answer is that they know they face certain defeat, for reasons we shall explore below. Consequently, the NRA has abandoned all hope in the courts.
Instead, the NRA has chosen to lobby Congress to prevent gun control legislation, and has become in fact one of the most powerful lobbies on Capital Hill. This is a supreme and exquisite irony, given the conservative and libertarian's love of constitutions and hatred of democracy. But, at any rate, the NRA is fighting for its perceived constitutional rights on Capital Hill, by bribing our legislators with millions of dollars in campaign contributions.
The reason is because the Supreme Court -- this nation's final arbiter on the interpretation of the Constitution -- has always ruled that the Second Amendment does not extend the right to keep and bear arms to individuals, but to the well-regulated militias mentioned in the first part of the amendment. Specifically, these are militias that are regulated by the federal and state governments. Article I, Section 8 authorizes Congress:
[small]"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress."[/small]
The Founders were passionately opposed to standing peacetime armies -- in fact, Thomas Jefferson listed it as one of their grievances against the British Crown in the Declaration of Independence. Intent on eliminating this evil, they created a system whereby citizens kept their arms at home and could be called by their state militias at a moment's notice. These militias eventually became the states' National Guard, and the courts have always interpreted them that way.
In 1886, the Supreme Court ruled in Presser vs. Illinois that the Second Amendment only prevents the federal government from interfering with a state's ability to maintain a militia, and does nothing to limit the states' ability to regulate firearms. Which means that states can regulate, control and even ban firearms if they so desire!
Even so, this left a question about how much the federal government can limit a citizen's right to own a gun. In 1939, the Supreme Court addressed this issue in United States vs. Miller. Here, the Court refused to strike down a law prohibiting the interstate commerce of a sawed-off shotgun on the basis of the Second Amendment. Rejecting the argument that the shotgun had "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Court held that the Second Amendment "must be interpreted and applied" only in the context of safeguarding the continuation and effectiveness of the state militias.
In other words, the federal government is free to regulate and even ban guns so long as it does not interfere with the state's ability to run a militia. Since then, both the Supreme and lesser courts have consistently interpreted the right to bear arms as a state's right, not an individual's right. At times they have even expressed exasperation with some gun advocates' misinterpretation of the Second Amendment.
In United States v. Warin, the Sixth Circuit Court of Appeals in 1976 upheld the conviction of an illegal gun-owner who argued that his Second Amendment rights had been violated. In pointed language, the court wrote: "It would unduly extend this opinion to attempt to deal with every argument made by defendant...all of which are based on the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the states."
In 1972 Justice William O. Douglas wrote: "A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment....There is no reason why all pistols should not be barred to everyone except the police."
Gun advocates have bitterly decried the "activist courts" that have supposedly changed the plain meaning of the constitution. But over 100 years of courts have interpreted a states'-rights meaning, and so has a broad body of constitutional scholars. Gun advocates simply have a different "plain meaning" of the constitution than everyone else, one that coincidentally legalizes their desired goal of owning weapons.
The only apparent recourse for gun advocates now is to reject the system of judicial review that has led to a perfect record of court defeats. But the alternative is even worse: trusting Congress to pass laws that respect our constitutional rights. On all other issues but gun ownership, the idea is anathema to conservatives and libertarians.
But even accepting the gun lobby's interpretation of the Second Amendment does not spare the gun owner from gun control. The amendment simply states that the people have a right "to keep and bear" arms. It says absolutely nothing about regulating them for safety, design or caliber. The gun lobby argues that the lack of of such language means that individuals are free to own any arms they please, and government cannot use constitutional silence to infer permission to regulate them. But this isn't true; look at the First Amendment. It simply says that "congress shall make no law... abridging the freedom of speech" -- yet the government regulates countless forms of speech -- slander, malicious falsehoods, fraud, insider trading, etc. -- and these regulations are upheld by the Supreme Court. The same principle applies to the regulation of guns.
This point becomes especially important when considering the regulation of arms by category. For example: do the people have a right to own nuclear weapons? (Pro-gun advocates contemptuously call this the "nuclear straw-man argument," yet they have not even come close to providing a satisfactory answer to it.) How about chemical and biological weapons? Tanks? Battleships? Bombers? In a society where people get drunk, angry, jealous, self-destructive and mentally ill, you certainly wouldn't want the unregulated sale of nuclear weapons on the market. Prohibition of such arms seems like the best thing to do, but, strictly speaking, that too would be a violation of the Second Amendment.
Some pro-gun advocates admit that a literalist interpretation allows the right to keep and bear all arms, including nuclear weapons, and that this is surely archaic. Certainly the Founders could not have foreseen or intended this situation. However, pro-gun advocates claim the correct reaction of modern America should be to amend the constitution to exclude ownership of nuclear weapons; creatively interpreting the constitution is the wrong way.
This is a curious argument, for a couple of reasons. First, the entire rationale of an individual right to keep and bear arms is to defend against a tyrannical government. But to surrender an advantage as overwhelming as nuclear weapons and smart weaponry to the government is irrational. Given the fanaticism of the gun lobby to protect themselves from government tyranny, this meek acquiescence towards weapons of terrible destruction is more than little strange, and begs explanation. It suggests that, down deep, the gun lobby is not really serious about its claim that government threatens them. (How could they be, in a democracy with high-speed, mass communication?) What is more likely is that they feel the need to empower themselves, and firearms are sufficient to fulfill that need.
The argument is also strange because it concedes a point to gun control; namely, that there are some weapons so deadly that they should not be allowed in society. That is exactly what gun-control advocates have been arguing, and you don't need nuclear weapons to achieve the feared results; the U.S. already has the high murder statistics to prove it with handguns alone.
The argument is also strange because the gun lobby fervently hopes to avoid public mobilization on a constitutional amendment limiting the right to keep and bear arms. A huge majority of Americans favor stricter gun control laws; and as long as they're excluding nuclear weapons they might as well throw in assault weapons and Saturday Night Specials.
But ultimately, calling for a constitutional amendment banning the ownership of nuclear weapons is moot. Individuals do not even have a guaranteed right to keep and bear firearms, much less modern military weapons. To overcome the Supreme Court on this issue, the gun lobby would have to promote fundamental changes in our political structure that would surely be disimprovements.
[ December 27, 2001: Message edited by: Malnurtured Snay ]
If I had a large amount of actual time, I'd pick through this argument bit by bit. But I don't.
(Incidentally, Snay has violated the Bilateral, Short Point-by-Point Posting Treaty of 2001. I move that sanctions be imposed.)
Simply put, it is Omega's (and sometimes my) contention that when the Supreme Court rules on a matter which contravenes the Constitution in any way (and that might include even libel laws), then the Supreme Court has erred.
Since we know that the Supreme Court HAS erred on occasion, permitting slave laws such as the Fugitive Slave Act, allowing the internment of Japanese Americans, etc (and no doubt, in Snay's opinion, in stopping the Florida Recountfest), this is not a far-fetched opinion.
The writer of the article also fails utterly to explain how "the people" in EVERY other amendment and mention in the Constitution, refers to each and every INDIVIDUAL, but in the Second Amendment, and ONLY the Second Amendment, it refers to the 'militia' or the states.
This is a glaringly huge assumption (although the same sort of one that Fundies make when they insist that yadha means 'to have homosexual sex with' in the story of Sodom, it is even more glaring because we understand English and know what the words in it mean.)
As for the 'power' of the NRA... surely it musn't be THAT powerful... otherwise they'd have won by now. The NRA's power pales in comparison to that of the TLA, (Trial Lawyers' Association), which is the single most powerful lobby in existence (think about it... most congressmen, judges, etc are or were MEMBERS), and the TLA always comes down on the side of the anti-gun camp.
quote:This point becomes especially important when considering the regulation of arms by category. For example: do the people have a right to own nuclear weapons? (Pro-gun advocates contemptuously call this the "nuclear straw-man argument," yet they have not even come close to providing a satisfactory answer to it.)
Actually, it's not only a straw man argument, but a slippery-slope fallacy as well. I wasn't aware that anything which could be identified as a blatant logical fallacy REQUIRED an answer, anyway. That's like pointing out to someone who says the sky is green that the sky is blue, not green, and that other someone still goes "but WHY is it green?"
quote:It suggests that, down deep, the gun lobby is not really serious about its claim that government threatens them. (How could they be, in a democracy with high-speed, mass communication?)
Carnivore, for starters. -or- This, from the same people who brought you "AIGH! Run for the hills! Ashcroft is crushing your rights!" Hypocracy in Action.
quote:A huge majority of Americans favor stricter gun control laws
Really? Stats? Reliability? Slant of questions? I don't think 40% is a huge majority... and that was BEFORE 9/11 pushed home gun sales up 200%.
The rest is sturm und drang.
[ December 27, 2001: Message edited by: First of Two ]
-------------------- "The best defense is not a good offense. The best defense is a terrifyingly accurate and devastatingly powerful offense, with multiply-overlapping kill zones and time-on-target artillery strikes." -- Laurence, Archangel of the Sword
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quote:Incidentally, Snay has violated the Bilateral, Short Point-by-Point Posting Treaty of 2001.
No, I didn't. I said I would only post relevent material, and that I would provide a link. Everything I posted is relevent.
Essentially, what this article proves is that:
a) The Second Ammendment doesn't give individuals the rights to own firearms.
b) The Founder's Intent (if Republicans really believe in it so much) supports that it doesn't allow individuals to own firearms, as it does for militas to exist. With militas existing (National Guard), individuals have no right to own said weapons.
posted
Essentially, what this article proves is that:
a) The Second Ammendment doesn't give individuals the rights to own firearms.
No, it proves that the Supreme Court thinks that.
b) The Founder's Intent (if Republicans really believe in it so much) supports that it doesn't allow individuals to own firearms, as it does for militas to exist. With militas existing (National Guard), individuals have no right to own said weapons.
Where?
-------------------- "This is why you people think I'm so unknowable. You don't listen!" - God, "God, the Devil and Bob"
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posted
My response is actually fairly similar to Rob's.
*YAWN*
To quote a certain Toronto-area band, it's all been done.
-------------------- "I was surprised by the matter-of-factness of Kafka's narration, and the subtle humor present as a result." (Sizer 2005)
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quote:No, it proves that the Supreme Court thinks that.
And that the NRA thinks that, since they won't press anything as a violation of the 2nd Ammendment.
quote:Where?
quote:The Founders were passionately opposed to standing peacetime armies -- in fact, Thomas Jefferson listed it as one of their grievances against the British Crown in the Declaration of Independence. Intent on eliminating this evil, they created a system whereby citizens kept their arms at home and could be called by their state militias at a moment's notice. These militias eventually became the states' National Guard, and the courts have always interpreted them that way.
In 1886, the Supreme Court ruled in Presser vs. Illinois that the Second Amendment only prevents the federal government from interfering with a state's ability to maintain a militia, and does nothing to limit the states' ability to regulate firearms. Which means that states can regulate, control and even ban firearms if they so desire!
Even so, this left a question about how much the federal government can limit a citizen's right to own a gun. In 1939, the Supreme Court addressed this issue in United States vs. Miller. Here, the Court refused to strike down a law prohibiting the interstate commerce of a sawed-off shotgun on the basis of the Second Amendment. Rejecting the argument that the shotgun had "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Court held that the Second Amendment "must be interpreted and applied" only in the context of safeguarding the continuation and effectiveness of the state militias.
In other words, the federal government is free to regulate and even ban guns so long as it does not interfere with the state's ability to run a militia. Since then, both the Supreme and lesser courts have consistently interpreted the right to bear arms as a state's right, not an individual's right. At times they have even expressed exasperation with some gun advocates' misinterpretation of the Second Amendment.
[ December 27, 2001: Message edited by: Malnurtured Snay ]
posted
And that the NRA thinks that, since they won't press anything as a violation of the 2nd Ammendment.
...or perhaps they just don't want to waste money going up against a court that doesn't care about the Constitution any more? Did that ever occur to you?
The presence of other possibilitiess that fit the facts negates your "proof".
Intent on eliminating this evil, they created a system whereby citizens kept their arms at home and could be called by their state militias at a moment's notice.
Sounds like they went for private ownership of weaponry to me. What things have evolved into is irrelevant to the Founders' opinions.
Now can we please end this tired repetition and get back to the usual, boring state of things in the Flameboard? Please?
[ December 27, 2001: Message edited by: Omega ]
-------------------- "This is why you people think I'm so unknowable. You don't listen!" - God, "God, the Devil and Bob"
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posted
Hell Rob and Omgea, why even have a Supreme Court then?
We'll just all carry our copies of the Constitution and beat each other over the head with what we think it means when we meet on the street.
As far as Guns47, why do this again.
[ December 27, 2001: Message edited by: Jay the Obscure ]
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quote:or perhaps they just don't want to waste money going up against a court that doesn't care about the Constitution any more? Did that ever occur to you?
No, I'm not paranoid.
So, the Supreme Court hasn't cared about the Constitution since the 19th century? Wow.
quote:What things have evolved into is irrelevant to the Founders' opinions.
Does this mean you'll shut up about 'Founder's Intent'? Because the Fathers' didn't seem to intend for those who didn't belong to a militia to have weapons.
[ December 27, 2001: Message edited by: Malnurtured Snay ]
So, the Supreme Court hasn't cared about the Constitution since the 19th century? Wow.
It would seem not. Hey, Rob, what was that case where the SC ruled that the Constitution does not, in fact, guarentee the right to free exercize of religion?
Does this mean you'll shut up about 'Founder's Intent'? Because the Fathers' didn't seem to intend for those who didn't belong to a militia to have weapons.
Intent on eliminating this evil, they created a system whereby citizens kept their arms at home and could be called by their state militias at a moment's notice.
You seem to be contradicting the article that you yourself posted. You're also ignoring the bit that says that "the right of the people to keep and bear arms shall not be infringed". As always.
Just where do you get the idea, FROM THE WORDING OF THE AMMENDMENT, that you have to be part of the militia to qualify as part of the "people" in question that have a right to keep and bear arms? And you've never answered Rob's question as to why "the people", for this ammendment ONLY, does not refer to ALL the people, as it does everywhere else.
-------------------- "This is why you people think I'm so unknowable. You don't listen!" - God, "God, the Devil and Bob"
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quote:FROM THE WORDING OF THE AMMENDMENT, that you have to be part of the militia to qualify as part of the "people" in question that have a right to keep and bear arms?
I'm just taking your lead and looking for a strict "Founder's Intent" view of the Constitution.
quote:It would seem not.
And yet, if you wanted to let it go, would you be posting? C'mon.
quote:And you've never answered Rob's question as to why "the people", for this ammendment ONLY
Because "the people" clearly speaks about those who are members of a militia. You know, like the Founding Fathers intended.
Da_bang80
A few sectors short of an Empire
Member # 528
posted
Since i'm not old enough to own a gun, I don't have to worry about gun control. But i wanna say that all the anti-gun freaks need to calm down. some of 'em probalbly never even picked one up. guns are dangerouse if it is used by someone who has no sense of human morals/rights. same with computer violence, and de-sensitization. But that's another topic. if someone buys a gun for the purpose of killing some guy who pissed you off at work, damn right you should go to jail. it's not that guns are evil. but it's the good or ill intentions of the people wielding them. also you should be trained in the use of the weapon. if there is anything i'd like to see more it would be mandatory to go through at least 6 weeks of instruction before you can even buy a gun.
-------------------- Grant me the serenity to accept the things I cannot change. The courage to change the things I cannot accept. And the wisdom to hide the bodies of all the people I had to kill today because they pissed me off.
posted
Not to mention that the risk of being shot is much higher if there's a gun in the house.
Back to Rob's question:
Rob, we don't let children or criminals, or many other people (depending on mental stability) own firearms. We let them have many of their other rights (free speech, etc.), but even most Conservatives should recognize the need to limit certain groups from owning firearms.
Da_bang80
A few sectors short of an Empire
Member # 528
posted
quote:Originally posted by Malnurtured Snay: Not to mention that the risk of being shot is much higher if there's a gun in the house.
Well, yes it would seem common sense that if there is no guns in the house there's not a whole lotta chances of gettin shot.
if you teach your children about guns, instead of lettin them find it themselves and shooting thier best friend like it so often happens, then this world will be so much safer. accidents may still happen. but there will be less incompetence, ignorance, and all around stupidity.
-------------------- Grant me the serenity to accept the things I cannot change. The courage to change the things I cannot accept. And the wisdom to hide the bodies of all the people I had to kill today because they pissed me off.
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