In Defense of Bad Faith Second Amendment Arguments

342 thoughts on “In Defense of Bad Faith Second Amendment Arguments”

1. “Amar argues that the term “the people” may have had a more specific meaning. Back in the day, law distinguished so-called “political” rights from “civil” rights. Citizens had both, but non-citizens only had the latter. For instance, only citizens could vote while non-citizens could, say, own property. Thus, “the people” (referred to in the First, Second, and Fourth Amendments) likely meant voting citizens.”
   This is true, but the way you next try to use it doesn’t fit.
   “Why not use “the people” there? Why make the switch? The answer is that the terms were likely understood in different ways.”
   Sure, but again this doesn’t lead to the collective right interpretation you are trying to defend. This leads to the interpretation that the 2nd amendment only counted for “voting people”.
   “If you think the Framers consciously used different phrases for different reasons, the phrase “the people” — combined with the use of military terms like “militia” and “bear arms” — strengthens the collective-right interpretation.”
   Not particularly. If you are arguing the political vs. civil rights interpretations you are still talking about rights held by individuals you are just noting that only citizens count. And notice also that if you are going to take that interpretation you are going to hit the 1st amendment right to assemble…
   Combining it with militia doesn’t help you at all, because the militia was just every able bodied man.
   “And because the Second Amendment can plausibly be read in different ways, maybe it’s better to let the political branches decide this specific question. But regardless, the idea that a collective-right reading is unprincipled or in bad faith is simply wrong.”
   It is just a really bad historical reading which to my knowledge has no basis in actual history. Which is to say that as actually applied beginning with the ratification of the amendment and judicial history for the next 200 years, I’ve seen no reason to believe that it was not considered an individual right.

2. I think McArdle’s immediate leap to assumptions of bad faith tells us a lot more about her than about the Constitution.

3. I blame it all on the commas:
   A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
   I’ve never been able to parse that. No *wonder* people disagree.
   More seriously: I don’t think “2nd Amendment means arms are an individual right” is a bad-faith argument. I just think it’s a poor reading, that the individual-rightists are pulling out what they want to see and not reading what’s *there*.
   In the same sentence, the 2nd Amendment refers to “a well regulated militia” and “the right … shall not be infringed“. How do we get a right which is both un-infringable and well-regulated? I don’t see how a strictly individual right can be both, so it must be a group or collective right.

4. Others have noted that the collective rights theory of the Second Amendment also requires a presumption that — for that text and that text alone — its authors were atrocious writers.
   All they needed to have said was “Congress shall pass no law infringing state militias.”
   Amir’s theory of interpretation, meanwhile, is gobbledygook. How can the Third, Fourth, Fifth, Sixth or Eighth Amendments, for example, be considered protections of states rather than of individuals? Not to mention the Ninth.

5. The colletive nature of the right does not derive from the word “people,” but instead comes from the part about the “well-regulated militia,” the explicit power in Art. I Sec. 8 to regulate the arming of militia, and the structure of state/federal relations.
   The power to regulate and the prohibition on infringment are reconciled by allowing regulation of individuals with respect to weapons, but not the general disarmament of the population.
   Note also that the 2nd Amendment, like the rest of the Bill of rRights, is a limitation on federal, not state power. Without recapitulating the history of incorporationism, let me just point out that we often speak of “First Amendment” rights, or “Fourth Amendment” rights, when what we really mean are rights protected by the 14th Amendment.

6. What Doctor Science says. No other amendment has a p > q structure. Unless the writers had to meet some page minimum, the logical structure suggests that the right turns on the subjunctive predicate. (and if they had to meet the minimum, they could’ve just switched their font to Courier New)

7. “In the same sentence, the 2nd Amendment refers to “a well regulated militia” and “the right … shall not be infringed”. How do we get a right which is both un-infringable and well-regulated?”
   We don’t, Doc; Read the amendment again, it’s the militia that’s well regulated, not the right. Having a well regulated militia in no way implies regulating what personal arms the people comprising it are allowed to own. It could very well involve, (See the early militia acts!) mandating that they DO own certain arms, but how does that imply the opposite goal of gun control, that they not be permitted to (in addition!) own arms the government doesn’t like?
   Sebastian gets at the critical point: In a vacuum, were you so inclined, you could torture the 2nd amendment enough to extract a ‘collective’ right no particular person could exercise. But any examination of the history of the amendment would instantly indicate that you’d gotten it wrong. In fact, the ‘collective right’ interpretation is a creation of 20th century gun controllers attempting to rationalize that they weren’t trying to violate the 2nd amendment. And not doing a very good job of it.
   Nobody has managed to unearth evidence that anybody had even considered a ‘collective’ interpretation of the amendment in the founding era.
   You’ll notice that individual rights advocates keep trying to get people to read founding era documents. Advocates on the other side? They’ve got Bellesiles…
   So, I’d say that while it is possible for a relatively ignorant person to advance the collective interpretation in good faith, it is not possible for anyone who has exerted the slightest effort to become informed on the subject. The evidence is just too overwhelmingly one-sided.

8. Just out of curiosity–why does the history matter today? The Framers don’t live in this society–why should we be so worried about what the words they chose meant then? We don’t live in that world–we live in this one. Worry about what those words mean now, as interpreted through the lens of 21st century definitions of who people are and what rights they have. I mean, I’m a white guy, and I wouldn’t want to live under the 18th century definition of who a person is. It’s safe to say that most women and minorities don’t want to.

9. Brett, it still doesn’t make grammatical sense to me.
   “A well regulated militia” means that the actions of the people comprising the militia are regulated, correct? And regulation by its very nature means that actions are controlled or constrained, which means that the abilities (rights) of the people involved to be perfectly free in their actions are “infringed”.
   Basically, what’s the phrase about the militia doing in there in your reading, if it doesn’t have anything to do with the rights in the second part of the sentence? How can the individuals who make up the militia have uninfringed rights if they are well-regulated?
   I haven’t delved hard into the issue by your standards, because I live in NJ, where gun control is an obvious necessity to all (stray bullets have a way of hitting people). I grew up in CT, so the concept of “freedom” David Hackett Fischer outlines in the New England section of Albion’s Seed (Mrs. Robinson discussed it in Orcinus a couple weeks ago) makes intuitive sense to me. For the Puritans and their cultural descendents (including both John Adams and John Kerry), “freedom” is the ability of a community to order itself, to collectively choose the terms of its restraint.

10. Bad news, people: you can read the Second Amendment either way. That would be why there’s a debate on what it means.
    Personally, I think the best compromise reading is to concede an individual right, but also to concede that the “well-regulated” language means that the exercise of that right is subject to regulation.
    But I wouldn’t dream of arguing that the language of the Amendment *dictates* my reading.
    As for McArdle, she’s consistently either stupid or dishonest. I have deep, deep contempt for the kind of “intelligent” person who glances at the Constitutional text and says, “well, I can read, so here’s what that means.”

11. Basically, what’s the phrase about the militia doing in there in your reading, if it doesn’t have anything to do with the rights in the second part of the sentence?
    oh it’s just an example of one of the many wonderful things people will be able to enjoy, when they’re allowed to own as many guns as they like. they could’ve just as easily written:

    A thrillingly-violent police drama, being necessary to the entertainment of a happy state, the right of the people to keep and bear arms, shall not be infringed.

12. I’m no constitutional scholar, but it seems to me (as I learned many years ago as a law student – especially the not being a consttutional scholar part) that historical context can not be ignored in Constitutional interpretation.
    At the time of the Framers, there was no actual organized federal armed force that could be invoked on short notice. Civil defense was on an ad hoc local basis. In order for that to effectively occur, people could keep and bear arms JUST IN CASE THERE WAS A COLLECTIVE NEED FOR THOSE INDIVIDUALS TO BE CALLED TO ARMS IN THE EVENT A MILITIA WAS NEEDED FOR COLLECTIVE DEFENSE.
    I don’t see how this right, within the original language(no matter how awkwardly worded), extends to the personal right to maintain weapons for any individual purpose. The grant is an individual right for collective purpose.
    Sure, the states can bestow statutory rights on citizens to own weapons for individual purposes WITHOUT CONFLICT with the Constitution, but the Constitution’s language on its face reads only to grant a very limited individual right, circumscribed and conditioned upon the need for defense of the collective citizenry within a historical context characterized by a real possibility that a militia might be needed on the spur of the moment.

13. Is the individual rights side arguing that even prior to the 14th Amendment, the 2nd Amendment was understood to prevent States from restricting gun ownership?

14. ah cleek, I see. So, for instance:
    A portable symbol of potency, being necessary to the security of a unstable masculine identity, the right of the people to keep and bear arms, shall not be infringed.

15. I don’t buy the “persons”/”the people” distinction at all. They thought women could be jailed for peacably assembling, & had no right to be secure in their persons from unreasonable search and seizure? Really?
    I don’t think either the individual or collective right reading is really accurate. The NRA view reduces “A well regulated Militia being necessary to the security of a free State” to meaninglessness; but the militia they were envisioning involved the participation of a large % of voting citizens who would own their own guns–the existence of a state police force is not really a substitute as far as “the people” bearing arms.
    The Second Amendment is a relic. It’s as archaic, in its way, as the third. It is written assuming the existence of a militia that doesn’t exist, & as an actual protection of liberty it’s been rendered completely obsolete by changing weapons technology. The idea that it compares to the First, Fifth, Sixth, or Fourteenth, among others, as far as actual protection of individual liberty from gov’t encroachment, I find comical. Check out gun ownership rates in Western Europe v. pre-war Afghanistan & Iraq and get back to me.
    As a policy matter, I don’t favor banning say, hunting rifles, for the same reason I don’t favor banning golf: the gov’t shouldn’t interfere in people’s recreational activities without a real reason to do so, & I don’t think there’s a strong enough link between hunting rifles & crime rates to justify that. As a political matter, the sorts of gun control that might have an effect on violent crime are politically impossible, & the stopgap measures just seem to piss everyone off without actually accompishing much. As a constitutional matter, though, I do tend to want to err on the side of construing the bill of rights as broad, strong, protections of individual liberty. And it seems inconsistent to leave the Second Amendment out of that even though I think it was actually a mistake to write it in the first place. (I am quite comfortable with certain specific restrictions on say, AK-47s & Kalashnikovs & cop killer bullets based on the phrase “well regulated”).

16. Much of this discussion assumes that the 2nd Amendment has a clear and well defined meaning that was agreed upon by the founders. I suspect that an interview with various members of the constitutional convention at the time of ratification would have produced wildly varying accounts of what they had just ratified. Politics is always about compromise, and one of the ways compromise is achieved is by careful wording that defers conflict or moves it into another arena. The clumsy wording of the 2nd amendment seems to me exactly the kind of sausage factory product that comes out of a process of political maneuvering to generate something acceptable by the largest number of people.
    On another note – Katherine: you are assuming gun rights have to do with hunting, crime, and that sort of thing. I couldn’t disagree more. Gun rights are necessary to ensure that the government cannot pull the kind of thing that’s being done in Burma right now. If the people can shoot back it’s much harder to oppress them.

17. Has the 2d Amendment been expressly incorporated?

18. I’m not certain if I’ve seen Sebastian arguing for the “strict constructionist” point on Constitutional interpretation before, but I know a number of the people who publicly argue for the widest individual interpretation of the second amendment have. So doesn’t the idea of looking at the history of how the second amendment has been applied and enforced conflict with the idea of their claim to “just read the text, without interpretation”?

19. Having a well regulated militia in no way implies regulating what personal arms the people comprising it are allowed to own.
    Brett Bellmore, you seem to be something of a Second Amendment absolutist. I’ve always wanted to ask one of you guys this: If the FBI finds a terrorist with a nuke in a suitcase, does the Second Amendment, in your view require them to let him go? If not, why?

20. “If the people can shoot back it’s much harder to oppress them.”
    No, not really. Not long term. See: Iraq. See: Afghanistan. I’m not talking about the current wars–I’m talking about the incredibly high gun ownership rates under Hussein & the Taliban, which didn’t seem to interfere much with gov’t oppression. In the U.S. of course the gov’t has even more technology.

21. If the people can shoot back it’s much harder to oppress them
    Do you have evidence for this? For instance, do you think people in high gun-ownership states are less oppressed than people in low gun-ownership states?
    I think the state-level evidence might reasonably support the idea that it’s harder for the government to oppress gun owners, but much easier for them to oppress each other — e.g. by homicide and other forms of street-level violence.

22. “For instance, the establishment clause makes no sense as anything other than a protection of state-recognized churches…”
    The guarantees of freedom of speech, of the press, assembly and petition are all in the same sentence with the establishment clause – this sentence begins with “Congress shall make no laws respecting…”.
    The interpretation that the first amendment only prohibits the *federal government* from doing certain things is certainly a possible one, but it must apply across the board to all these freedoms, not just to the establishment clause. That is, according to this interpretation, states would be free to establish a church, *and also* to abridge the freedom of speech, press, etc. Or again, that these freedoms are not guaranteed by the constitution against abridgment by state or local governments.
    This is absolutely not the interpretation which is currently accepted, whatever the founding fathers had in mind.

23. skeptonomist–I think the current view is, those rights apply against the states, but they didn’t until the 14th amendment passed.

24. I’ll also add that it’s much easier for governments to oppress fearful people — for instance, the kind of people who buy guns to protect themselves from the people around them.

25. Bouncing off of James Carville, who once wished he was the bond market, I wish I was Blackwater, an unregulated international militia.
    I would hold suspicious meetings and we’d get together and train like schoolboys in the woods and I’d issue news releases with sinister sounding language about how things are going to be one day, and then I’d wait until the second amendment purists, like the NRA and their shills governing the country, became a little nervous and began parsing the language of the amendment in a less literal fashion and then I’d kick it up another notch, just to see where constitutional rhetoric ends and traumatized sphincters begin.
    I’d spell “government” as “gummint”.
    I’d use another country as a proving ground, where I could spray gunfire at civilians at will to test the elasticity of the word “regulated”.
    Then, like the 15% flat tax dictated to my proving ground, I’d point to my own country, and ask “Why can’t we have these highly successful policies in our homeland?”
    Does Ted Nugent play golf? If I were Blackwater I would use my expansive powers to ban golf, just to see how long it took Nugent to brandish a three-iron on stage and threaten me with playing through.

26. It is a mistake to think that the “Constitution” is a single document which must be interpreted in light of the exact intentions of the writers. In fact it has been constantly reinterpreted, by Congress and public opinion as well as the courts. A few parts are simply obsolete, such as the phrase “A well regulated militia, being necessary to the security of a free state…”, which is not true anymore, whatever “free state” means.
    The British often talk about a constitution (or used to), but they have no single written document.

27. ust to see how long it took Nugent to brandish a three-iron on stage and threaten me with playing through
    Oh, I think his masculinity would pretty much require using a wood.

28. It may be true that the 14th amendment helped to form the current view of the 1st, but it says nothing specifically in clarification or amendment of the 1st – there is no reference to establishment or freedom of religion or to the other freedoms. The first paragraph of the 14th is about possible conflicts of state with federal laws.
    People who take the restrictive interpretation of the 1st amendment are almost always arguing against federal government enforcement of separation of church and state and rarely acknowledge the implications for the other freedoms.

29. katherine – re “people”/”person”, one source of confusion is that the 4th wasn’t really designed as a criminal protection. according to bill stuntz anyway (“substantive origins of the 4th” – 1995 yale lj), the 4th was rooted in privacy, particularly privacy from heresy and libel and political oppression.
    if he’s right, it makes more sense that this type of right would apply to citizens.
    all that said, i don’t necessarily care what the original understandings were. i prefer to interpret constitutional text where possible with an eye to pragmatism and policy. but that’s the argument

30. Ah, Bill “against privacy & transparency” Stuntz. I’m not a fan.
    When you say citizens, who precisely do you mean? The voting polity was not synonymous with citizens, as you know. Are you seriously suggesting to me that based on the fact that women can’t vote, it’d be okay for the police to search their persons without a warrant?
    I still find it just facially implausible. I think the difference is that when they’re talking about affirmatively “having the right to X” about a right they say “people”, & when they are saying “the government shall not do this to” they say “person.” “The right of persons peacably to assemble” sounds a little awkward, as you assemble together. “The people shall not be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury” sounds extremely awkward, as you indict one person & not “the people.”

31. I wish someone would answer my 9:30 question, I’m honestly confused about this.

32. Steve: I assume they are not arguing that, but I can’t be certain.

33. There’s really no legitimate question regarding incorporation; If you read the Congressional debates concerning the 14th amendment, they were unambiguous about it: The amendment was supposed to incorporate the Bill of Rights, amendments 1-8, against the states, via the privileges and immunities clause. The only reason it didn’t happen that way was that the Supreme court of the time set out to deliberately render the amendment moot by ‘interpreting’ it so that it would have no practical effect. This is not contraversial history, it was at one time the stuff of high school civics and history classes.
    Rea, “arms” is a term with a particular meaning in this context: It’s the weaponry typically carried by a soldier. Until Congress decides that every grunt is going to be issued a suitcase nuke on completing basic training, suitcase nukes won’t be “arms” in this context. Until Congress decides to issue them super-soakers instead of assault rifles, assault rifles will be “arms”. Congress decides what “arms” are by deciding what it’s soldiers will be armed with.
    Read what that generation had to say about the amendment: http://www.gmu.edu/departments/economics/wew/quotes/arms.html
    The purpose of the amendment, so far as I can see from reading contemporary writings, was to assure that a militia could be raised in an emergency, even if, (As did eventually happen.) the government had decided it didn’t WANT to maintain a militia system. It does this by guaranteeing the right of citizens to own and practice with militiary weapons, thus assuring a body of people suitably armed and familiar with the use of those arms.
    To that end, the people are guaranteed the right to arm themselves in the same manner as soldiers.
    Who don’t carry nukes in there backpacks…

34. “But regardless, the idea that a collective-right reading is unprincipled or in bad faith is simply wrong.”
    The idea of a collective-right reading is the thing that is wrong. Our right to bear arms is founded on the concept of the Citizenry being able to defend itself against a corrupt government. Americans are only able to choose their own officers and government if they are empowered as individuals, not as a collective. Those at the top know that there are 270 million firearms in the hands of American civilians, and there is nothing that can be done about it at this point in world history. They’ve tried to stop ammunition sales with OSHA regulations, and failed. Ammunition taxes are next.
    If an American father wants to buy a hundred 9mm rounds in Maryland to protect his family, the bullets will cost him ~$15. The tax $500. John Thullen is wrong too, the meetings are not held in the woods, they are held in a small clearing.
    “The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”
    -From Federalist 46, attributed to James Madison
    http://www.yale.edu/lawweb/avalon/federal/fed46.htm

35. I assume by “a soldier” you mean “an infantryman”? Or is artillery in too? Grenades?
    I basically agree with you about the original purpose. I also basically agree that the fact that the purpose has become somewhat obsolete doesn’t necessarily limit the text. To say that the original, obsolete purpose requires that we have the right to bear machine guns–a technology that didn’t exist then & which police, who are arguably as good an analog for militia as the U.S. army, don’t generally carry–seems like a stretch. I mean, WHICH soldier’s weapons? It’s not like you need to go all the way to nukes to get a crazy result. Cluster bomb artillery?

36. “limit the text” should be “erase the text”.

37. To that end…
    since the military is perfectly capable of teaching people to fire an M-16, just as its capable of teaching people how to launch SAMs and pilot submarines, we no longer need a citizenry armed for that purpose.
    any circumstance dire enough to require an immediate draft of all citizens, which is also urgent enough to preclude any kind of weapons training, is likely going to be met with a massive wave of nuclear-tipped ICBMs in the direction of the offending country. within an hour of landing on US soil, the invaders will have no home country to report back to.

38. It does this by guaranteeing the right of citizens to own and practice with militiary weapons, thus assuring a body of people suitably armed and familiar with the use of those arms.
    Guaranteeing it against WHOM?
    In the year 1820, if the State of Maryland had decided to restrict private gun ownership, do you believe the federal government would have interceded to stop them?
    Or do you believe the individual right to be free of state restrictions on gun ownership only came about as a result of the 14th Amendment?

39. “The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms.”
    -James Madison. January 29th, 1788
    2.7 million in uniform.
    300 million population
    Our Founding Fathers were brilliant.

40. yeah, i’m not a big stuntz fan either, but he didn’t used to be such a wanker.
    as for the women/citizens thing, you’re right that it doesn’t make sense. but, if you think of the 4th as a political privacy provision, then (in those times) it probably wouldn’t have occurred to them that they needed to protect non-voting citizens.
    of course, i understand that history has shown that women played a far more prominent role in the revolution, etc. than people realize. so i guess i’m not sure — i think it’s possible they just weren’t thinking in these terms.
    but yes, post-2001 stuntz sucks. badly

41. Cleek, disagreeing with the wisdom of the 2nd amendment’s policy implications is all well and good, but it doesn’t after all repeal the amendment.
    In fact, I would go so far as to say there’s no point in having a bill of rights, if the mere fact that the government thinks an amendment is obsolete/a bad idea relieves the government of the obligation to comply with it. The government always claims that everything it wants to do is a good idea, after all.
    IOW, you don’t like the 2nd amendment? Repeal it.

42. “Or do you believe the individual right to be free of state restrictions on gun ownership only came about as a result of the 14th Amendment?”
    Bingo! In fact, as you can easily verify by checking out the Congressional Record of the 14th amendment debates, a key purpose of the 14th amendment was to stop southern states from disarming freed slaves.

43. Regarding the 14th, I have a hard time seeing how it has much bearing on the interpretation of the 2nd – the 1st paragraph is mainly to make sure that blacks have the same rights etc. as others, whatever those rights are (although this was later subverted by legislation and Supreme Court decisions such as Plessy v. Ferguson).
    On the other hand, the Civil War itself had a great deal of bearing on many constitutional questions – states no longer feel they have the right to secede from the union or to use their militias to invade other states or other contries, not because of anything in the written constitution but because they know that the Federal Government will PUT THEM DOWN BY FORCE if they try. State militias as they were before and just after the war of independence just don’t exist anymore – the National Guards are under the authority of the President, and do not require in any way that their members provide their own weapons.

44. First, remember that the Bill of Rights applied only to federal action until after the Civil War.
    This is a widely accepted proposition, but to be strictly accurate, Federal courts didn’t apply the Bill of Rights to the several states until after the passage of the Civil War amendments and state courts only did so as a matter of choice. The linked version of the article looks to be a newer version than the one I read, but the abstract is the same.

45. I love it when you educate me.

46. italexio!

47. Assuming suitcase nukes can exist — I’ve seen conflicting reports on this point — carrying one seems like pretty conclusive evidence of conspiracy to commit murder/terrorism. Certainly the accused might claim they wanted it for recreational hunting if we lacked a specific law forbidding it, but no jury in the world would believe them.

48. In fact, I would go so far as to say there’s no point in having a bill of rights, if the mere fact that the government thinks an amendment is obsolete/a bad idea relieves the government of the obligation to comply with it.
    governments ignore anachronistic/obsolete laws all the time. ex. did you know blasphemy is illegal in MA ?
    the fact that some enjoy what people have come to assume that this law allows doesn’t mean the law isn’t obsolete.
    IOW, you don’t like the 2nd amendment? Repeal it.
    sadly, i don’t actually have the power to do that. and, honestly, i’m not sure i want to ban guns. but, nevertheless, i don’t think the 2nd Amendment gives them to us, and if it were in my power to repeal A2, i’d replace it with something a little less stupid.

49. I’d like to offer a more general comment: the Second Amendment is clearly the single most out-of-date element of our Constitution (well, except for the 3/5 rule). It cries out for a new Constitutional amendment. But there’s no chance of such an amendment happening anytime in the foreseeable future. The same thing goes for abortion — the legal foundations for which are just too damn tenuous. We as a polity should be discussing possible amendments, but instead we spend all our time arguing ridiculously fine points of the old laws. I think this is an indication of serious political arteriosclerosis — we spend our energy looking backward to the past rather than forward to the future. The attitude of “let’s roll up our sleeves and work out a compromise solution” seems to have left our souls. And that spells the doom of our Republic.

50. “governments ignore anachronistic/obsolete laws all the time.”
    There’s a huge difference of kind between a state refraining from enforcing an obsolete law, and a state refusing to comply with an ‘obsolete’ constitutional right. In the one case, it’s just prosecutorial discretion, in the other an outright violation of the highest law of the land.

51. Erasmussimo,
    “the Second Amendment is clearly the single most out-of-date element of our Constitution (well, except for the 3/5 rule)”
    No, the Third Amendment is. When was the last time there was a dispute about quartering soldies in private residences?
    “I think this is an indication of serious political arteriosclerosis — we spend our energy looking backward to the past rather than forward to the future. The attitude of “let’s roll up our sleeves and work out a compromise solution” seems to have left our souls.”
    I’ll agree there is a current serious hardening of the political arteries. But that is a function of where we are in the Generational Cycle (see here for the writers’ explanation of Generational Theory). With the country either just entering or in the very early stages of a Crisis, a lot of long-standing problems will be decided by which party successfully leads us through the Crisis, just as the economic issues raised by the Progressives were resolved by FDR, and the slavery/states rights issues of the 1830’s through 1850’s were resolved by Lincoln.

52. whoops — “soldies” should be “soldiers”.

53. In the one case, it’s just prosecutorial discretion, in the other an outright violation of the highest law of the land.
    if we agree that the ‘citizen soldier’ rationale as a basis of A2 is anachronistic, it’s just “prosecutorial discretion” (a.k.a. an interpretation of the law that agrees with gun-lovers, and not with the original spirit of the law) that’s keeping A2 alive.
    yes, in my MA example, people are choosing to ignore an anachronistic law, and that is different from choosing to interpret an anachronistic law in a way that favors modern society. i’m just, clumsily, pointing out that our interpretation of laws does change over time. the fact that you like the current misinterpretation of the anachronistic A2 doesn’t mean it’s not a misinterpretation.

54. Oops! Thanks, Dantheman, for correcting my on the Third Amendment. Of course, it’s one of the few areas of the Constitution that the Bush Administration hasn’t attacked yet — but I suppose they’re working on it. 😉
    Interesting hypothesis about generational crisis. I hope we don’t have to go through a crisis, but maybe we need one to shake us up and fix some of the horrible problems we have with our government.

55. Bingo! In fact, as you can easily verify by checking out the Congressional Record of the 14th amendment debates, a key purpose of the 14th amendment was to stop southern states from disarming freed slaves.
    But then I don’t get why the individual rights supporters are always so adamant that the debates from the Founding support their point of view, if individuals didn’t gain rights they could enforce against the States until Reconstruction.
    It seems to me, Brett, that you advance a plausible theory in support of the individual rights case, but I’m not sure that your theory is “the” theory. After all, not everyone agrees with the incorporation doctrine, and most of the opponents of that doctrine seem to be on the political right.

56. “if we agree that the ‘citizen soldier’ rationale as a basis of A2 is anachronistic, it’s just “prosecutorial discretion” (a.k.a. an interpretation of the law that agrees with gun-lovers, and not with the original spirit of the law) that’s keeping A2 alive.”
    No it’s not. There’s not much case law about this–can anyone point me to a Supreme Court case holding that a gun control law is unconstitutional? I’m not sure there is one. What’s keeping the amendment alive is the very strong political opposition to gun control. The fact that the NRA can argue “it’s in the constitution” probably contributes to that opposition, but that’s not quite the same thing.
    Even if that weren’t true, it would be a bad analogy. For one thing, it would be unconstitutional to prosecute people for violating MA’s blasphemy law; it’s not just “obsolete”. For another, choosing not to imprison people for violating a criminal law just isn’t comparable to imprisoning people in violation of a constitutional provision, even an obsolete one. I agree with you about the Second Amendment being obsolete, but it doesn’t excuse you from complying with the text. (I don’t agree with Brett at all about what compliance with the text requires). After all, plenty of people think the Geneva conventions & habeas corpus are quaint and obsolete.

57. I find that the most interesting part of the 2nd A. is the “keep and bear arms” bit.
    It’s my understanding that fowling pieces, duelling weapons and other bits lying around the house that were sharp or went bang weren’t, in 1789, “arms”. “Arms” were military weapons only, and “bearing arms” meant acting in a military capacity.
    So, it seems to me that the Second Amendment was saying that a State Government could not legally deny the right of any person to own his own musket and join the local militia.
    What does that mean for today? First, the Second Amendment is silent on the power of the states and the federal government to regulate things that aren’t “arms”, like pistols, shotguns and swords.
    Second, much as the courts have upheld time,place,and manner restrictions — but not content restrictions — on the exercise of free speech rights, I would uphold competency and training requirements — but not absolute bans — on those who want to own military weapons and participate in well-regulated militias. (Note: most Swiss households own an assault weapon, iirc, pursuant to that country’s militia laws.)
    So, I would hold that five-day waiting periods for handguns and other regulations of weapons that aren’t “arms” are perfectly constitutional. But the assault weapons ban is not. Each person has an individual right to own a M-16, but I would uphold laws that condition the exercise of that right in participation in a competent militia.

58. I have no intention of immersing myself in the disaster that is the incorporation debate. However, analysis of any element of the Bill of Rights should always keep in mind that the Bill of Rights was a peace offering to the anti-Federalists like Jefferson and Paine. Indeed, the lack of a Bill of Rights was a central argument against the Constitution, since it was believed necessary to ensure the federal government did not overstep its bounds vis a vis state governments or individuals.
    Viewed in this light, each element of the Bill of Rights is remarkably consistent in aiming towards goal of preventing federal government overreaching. To argue that the word “militia” in the 2nd Amendment is intended to mean an army of citizen-soldiers who are prepared to defend the federal government would therefore make the 2nd Amendment totally at odds with the rest of the Bill of Rights. The 2nd Amendment makes more sense from the anti-Federalist perspective if it is intended to prevent the federal government from making revolt against the federal government impossible. Remember, the “militia” of the Revolution weren’t defending their government- they were resisting it.

59. Mark writes:
    “Viewed in this light, each element of the Bill of Rights is remarkably consistent in aiming towards goal of preventing federal government overreaching. To argue that the word ‘militia’ in the 2nd Amendment is intended to mean an army of citizen-soldiers who are prepared to defend the federal government would therefore make the 2nd Amendment totally at odds with the rest of the Bill of Rights.”
    Fair point, but that still doesn’t move it into the “individual” rights category. It could still be a “collective” right vis-a-vis the regulation of state militias holding back an overbearing federal government.

60. Remember, the “militia” of the Revolution weren’t defending their government- they were resisting it.
    That is certainly not what was going on in Massachusetts. They were resisting the non-local government, they were defending their local government. The government they resisted did not seem to them to be “theirs”, the one they were defending *was*.

61. To me, the bad-faith argument is the one about an armed citizenry keeping government tyranny at bay. The militia types seem to argue that people need guns mainly to defend their right to own guns.
    At least, I am not aware of any instances when a citizen militia rose up to prevent government oppression of, say, Americans of Japanese descent. Had _those_ citizens taken up arms to resist internment, whose side would “the militia” have been on?
    — TP

62. What’s keeping the amendment alive is the very strong political opposition to gun control. The fact that the NRA can argue “it’s in the constitution” probably contributes to that opposition, but that’s not quite the same thing.
    i completely agree.
    just to clarify, though…
    i have to admit i’m abusing legal terms here, being a programmer and not a lawyer; but when i wrote “prosecutorial discretion” way back there, i was trying to snarkily include basically everyone in the US in the category of “prosecutor” – that is, the vast majority of American have pretty much agreed that the Constitution gives us all the right to own guns, full stop; and most of the few who’ve read it and have actually thought about what the 2nd amendment says probably don’t want to try fighting it because the common interpretation is so deeply ingrained (and politicized).
    who is going to argue that Joe Blow can’t have all the guns he wants ? nobody. common wisdom says you can’t touch his guns. nobody will push the issue. we’ve all agreed that it’s a losing battle, right or wrong.
    like i said, abusing the terms.

63. “To me, the bad-faith argument is the one about an armed citizenry keeping government tyranny at bay.”
    It’s not a bad faith argument from a legal interpretation perspective, since government tyranny clearly weighed heavily on the minds of the Framers of the Constitution.
    But as a contemporary political argument, you’re right.

64. “who is going to argue that Joe Blow can’t have all the guns he wants ? nobody. common wisdom says you can’t touch his guns. nobody will push the issue.”
    Maybe we should ask how the NRA how it feels about Joe al-Blowmassa having all the guns he wants.

65. @cleek: I’m staying out of this discussion, coming from a culture that thinks regular changes to the constiturion are a good thing, but I can’t resist pointing out the whole list of weird laws in Massachusetts.

66. If you think the Framers consciously used different phrases for different reasons, the phrase “the people” — combined with the use of military terms like “militia” and “bear arms” — strengthens the collective-right interpretation.
    But, as Sebastian said, it doesn’t strengthen it much given that they apparently use “the people” elsewhere to mean individual voting citizens. Citizens normally were the militia pool, too, so the reference to the militia doesn’t forward a collective construction of “people.”
    Under this reading, Congress couldn’t ban gun ownership on an individual level. But, a state could do what it wanted to.
    Alas, that sounds very reasonable, and in tune with the federalist slant of the Bill of Rights. I happen to be convinced that it is a lousy result for national policy, as gun-nut states will sell the dern things like hotcakes and flood more urban states, but I can’t help that. Maybe after enough people die, we’ll be able to outvote the selfish, do-nothing dreamers who think their theoretical power to rise in rebellion outweighs the lives of citydwellers.
    As to the 14th Amendment, whatever the Reconstruction Congress may have intended, the Supreme Court has arrogated the right to decide whether any particular part of the BoR is implicitly incorporated into the 14th Amendment, and it’s really too late in the day to argue the point. The S.Ct has not ruled yet on the Second Amendment.
    IIRC, the test for incorporation is whether the right is “essential to a concept of ordered liberty,” which means almost nothing. But I suspect that after over a century of gun regulation in various parts of the country (including such nadirs of government oppression and collectivism as Tombstone, Arizona) it would be difficult to argue that the untrammelled right to bear arms is manifestly essential to liberty. If I were arguing the case, I might also point to the Velvet Revolution as proof that a tyrannical central government need not be brought down by force of arms, and I would challenge the other side to show a case in which a purely internal rebellion by force had in fact worked.

67. “Fair point, but that still doesn’t move it into the “individual” rights category. It could still be a “collective” right vis-a-vis the regulation of state militias holding back an overbearing federal government.”
    Except that this view is total historical revisionism. The ‘collective right” interpretation was invented in the mid-20th century by gun controlers. Nobody has been able to uncover any evidence that ANYBODY was advocating it as a way of understanding the 2nd amendment before then. Whereas you can produce reams of commentary from the founding era and around the time of the 14th’s adoption showing it was understood as an individual right. You might have gotten some argument about which individuals were entitled to claim it, against which levels of government, but that was it.
    I realize this doesn’t mean anything to non-originalists, who are comfortable with deliberately ‘interpreting’ constituitonal provisions so as to defeat what they were intended to accomplish. But it’s still the case: The only people who are willing to accept the ‘collective right’ interpretation are people with strong motives for rendering the 2nd amendment moot.
    Because that’s what it was invented for, it was never an effort to objectively figure out what the amendment means.

68. the bad-faith argument is the one about an armed citizenry keeping government tyranny at bay
    How does an armed citizenry keep government wiretapping of private conversations at bay? Or no-fly lists? Or other here-and-now examples of actual government tyranny?
    What do guns actually give modern American gun-owners the ability to *do*, vis-a-vis the government (state or federal)? This is a real question.
    If there’s no real answer, then I fall back onto my analysis: this is not a strictly political issue, but a psycho-sexual one. The absolute virulence with which men who would never fire a weapon against an authority figure react to the idea of having their guns restricted makes no sense from a practical angle. Somewhere, Sigmund Freud is laughing and lighting a *really* *big* cigar.

69. Sheesh, I don’t think there’s anything stupider than gun controllers resorting to Freud. Who actually declared fear of guns to be the psycho-sexual problem… If you really care what a quack had to say on any subject in the first place.

70. “defeating what they were intended to accomplish” loses force when the apparent purpose has been so overtaken by events as to make it *impossible* to accomplish. The militia model that the Second Amendment envisions does not exist anymore; it’s been replaced by a military structure–large standing army with the capacity to kill us all many times over–that makes the right it purports to protect completely useless in the face of an oppressive government. Unless you do think it requires, if not nukes, than at least private ownership of artillery, grenades, rocket launchers, anti aircraft guns, tanks, etc. There’s nothing in the text that compels that interpretation.
    I’m all for a purposive reading of the text, but when the purpose becomes impossible to accomplish, it loses force. So you’re left with this relic which we have to try to interpret fairly because it’s useless but it’s in the middle of a bunch of very useful positions. And I agree with Anderson about where you go with the text: individual right, subject to regulation, including regulation about what type of arms. The “does a soldier get this weapon” test relies on: (1) defining the “purpose” of the Amendment at a level of generality which is chosen to reach a particular result; (2) defining “soldier” in order to reach a particular result–Brett apparently wants machine guns legal but nothing more, so he arbitarily chooses an infantryman as the soldier instead of a state police officer, a sniper, an artilleryman, a bomber pilot, etc. etc.
    Also, I do think that there’s a pretty damn good argument that the Second Amendment does not pass the “essential to a concept of ordered liberty,” test.

71. Kenneth Ashford:
    Yes, I’m aware that my post by itself doesn’t make it an individual right. But most of the more salient points that it is an individual right had already been made, and I didn’t feel like rehashing them.
    As for the idea that keeping government tyranny at bay in the modern context is a bad faith argument for the right to keep and bear arms, I would strongly disagree. If the 20th century taught us anything, it should have been that tyranny can happen in just about any society, given the right circumstances. And we should never forget that the tyranny of the majority can be – and frequently is- just as bad as any other kind of tyranny. I’d even say that tyranny of the majority is a precursor to the development of totalitarianism and authoritarianism in modern societies (e.g., Nazi Germany, Rwanda, Zimbabwe, Iran, Venezuela, etc.).

72. You would strongly disagree based on *what*? Are you arguing that the Rwanda genocide would have gone off better if the larger ethnic group had been armed with guns instead of machetes? Yes, it’s possible that the democratic governments without a right of private gun ownership would become tyrannical; it’s possible for governments to massacre nonviolent protestors–but you’re simply not addressing the argument about how private gun ownership actually prevents tyranny.

73. (I mean, simply not explaining how private gun ownership prevents tyranny.)

74. If the 20th century taught us anything, it should have been that tyranny can happen in just about any society, given the right circumstances.
    True, but those weren’t exactly unarmed tyrannies either. i.e. I’ve heard the argument before that Hitler was for gun control. He was. Just not for the SA.

75. Brett:
    I would love to think Freud was wrong, believe me. That’s why I think the bastard is laughing at me.
    To me, the importance of firearms to American images of masculinity seems overwhelmingly obvious; does it truly not seem obvious to you?
    My point is:
    1. Guns are not currently very practical tools for resisting tyranny, nor are they used that way.
    2. Nonetheless, gun-owners are *extremely* reluctant to contenance any control or restriction on them. They are clearly more important symbolically than they are practically.
    3. Guns are a ludicrously obvious penis symbol.
    4. The Million Mom March was about gun control.
    5. I have embraced my inner castrating bitch.
    If it walks like a phallic symbol, quacks like a phallic symbol, and wags self-importantly like a phallic symbol, *it’s not a duck*.

76. Hypothetical, all you Second Amendment literalists out there:
    Say that the Federal Government grants a block grant to states to create a militia, which shall be called the “National Guard,” and which shall be controlled in its ordinary operations by state governors but subject to overrriding federal control.
    The federal government then requires the states, as a condition of receiving funding for its National Guard units, to disarm the remainder of its citizenry, as the plenitude of arms in individual hands is contrary to the public interest in regulating a militia.
    Subsequently, the federal government passes leglislation restricting Guard membership to Party members.
    How does the Second Amendment help prevent government oppression, again?

77. “3. Guns are a ludicrously obvious penis symbol.”
    PSYCHOTHERAPY
    (Melanie Safka)
    Oh, mine eyes have seen the glory of the theories of Freud.
    He has taught me all the evils that my ego must avoid:
    Repression of the impulses resulting paranoid
    As the id goes marching on.
    Glory, glory, psychotherapy,
    Glory, glory, sexuality,
    Glory, glory, now we can be free
    As the id goes marching on.
    There was a man who thought his friends to him were all superior,
    And this complex he imagined made life drearier and drearier,
    Till his analyst assured him that he really was inferior,
    As the id goes marching on.
    Glory, glory, psychotherapy,
    Glory, glory, sexuality,
    Glory, glory, now we can be free
    As the id goes marching on.
    Do you drown your superego in a flood of alcohol (or something else)
    And go running after women till you’re just about to fall?
    You may think you’re having fun but you’re not having fun at all,
    As the id goes marching on.
    Glory, glory, – (You’re not singing, you’re just clapping!)
    Glory, glory, psychotherapy,
    Glory, glory, sexuality,
    Glory, glory, now we can be free
    As the id goes marching on.
    Oh, sad is the masochism, the vagaries of sex,
    Have turned half the population into total nervous wrecks.
    But your analyst will cure you, long as you can pay the cheques,
    As the id goes marching on.
    Glory, glory, psychotherapy,
    Glory, glory, sexuality,
    Glory, glory, now we can be free
    As the id goes marching on.
    Is your body plagued by aches and pains that you can’t understand:
    Compound fractures, ingrown toenails, floating kidneys, trembling hands?
    There’s a secret to your trouble: you’re in love with your old man,
    As the id goes marching on. (All together now!)
    Glory, glory, psychotherapy,
    Glory, glory, sexuality,
    Glory, glory, now we can be free
    As the id goes marching on.
    Freud’s mystic world of meaning needn’t have us mystified.
    It’s really very simple what the psyche tries to hide:
    A thing is a phallic symbol if it’s longer than it’s wide,
    As the id goes marching on.
    Glory, glory, psychotherapy,
    Glory, glory, sexuality,
    Glory, glory, now we can be free
    As the id goes marching on.

78. Interesting discussion on the constitutional arguments, though one I am ill-equippted to participate in. I took a semester of con law as an undergrad, and have long since forgotten everything I learned. I tend to agree with Brett’s arguments that the amendment was intended to protect an individual right, but I doubt I could argue it any more effectively than him.
    I would like to ask Katherine, Doctor Science, and other proponents of gun control how they envision a nationwide ban on, say, handgun ownership. It didn’t work for booze, and it doesn’t work for drugs, so what would they do to make a handgun ban effective in the face of large-scale defiance of the law? Would they increase the size of the ATF? How would warrants be served against suspected handgun owners? SWAT teams kicking down doors in the dead of night, like our heroic drug cops do? In other words, do they really think criminalizing a very large percentage of the American population would be any less a disaster than it was during Prohibition or is today wrt the War on Drugs?

79. 3GB – I don’t think they’re advocating a nationwide ban on handgun ownership (though maybe they are), just that regulation should be allowed (e.g., no fully automatic weapons, caliber restrictions, etc.), and that said regulation is consistent with the 2nd A.
    My own view is that people would think the general availability of guns less of a problem if we didn’t live in an incredibly violent culture.

80. I don’t know if a handgun ban is good policy or not. I just don’t think it really belongs in the bill of rights. It’s not the same sort of fundamental liberty; it’s not a real check against government abuse; it doesn’t belong in there. An amendment to repeal it is politically impossible, & the attempt would be politically disastrous, but if we were starting over I would leave out that provision. There’s all kinds of activities where criminalization might do more harm than good; they don’t need to be explicitly protected in the bill of rights.

81. Brett: very cute, but it doesn’t actually answer my question. Have a battery-operated salami.
    ThirdGorchBro:
    I don’t think a nationalwide handgun ban would work, for exactly the reasons you cite. But it’s massively clear to me that “there are too many guns, and the guns are too big” (spot the quote! win a prize! — it doesn’t have to be a salami).
    So, how about licensing — with training & testing similar to auto? How about not selling armor-piercing rounds? How about buy-back systems?

82. Unless I missed it in my scrolling, I don’t think anyone has given my early question an answer of any sort–why does it matter what the Framers thought, or even what the Congress intended when they produced the 14th Amendment? We don’t live in their world anymore–thank the heavens–and they didn’t live in this one. Why on earth are we still applying their definitions to our problems? We don’t seem to do it in other circumstances–speech doesn’t mean the same thing now that it did in 1787. We’ve got a much wider variety of religions now than we did then. The press has taken on a life that no one could have imagined at the time, not to mention the way we’ve modified the way we look at individual rights in the intervening years. So why on earth should we give a damn about what Madison, et al, felt about arms in the 18th century? Justify it, please.

83. Trilobite:
    Your hypothetical is flawed, as it rests on the presumption that the federal government can define by statute the word “militia”. You obviously did not read the multitude of posts explaining why the term “militia” does not refer to the National Guard. In essence, your hypothetical rests on the assumption that the 2nd Amendment is a collective right, when the whole point of our argument is that it is an individual right.
    Katherine:
    My mention of 20th century tyranny was in response to the claim that, in the modern context, prevention of tyranny is a bad faith argument for the 2nd Amendment, and the subsequent suggestion that true tyranny in the US is now impossible. So, I was simply trying to demonstrate that tyranny is possible, even in a fairly democratic society.
    As for whether the 2nd Amendment would allow the “militia” to successfully defend against tyranny, well, there are a lot of variables there depending on the nature of our hypothetical revolt. The one thing you can say, though, is that it increases the relative cost for our hypothetical tyrant to hold on to power.
    I will acknowledge that my original post should not have used the word “prevent”, which is a bit too absolutist- it is difficult to imagine a situation where ANY right would, by itself, prevent tyranny. The better phrasing would have been “act as a deterrent” or “additional necessary safeguard.”

84. I wonder if the better analogy isn’t to what weapons any particular soldier can wield today (from the aforementioned M-16 to a B2 bomber), but to what private citizens not in military service were generally allowed to own circa 1791? Assuming that didn’t include things like that cannons of the time (which it may have, I guess), then we can limit the scope of the 2nd. A. to handheld arms, and then bicker over whether “well-regulated” allows bans on full-auto sub-machine guns or not.

85. “My own view is that people would think the general availability of guns less of a problem if we didn’t live in an incredibly violent culture.”
    Except, “we” don’t. The level of violent crime varies by several orders of magnitude from place to place in this country. Because we don’t have just one culture, we have a lot of different cultures.
    I, for example, live in a neighborhood where you can leave your home unlocked without any concern. There hasn’t been a violent crime on my street in, oh, going on twenty years. And we’re all armed to the teeth.
    That’s one of the problems here; Gun controllers are using violence taking place in some of our more dysfunctional cultures as an excuse to disarm people living in cultures which work just fine. And that really pisses off the people whose rights are being attacked because somebody else abuses them.

86. Mark, you may be thinking of some other thread, as there are no posts on this on that discuss the NG. But go ahead, post one. What is a militia, if not the National Guard? And if the National Guard is a militia, why not regulate it? I think your point comes down to, we can’t regulate the militia pool. So, okay, let’s draft EVERYONE into the National Guard, release all but .1% from active duty, and regulate them by forbidding them to bear arms. It comes out to the same thing. If I’m registered for the draft, am I not in effect already drafted, just awaiting a call up to active duty? If I’m in the militia pool, is that really different from being in the militia?
    I do see your distinction, it’s just that I also see the rest of the text of the Amendment.
    By the way, I see absolutely nothing in there forbidding me to restrict the possession and bearing of bullets. Or gunpowder, or primer. Do you?
    I’m also not at all sure why everyone seems to think that a right to keep and bear arms has to be an absolute right. The right to free speech is also not to be restricted — EXCEPT FOR libel, slander, obscenity, threats, creating clear and present danger, noise pollution, topless dancing, “fighting words,” betrayal of government secrets, speech over dedicated spectrum owned by someone else (even if unused), criminal contracts, solicitation, false advertising, false labeling, infringement of copyright or trademark, political ads in the wrong time and place, harassment, and probably a few I can’t think of right now.
    In other words, it’s absolute except in all the ways that it would make it very inconvenient to conduct a society. Well, I don’t know about you, but I find it G-d D-mned inconvenient to be scared every time my kids go to school because somebody might decide to hose down the playground, and I think people who get shot by their local crack dealer find that massively inconvenient as well. In fact, I’ll go out on a limb and say that getting shot is even less convenient than seeing a topless dancer. So, yeah, let’s regulate it and call it non-infringement. We don’t infringe the implicit constitutional right to travel by making sensible safety restrictions on driving, including taking away licenses for nothing but going too fast too often.
    Gun absolutists make me tired.

87. Katherine and Doc Science, thanks for your responses. I for one am certainly not an absolutist on the issue, and have no problem with licensing requirements or bans on machine-gun ownership, etc. I also freely admit that this debate is at its bottom an emotional one, not a rational one. I’d be willing to bet that most of us, on either side, either like guns or don’t like guns, and that’s how we choose our side in this debate.

88. Brett – if there was a way of keeping guns confined to yours and similar streets, I’m sure the gun controllers would soon vanish, or at least become insignificant.

89. Beyond not wanting them in my house, I’m fairly neutral on guns. It’s gun nuts I don’t like.
    Seriously: that’s what puts a chip on my shoulder. The claim that gun ownership is a fundamental civil or human right, equivalent to free speech, freedom of religion, due process, equal protection, bans on torture &
    summary execution. No, it isn’t. It just isn’t. Even conceding that it’s more explicitly protected in the bill of rights than the right to privacy–well, that was their mistake. We may be stuck with it, but let’s please not pretend that it’s the same sort of fundamental liberty. It’s an anachronism every bit as much as the Third Amendment; except that this particular anachronism lines up with a lot of people’s recreational activities or insecurities about crime. But as a fundamental liberty? Or as a fundamental protection of other liberties?
    I don’t have a real problem with hunting. I have a giant problem with people acting like the assault weapons ban is comparable to the suspension of habeas corpus, or wondering why Amnesty international doesn’t protect the human right of bearing arms.

90. Katherine, there are nuts on both sides of this argument. I mean, for instance, take Trilobyte’s reading of the 2nd amendment. It is literally insane: Nobody in their right mind could possibly think it’s an honest reading of what that text says. In fact, founding era commentators on the 2nd amendment used the scheme he proposed as an example of what the 2nd amendment was supposed to FORBID!
    But there are people who suffer from what we pro-gunners have come to call “gun-aversive dyslexia”;
    http://www.guncite.com/journals/tennmed.html
    People suffering from this condition are apparently simply incapable of understanding when they’re reading something that doesn’t agree with their viewpoint. They’ll do things like look at graph showing crime go down where guns are more common, and refer to it doing the opposite.
    Or reading an amendment prohibiting disarming the people as empowering the government to do it.

91. Hear, hear, Katherine.
    I cannot take gun ownership seriously as a human right or a guarantor of liberty. Gun lovers generally seem to fall into three categories: criminals, authoritarians, and the kind of libertarians who think all government is intolerable but never actually do anything about it. None of these are going to defend liberty. Private individuals have hardly ever successfully resisted government oppression by force of arms — our Revolution was basically a civil war, with a government and state army on each side, and we still needed a ton of help from France. I guess you could point to Russia, China, France, and Iran, but what lousy role models! Plus, those were all very top-heavy centralized states, unlike ours. In this country, the most the NRA-ers will ever accomplish is what they did at Waco and Ruby Ridge: take a few cops with them when they die.
    If the NRA actually cared about liberty, it would a) join the ACLU, and b) scream bloody murder about increased government search and surveillance powers — no revolutionary movement is going to get off the ground with the NSA tapping its phones. That the NRA has taken no position on this proves it’s a phoney.

92. Tril, on the one hand we’ve got the ACLU, which despite advertising itself as your one stop civil liberties defender, eventually got around to explicitly disavowing any concern for the Bill of Rights, (Strossen’s notorious “not coextensive” remark.) and to this day still prostitutes itself by throwing it’s credibility behind the revisionist take on the 2nd amendment.
    On the other hand we’ve to the NRA, which despite explicitly being a single subject lobbying organization, (Note that it’s National Rifle Association, not National Civil Liberties Association.) has occasionally teamed up with the ACLU to defend the first amendment.
    Pretty good for an organization with a single purpose: Defending one of the civil rights your vaunted ACLU can’t bring itself to defend.

93. FWIW, I agree with you about the ACLU, but I’m still glad it’s there b/c it comes a lot closer to generally defending liberty than any other organization.
    But the NRA — what good does it do to keep your guns if you cannot organize in private? You’ll simply get killed in lots of one-man stands. Anybody seriously concerned that he may someday have to use his weapons against the government, and who wants more success than just taking a couple of thugs down with him at best, should join the ACLU and also push hard against pro-surveillance legislators and legislation. Otherwise, the NRA is just a hobbyists’ group for a hobby that happens to have some constitutional support, and all of its rhetoric about preserving liberty is just that, rhetoric. I don’t mind that people like guns, they’re pretty neat and all, but I don’t think they should give themselves airs, and if they don’t really care about using guns to preserve the option of revolutionary militia, they should stop pretending they do. It’s bad faith.

94. WHY SHOULD WE LISTEN TO THE FOUNDERS?
    Brian:
    As someone who had to pass a test and take an oath to sign up for this government of the people, by the people, and for the people thing, I may not be the best person to address your question. On the other hand, what kind of answer can you expect from anybody who immigrated into the contemporary US via the birth canal? Native-born citizens are in an odd position vis a vis the rules of a nation into which they did not in any sense _choose_ to be born.
    So, for what it’s worth: I consciously chose to join a game with pre-established rules. One of those rules is that the Constitution circumscribes all the permissible rules. “The” Constitution is not a piece of parchment under glass in the National Archives. It is a set of ideas accepted by contemporary Americans. Which Americans? Well, enough of them to make the dissenters marginal crackpots. For imstance: it is almost universally agreed among present-day adult Americans that the way to amend “the Constitution” is to follow the procedures laid out in the Constitution itself. It is marginal crackpottery to suggest, for instance, that the 2nd Amendment is null and void merely because the Founders never contemplated “arms” beyond cutlasses and muzzle-loading muskets. It is also marginal crackpottery to argue that a couple of centuries’ worth of Constitutional explication by the courts ordained by the Constitution count for nothing. Roe v. Wade may have been “judge-made law”, but any American under 40 entered a nation where Roe was as much a part of “the rules” as the 2nd Amendment. Americans can argue that Roe _should_not_ be part of the rules, without being marginal crackpots. But if they argue that it _is_not_ part of the rules, they are marginal crackpots.
    So I suppose the answer to your question is this: if we Americans (by birth or by choice) want to change “the Constitution” as understood and accepted by the generation of Americans who let us into this place (and are still around to argue with) all we have to do is agree amongst ourselves what our new understanding is, and change “the Constitution” by constitutional methods. What defines “constitutional methods”? Well, methods that all Americans (except marginal crackpots) agree are “constitutional”. I freely grant that this seems like circular logic, but I do insist on this distinction: it’s one thing to argue against abolishing the 2nd Amendment by a vote of 2/3 of Congress and 3/4 of the states, and it is quite another to argue that such an abolition would be “unconstitutional”. The former is the American position. The latter is a marginal, crackpot position — though it does, occasionally, seem to be the NRA position 🙂
    — TP

95. I’ve occasionally heard that latter view expressed, but I assure you it’s a marginal position within the NRA, too. Though it’s not quite totally irrational, the reasoning being that the Constitution was originally ratified with the understanding that the Bill of Rights would follow, so repealing any part of the Bill of Rights is a deal breaker.
    This is not a good legal argument, to say the least, whatever it’s merits as moral reasoning.
    Kind of irrelevant, anyway, under the circumstances; All but a handful of states have analogs to the 2nd amendment in their state constitutions, a few adopted fairly recently. And state constitutions are, typically, quite a bit easier to amend than the federal constitution.
    Where has the gun control movement managed to get any of these state RKBA amendments repealed? Nowhere in recent memory, that I know of.
    There simply isn’t any base of support for repealing the 2nd amendment, and I don’t see there being any significant mass movement in that direction any time soon. Not suprising, the gun control movement has never been a real mass movement, it’s perhaps THE classic example of astroturf.

96. I’ve operated a bunch of different weapons (you wouldn’t believe why, but I’m dying to tell you) and I don’t like them because I have the Barney Fife yips.
    But I’m pretty good in hand-to-hand combat, if you count noogies, wetwillies, and the occasional eye-gouging. I once knocked a guy out in a softball game fracas; the big ones go down hard.
    My father-in-law had a grenade. Thing is, no one knew he had a grenade until after he died and we found it hidden. We took it to the gun store and everyone’s eyes lit up, like all we needed was a foxhole and some foreigners to complete the scene. The local military types finally took care of it.
    Somehow though, everyone else in town knew he had a grenade because they never broke into his house.
    Oddly, they never found out we disposed of the grenade and the nine or ten guns and the excessive ammo because they still wouldn’t break into my mother-in-law’s house.
    Which is a coincidence, because I have no grenade and no gun and no one has broken into my house either.
    I’m curious about this claim that Americans loves their guns to protect themselves from government tyranny. What is the tipping point for this (you know, where does the marginal tax rate need to be), because given the rhetoric on the subject from various hard guys on the right, in and out of office, there doesn’t seem to be much follow-thru?
    Maybe guys with lots of guns and juicy hard talk are pussies and they secretly like tyranny. Well, the pretend kind.
    I’m not against hunting with a gun and I really don’t mind folks owning a weapon of some reasonable kind if they wish to protect themselves in their homes.
    Here’s what I mind. Those guys with paunches on the hunting channel, camoflaged from head to toe like the guy with the scarred face in “Platoon”, sneaking up on a tom turkey in the woods and whispering to the viewers.
    I don’t mind that. Then they shoot the tom turkey (beautiful plumage arrayed, he thinks, for the drab females; but unarmed, minding his own business, not even contemplating breaking into Brett’s place) from about 40 feet away.
    Fine, I don’t mind that either. In fact, when do we eat? I’ll make the oyster stuffing, having blown the oysters out of their lairs with sticks of dyamite.
    Wanna know what I mind? The two fat guys, out-of breath from lugging around their flasks, trundle up to the now-dead turkey and hold him up and tell us how BEAUTIFUL that dead turkey is, ain’t he a beaut…… and all I can think is, shut up, the turkey WAS beautiful a few minutes ago before he got it in the gizzard and the sun reflected off of his feathers as he moved through the trees.
    Now he’s dead meat and his plumage is fading. Go home and eat the meat.
    But shut up. I think the turkey needs his own show.

97. Basically, what’s the phrase about the militia doing in there in your reading, if it doesn’t have anything to do with the rights in the second part of the sentence?
    I think of it as more of a historical anachronism. The founders all knew and studied classical history in their day and drew as much from Roman Republic and Greece as they did England. Back in Roman days all land owning males (the same types who were granted the franchise in the US) were also required to maintain a set of armor to wear if called in defense of their country. When there were not any wars on, they still had to keep the arms ready.
    This seems the only way to solve Dr Science’s disparity.

98. But it does have something to do with the right, and you don’t have to do a lot of research to find a contemporary explanation.
    They thought a properly trained and equipped, “well regulated” in the language of the day, militia, was necessary for a free state to be secure. (Not any state, a free state.) They may have been factually incorrect about this, or circumstances may have changed, but they did believe this.
    They also knew that states are sometimes lazy about doing what’s necessary for such security, or even may end up run by people who don’t WANT them to remain secure.
    So it was entirely possible that the militia system might have been abandoned, or transformed into the practical equivalent of a standing army. As did in fact happen.
    However, if the right to own and train with the relevant weapons was protected, even if the militia system were abandoned, an armed populace would exist from which it could be revived at need on short notice.
    Thus respecting the right of people to own and train with such weapons outside of the militia protects the militia system against government efforts to render it impossible to restore.
    But it’s clear from contemporary writings that they didn’t consider this to be the only value of the right. It was more of a way to underscore why the right was particularly important.

99. Well Brett, here’s my question how does one interpret the words “free state”. We may read it today as ‘the US nation-state’ but they didn’t talk that way back then. A state was VA or MA or NY or PA. But the US when described was plural. I tend to think (note: I’m no originalist; but I do like history) that the founders envisioned a EU type arrangement. The gov’t would manage trade between the states and conduct diplomacy with Europe on behalf of all states.

100. A few (hopefully) final thoughts from me:
     1. Despite assumptions to the contrary, I do not own a gun, though I once fired a target pistol at a shooting range. Also, I have spent plenty of time living in the Big, Dangerous City, and I’ve never lived in what you would call a rural area. I have no personal stake in the 2nd Amendment.
     2. I do not believe the right to keep and bear arms to be anywhere in the same ballpark as the civil liberties Katherine mentioned. However, as I said before, this right raises the bar for government to be able to engage in tyranny.
     3. My goal isn’t to say whether the drafters of the 2nd Amendment were right or wrong in their beliefs about its effects; certainly, given their personal history, their beliefs were at least justifiable, but this doesn’t mean they were right. I personally believe they were mostly right on this issue; however, a reasonable person can conclude they were wrong.
     4. Regardless of whether the drafters were right or wrong, this debate is supposed to be about whether the 2nd Amendment is an individual or a collective right. I have yet to see a compelling reason as to how the 2nd Amendment can be read to be a “collective” right rather than an individual right, particularly taken in context with the rest of the Bill of Rights.
     5. I am not a 2nd Amendment absolutist in any way, shape or form. Frankly, just like any other constitutional right, firearms laws should be subject to strict scrutiny by SCOTUS; however, firearms laws are far more likely to survive strict scrutiny than other Constitutional rights, in my opinion. Indeed, I think most (though not all) existing state and federal firearms laws and regs would (and should) pass strict scrutiny because the government interest may be particularly compelling. Since most gun laws are also not absolute prohibitions, I think you can also make a winning argument that, particularly on the state level, they are narrowly tailored.

101. Oh, I imagine a great many firearms laws could pass genuine strict scrutiny. (As opposed to the faux ‘strict scrutiny’ the 5th circuit applied in the Emerson case.) Laws against murdering people with a firearm, laws against assaulting people with a firearm, laws against armed robbery, laws against reckless endangerment. Product safety laws prohibiting firearms which tend to explode in the user’s hand, or fire without a finger pulling the trigger….
     What would NOT pass strict scrutiny are the sorts of firearms laws that the gun control movement promotes. Laws banning firearms on the basis of scary cosmetic features. Laws banning firearms that are affordable. Laws banning ownership of firearms by people who’ve committed only misdemeanors, (Name another civil liberty you can lose for life with a misdemeanor violation.) laws banning all effective ammo, laws arbitrarily limiting the frequency with which you can purchase firearms, or requiring somebody who wants to exercise this civil liberty to obtain a license to do so…
     Oh, yes, there are laws that will pass strict scrutiny, and there are a great many laws which would fail it in a heartbeat. And it’s the latter that the gun control movement puts it’s efforts into passing. Because the gun control movement isn’t about reasonable regulations, it’s about extinguishing a liberty it finds offensive.

102. Mark:
     I lean toward an “individual right” interpretation, myself. I just don’t think it settles anything. You and I unquestionably have an “individual” right to _vote_, too. Had the framers written,
     “Free elections, being necessary to self-government, the right of the people to cast secret ballots shall not be infringed”,
     would we read that as giving each of us, individually, the right to vote whether there’s an election on or not? An individual right can be such that it can only be exercised collectively, is all I’m saying.
     — TP

103. Crap. Just wanted to get out one point that goes to the effectiveness of gun control rather than its Constitutionality. Prohibition of guns isn’t likely to work much better than prohibition of drugs as long as the “War on Drugs” continues to make the black market drug trade a lucrative business. (and no, I don’t do drugs, either).
     Economists have pretty well shown that demand for drugs does not change much with price, so attempts to control the supply side (per the focus of the US War on Drugs) just make drug dealing even more lucrative. The more lucrative the black market drug trade, the more violent crime you get. High violent crime rates within the drug trade creates demand for increasingly high powered weaponry within the drug trade. So as long as you have a particularly lucrative black market in drugs, demand for firearms isn’t going to be affected much by price either. As long as that high demand continues, someone will find a way to supply it- whether through “straw purchases,” theft, or other illegal means, including smuggling (if guns are banned completely).
     So, if you want gun control to have any chance to be effective, you first have to reduce the demand for illegal guns; since the War on Drugs is effectively the source of most of that demand for illegal drugs, the best way to reduce demand for illegal guns would be to end the War on Drugs. Ending the supply-side focus of the War on Drugs would not only reduce demand for illegal firearms, but it would theoretically make the demand curve for those firearms significantly steeper and more readily affected by price changes caused by stricter gun control.

104. But without the violent crime fostered by the war on drugs, gun controllers lose one of their best excuses for disarming people. What’s the point in banning guns if you don’t have a problem with gun violence? Simple distaste for firearms ownership?

105. What is the tipping point for this (you know, where does the marginal tax rate need to be), because given the rhetoric on the subject from various hard guys on the right, in and out of office, there doesn’t seem to be much follow-thru?
     i know it’s a rhetorical question, but i’m going to answer it anyway.
     the tipping point comes, when a Democrat takes office. then armed militias are all the rage – isolated compounds with fireside tales of black helicopters and Hitlery KKKlinton are like soul-refreshing spas for the politically out-of-power sociopathic gun fetish set; that’s when the misguided truck bombers, egged on by constant tales of oppression and unconstitutional corruptors of True American Values, strike out against the oppressive government but miss the real targets (that wicked liberal media doncha know); and that’s when the vigilantes set out to stalk doctors, bomb them, shoot them in their kitchens. that’s when the right to bear arms gets good and valuable. when they realize it’s not their guys tapping the phones, jailing the marginal, sending the youth off to die for vanity and lies anymore, it’s the usurpers: that’s when you need a well-armed, but highly irregular, militia.
     no, you don’t need it now. but you will, soon.
     Jan 09. that’s when we’ll start to hear about how oppressive and intrusive the government is. Rush will decide Hillary has too much power. and all that anti-liberal rage you see now on blogs will find its way back into real life.
     ga.rone.tee.

106. Brett: It’s not, as far as I am concerned, a civil liberty. It’s placement in the bill of rights doesn’t magically make it a fundamental human right or civil liberty, anymore than the fact that habeas corpus isn’t placed there makes it NOT a fundamental right. It’s a constitutional right, but it probably shouldn’t be. It is, if not actively harmful (I am ambivalent) not worth one half of one clause of one sentence of the habeas provision, the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Thirteenth, Fourteenth, Fifteenth, or Nineteenth Amendments. It is a liberty, but the ACLU is under no obligation to take the position all constitutionally-protected liberties are equally important.
     I don’t think the ACLU should be actively opposing gun control based on their mandate, but I don’t see why they need to care. They aren’t big on invoking the tenth amendment either, as it’s not really an individual right; they do sue on the basis of civil-liberty-protecting laws that aren’t in the constitution, like the refugee convention, the torture convention, the Freedom of Immigration Act, and FISA. Anyway, for some reason that shows something fairly screwy about this country, the NRA probably has more money & more members.

107. Just to be clear, I’m consciously stepping back from the specific letter of the law to the foundational questions like “What’s the justification for this, and how do we know whether it’s true?” My problem with a lot of arguments for the widespread ownership and willingness to use firearms is, at this point, twofold: the most organized and most vocal champions of the claimed right are lying toadies to tyranny, taken as a group.
     They deal in lies when it comes to the studied effects of gun ownership and use in various conditions. The persistent fraud John Lott is the most prominent case in this category, but not the only one, and even now – years after his repeated acts of conscious deception and manipulation were exposed to the public – his work is the capstone of many arguments. Gross error both intended and otherwise shows up in pretty much every other study used to support the claim of a strong RTKBA’s benefits. The people most devoted to defending and advancing the right are, as a group, far removed from the truth, and by choice as well as by ignorance and incompetence in various technical matters.
     They don’t just fail to resist tyranny, as long as it comes with liberal-bashing, they enthusiastically endorse it. The NRA does sometimes join with the ACLU and other civil liberties groups, but collectively and individually, champions of gun owners’ rights have been all too glad to support immoral war abroad and unrestricted state power at home, as long as they can fantasize about oppressing all the entries on their various enemies lists. They haven’t just been quiet in the face of these encroachments – they’ve shouted in favor of them and tried to drown out all opposition. There are worthy exceptions, but (to engage in a little synecdoche) for every Jim Henley or Justin Raimondo there are a lot of Glenn Reynoldses. Where were all those gun owners out to make the state afraid to abolish habeus corpus, use secret evidence in secret trials, and all the rest? Not out doing a damn thing to stop it, certainly not living up to the fantasies I heard all through the ’80s and ’90s of heroic resistance to the tyrants. That apparently only applies if the tyrants are Clintons or perhaps daycare centers.
     Now, it’s possible for a worthy cause to have entirely unworthy champions. Heck, St. Paul said that would be often true of the Christian church. But on a practical level, when I find an entire movement resting on a foundation heavy on the lies and the self-deception, I do feel free to ask whether there may be something wrong with their aim as well as their methods. In this case, I am at the minimum now unconvinced of the aim’s correctness, even though I don’t find arguments like publius’ any more convincing.

108. “Which is a coincidence, because I have no grenade and no gun and no one has broken into my house either.”
     Two of my wife’s eight sets of great grandparents were slaughtered in their homes. One set by Cossacks, another by Scots-Irish half a world away (hopefully my bloodline had nothing to do with it). The land and crops were taken and life went on for the victors. My wife and children exist because the Scots-Irish were kind enough to allow the great-grandmother to carry a pregnancy to term and, if the child was a girl, allow it to live. After crossing the Atlantic as an embryo, my wife’s grandfather was born.
     America-2007 is La La Land. The poor in New Orleans are grotesquely obese gluttons. Weakness is glorified. Strength is apologized for. That is our modern political world. You see Japanese tourists taking pictures and you may mock them. But they have this game called ‘The Fattest American’. They take pictures and compete to see who photographed the biggest one back on the island.
     $70 trillion in the hole by accrual accounting, rising by $3 trillion a year, and accelerating. Everything changes when the resources run out. There has been nothing new under the sun since Adam.

109. Bill, if you’re interested in why low-income people in the US tend to be overweight, a good place to start is here. I think it’s actually worth a threadsworth of discussion all on it’s own.

110. You see Japanese tourists taking pictures and you may mock them. But they have this game called ‘The Fattest American’. They take pictures and compete to see who photographed the biggest one back on the island.
     While the Japanese obliviousness to others feelings shouldn’t be underestimated, and Japanese do tend to treat foreigners as animals at an exotic pet shop, I’d be surprised if this were an actual ‘game’.
     And speaking of Japan, they have a regime of gun control laws that would have Brett rolled up in a fetal post, yet many of their facets of society are precisely what are longed for by conservatives. Sometimes you can’t get from X to Y by going thru P

111. “…yet many of their facets of society are precisely what are longed for by conservatives.”
     Oh, yeah, I really long to be required to keep a set of my house keys on file with the police, for their convenience when they feel like doing a warrentless search of my home. And who wouldn’t like a ‘justice’ system that achieves a virtually 100% conviction rate by torturing suspects into signing confessions?
     Japan is a polite police state. They don’t really have a lot to teach anybody who is fond of civil liberties. ANY of them.
     Oh, and Katherine? Just keep in mind that an awful lot of people DO regard the right to be armed as a fundamental liberty. This is one of those great philosophical divides, I suppose. At any rate, contra Nadine, it’s placement in the Bill of Rights alone IS sufficient to make the right to keep and bear arms a “civil liberty”.
     http://www.m-w.com/dictionary/civil%20liberty
     Maybe the ACLU ought to change it’s name. I don’t think the “American Civil Liberties Are Whatever We Say They Are Union” is taken.

112. The poor in New Orleans are grotesquely obese gluttons.
     Yeah, check out Jabba the Hutts. And little mister Twinkie Hoover here. Step away from the pie, fatties. Why don’t you maybe walk a mile or two, tons of fun?
     Jesus wept. Talk about bad-faith arguments.

113. Oh, and as to the thread topic, I think the right outlined in the Second Amendment is a personal right, I don’t care about the argument concerning defense against government tyranny, I do care about gun ownership as a means of defending one’s home, self and family from violent crime, I do not own a gun, and I have no problem with common-sense licensing and registration laws. That’s all I intend to say on the matter.

114. Oh, yeah, I really long to be required to keep a set of my house keys on file with the police, for their convenience when they feel like doing a warrentless search of my home.
     I don’t believe they get to keep your house keys on file. Here’s rundown of how it works here, though I don’t agree with Kopel’s conclusions, though I have been involved in protesting problems with the Japanese approach to civil rights (though the current administration’s opinion of civil rights is making things here look better and better), but an understanding of _why_ the Japanese approach to civil rights is different is much more enlightening than simply dismissing it our of hand.
     However, my point is that it seems a bit paradoxical to long for a more ‘polite’ society, and simultaneously demand more freedom to own guns of all types.

115. I don’t long for a more polite society. I long for a thicker skinned society; You can’t have freedom if everybody goes around all bare nerve endings, poised to be offended. Freedom requires thick skin.

116. Brett,
     Then you should move over here, as the thick-skinned Japanese approach to civil rights is right up your alley.

117. Oh, and this, from Doctor Science above, was interesting to me:

     For the Puritans and their cultural descendents (including both John Adams and John Kerry), “freedom” is the ability of a community to order itself, to collectively choose the terms of its restraint.

     Rudy Giuliani said something similar to this — Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do. — and was recently raked over the coals by liberal blogs for it. Maybe I’m missing a disconnect between the two statements?

118. Rudy is making a case for the iron fist of Authority. his freedom is manicured, guarded, enforced. you Do Not Fnck Around under Rudy’s freedom.
     i read D.S. as saying local communities should be able to decide for themselves what they want to do. they could choose Rudy’s freedom, or they could choose something a little less strident.

119. and, just in case anyone was wondering where Ron Paul stood on the issue, here’s a fundraising letter he just sent out.
     in short: he’s one of those clowns who thinks the UN is going to take away our guns.
     take a look at the link though. the guy’s a nut.

120. Nah, they’re making the exact same claim: “Slavery is freedom”.
     “i read D.S. as saying local communities should be able to decide for themselves what they want to do.”
     But “communities” are collectives, not individuals; Whenever a “community” decides what “they” want to do, it’s really just some people deciding what other people will do.

121. “in short: he’s one of those clowns who thinks the UN is going to take away our guns.
     If the UN doesn’t, it’s purely for lack of ability, they certainly make no secret of wanting to, and there’s no lack of people at home who’d love to help them with it.

122. I’m always amused that people like McCardle want to read an entire section of the US Constitution, namely the introductory clause to the 2d amendment relating to the “well-regulated militia” as a reason for RKBA, out of the Constitution. But that is precisely what they would be doing when they claim that RKBA is an individual right, irrespective of the existence in a state of a militia.
     The US Supremes haven’t taken a case since US v. Miller in 1939, despite having had numerous opportunities to do so, so it isn’t worth spending a lot of time on. If the McCardels of the world wish to argue that gun control is bad policy, they should argue it on that ground. Not because it is a constitutional right.

123. Bill:
     “American in 2007 is La La Land.”
     Yup, no disagreement from me on that point. I attribute it to Americans living the Constitution to the full extent of its words. Including “and” and “the”.
     That’ll be cleared up soon as George Bush makes origami pteradactyls out of the document.
     “The poor in New Orleans are grotesquely obese gluttons.”
     I blame Chef Paul Prudhomme for that. Al Hirt lost his girlish figure early on and Fats Domino would be hardpressed to give up the hushpuppies. Have you seen Emeril Lagasse lately on the Food Channel? He looks ready to burst the way his neck has blown up to the same size as his head.
     Obviously the poor in New Orleans need to stop feeding these guys.
     “Weakness is glorified.”
     On which channel?
     Brett:
     “Whenever a “community” decides what “they” want to do, it’s really just some people deciding what other people will do.”
     This is true. I’ve always held some resentment about the “community” of the Founding Fathers getting together without my input and making a hash out the English language in the Second Amendment.
     “If the UN doesn’t, it’s purely for lack of ability .”
     And we just sit here pointing our guns at the TV. I want follow-thru. I want preventative action. Otherwise the guns are just toys of the kind Freud might approve of.

124. Whenever a “community” decides what “they” want to do, it’s really just some people deciding what other people will do.
     oh fer chrissakes. by that logic, three people deciding together what kind of pizza to get is an act of oppression.
     oh noes! someone won’t get the perfect pie! liberties are being sacrificed in the name of just wanting to get some frikkin lunch. why, it’s SLAVERY!!!

125. Hey, Raj, long time no rant! How are you getting on these days? We LandVer’s miss you.
     If I had to chose between reading out the introductory clause of the 2nd amendment, or reading out the body of it, clearly it’s the introduction you’d ditch. But there’s no conflict between them, except for people who insist that regulating the militia involves disarming the people.

126. Brett, re LandV, sorry, but it’s become something of a broken record. I go there every once in a while to observe, but you all have become way too predictable.

127. cleek: Thanks for the pointer. I would have given you a proper hat tip, but was afraid of drawing the R0n P@ul fanatics to this thread.
     (Mark, I hope you know I don’t count you as part of the Prison Planet set).

128. Living in a part of the country where it is not unusual to celebrate cowboys and outlaws and to stage reenactments of shootouts on Main Street, I find it — I don’t know, amusing? — to note that in g’g’grandfather’s day, when they had a much closer view of the Founders’ intent, the first thing that happened when the town reached a certain size was that everyone had to check their handguns with the local authorities when they arrived. If you lived in town, you left your guns at your house unless you were on the way out of town.
     I suspect g’g’grandpa’s outlook was that the Founders were pragmatic, as he was; and that the right to bear arms must be balanced against the right of innocent people to not get shot.

129. “If the UN doesn’t, it’s purely for lack of ability, they certainly make no secret of wanting to, and there’s no lack of people at home who’d love to help them with it.”
     This is another case of attributing agency where none exists.
     The most dominant force in the UN is the United States of America. But, simply put, there’s no there there. There’s no Mind Of The UN to have an opinion on anything, let alone a desire; there are only 192 contending interests of vastly disparate power.
     There is no “they” in agreement about anything. Analysis based on imaginary agency necessarily must go astray.

130. The UN actually has a program to control small arms – at least the illicit trade. Quite a lot of work in that area has been done by Switzerland. But hey, don’t let facts stand in the way of some traditional UN bashing.

131. The UN actually has a program to control small arms – at least the illicit trade. Quite a lot of work in that area has been done by Switzerland.
     As far as I can tell, Switzerland is not part of the UN.

132. “As far as I can tell, Switzerland is not part of the UN.”
     A matter of maintaining the strict policy of neutrality (unfortunate about bending it in favor of Adolf Hitler, but, hey, his stock was good for a while), Switzerland is famously not a member of the UN. (Zanzibar’s non-membership is, on the other hand, obscure; all the other non-members are either the Palestinian Authority, or islands much smaller than Zanzibar.)

133. I thought Zanzibar was part of Tanzania?

134. Katherine | October 06, 2007 at 03:21 PM
     It is
     https://www.cia.gov/library/publications/the-world-factbook/geos/tz.html
     The CIA world factbook (the link is to a page there) is actually quite useful.

135. “The UN actually has a program to control small arms – at least the illicit trade.”
     It also has a somewhat expansive, at least by American standards, view of what constitutes reasonable measures to control the illicit trade in them.
     Such as prohibiting transfers of firearms to private individuals.
     Mandating destruction of surplus military firearms, instead of their sale to private citizens.
     And both restrictive licensing and registration of guns where private citizens are permitted to own them. Which is discouraged…
     Essentially the UN’s approach to ‘illicit’ firearms does not really regard private ownership of them as ‘licit’, merely not yet adequately suppressed.

136. Cleek:
     “oh fer chrissakes, by that logic three people deciding what kind of pizza to get is an act of oppression.”
     Our Founding Fathers wrestled with this issue. If you dig through the midden out back of the hall where the Constitutional Conventions were held, there is telltale evidence (boxes with the Domino’s logo barely legible) that some tried to force the matter of anchovies on the others.
     For example, Jefferson included the words “excluding anchovies is self-evident” in the Constitution, having read deeply in his Montesqsuieu and Locke.
     Franklin, when asked what had been wrought, famously said, “A pizza without anchovies, if you can keep it.”
     Patrick Henry, not one to compromise, declared, “I’ll kill the first mofo (wonder if O’Reilly knows that) who puts a single skanky fish on my pizza, or my name isn’t Betsy Ross.”
     Somewhat later, Alexander Hamilton wanted anchovy pizzas to be the standard currency, and Aaron Burr shot him right through the eye for that, though recent evidence reveals that Burr was actually more upset about the extra thin crust.
     And we all know that Andrew Jackson’s pepperoni brigade stomped all over the White House upholstry in their muddy boots celebrating the vanquishing of the more cosmopolitan anchovey lovers.
     Since then, all hell has broken loose with pizza now carrying toppings like gorgonzola cheese, caper berries, and squid ink. Against the wishes of many, I might add.
     Thus the reactionary Reagan Revolution and the Gingrich uprising and George W. Bush’s Supreme Court appointees, like Clarence Thomas, who claims
     “I say those are anchovies, and to hell with them!”
     And of course, there is that long lost amendment, “A well-regulated pizza, being necessary to the security of a free state, the right of the people to turn their noses up at and eschew anchovies, shall not be infringed”…. rejected because Sam Adams thought that might disallow the later addition of more highly-flavored ingredients.
     Legend varies.

137. yeah, O.K., Thomas was placed by the other Bush.
     History is a living document, don’t you know?

138. As far as I can tell, Switzerland is not part of the UN.
     They are since 2002
     @Brett: did you read the link about Switzerland? You have a problem with restrictive licensing and registration????

139. “The claim that gun ownership is a fundamental civil or human right, equivalent to free speech, freedom of religion, due process, equal protection, bans on torture &
     summary execution. No, it isn’t. It just isn’t. Even conceding that it’s more explicitly protected in the bill of rights than the right to privacy–well, that was their mistake. We may be stuck with it, but let’s please not pretend that it’s the same sort of fundamental liberty.”
     I’m pretty sure you aren’t opposed to this idea, but I want to make perfectly clear that so far as Constitutional Law is concerned, the 2nd amendment absolutely is 100% as fundamental a liberty as the 1st amendment. If you are using “fundamental liberty” as a term of art in Constitutional law, it is every bit as important. If you are using it in a philosophical mode, you can define it however you want but that is a completely different thing.
     The Bill of Rights exists because certain things were to be set apart from moment-to-moment politically motivated disagreements. That fact that certain people value the rights in some amendments more than others isn’t a surprise, and hasn’t been since the Bill of Rights was added to the Constitution. Hell, in the first amendment there are people who seem to think the free press right is somehow more important than the free speech right or that the free press right is only held by “THE PRESS” instead of anybody who can write.
     But from a procedural point of view, you don’t get to pick and choose just because you personally like some rights better. Legal gymanastics to avoid the 2nd amendment can easily be applied to any of them. We shouldn’t legitimize such tactics against unfavored rights, if only because we don’t want them to be used against favored rights.

140. Yeah, as far as legal construction, we’re stuck with it–if I argue for a broad, purposive reading of the rest of the individual rights provisions, then I think I have to interpret this as an individual right (albeit one subject to some regulation based on both the text & simple common sense). But as far as cases I would choose to bring? Not interested. I don’t pretend to be equally attached to every clause of the Constitution. And I somehow don’t think it’s a passing moment or an arbitrary preference that makes the right to own a gun less important than the right to marry or the right to freedom of conscience. (I’d like to see someone come before the immigration court, claiming that he had been persecuted when his gun was confiscated.)

141. (though, I am not sure about its incorporation against the states, given the case law on incorporation through the due process clause, fundamental to ordered liberty, etc. etc.)

142. “(I’d like to see someone come before the immigration court, claiming that he had been persecuted when his gun was confiscated.)”
     I’d like to see how far they’d get complaining that they’d been denied a jury trial; You want to claim that’s not a fundamental right, too?
     Really, all you’re demonstrating, Katherine, is that our nation’s political elite don’t like this right, and would like to extinguish it. And isn’t that when having a right formally laid down in a constitution is most important? When the government doesn’t want to respect the right? There’s certainly little point to having rights explicitly protected when the government feels like respecting them…

143. On the question of incorporation, there’s really no way to tell what the Court will do. It’s not like there’s any real logic behind selective incorporation.
     It was transparently clear at the time that the 14th amendment was supposed to “incorporate” all of the Bill of Rights that were actually about rights, amendments 1-8, via the privileges and immunities clause. The only reason it didn’t happen was that the Court of the time ruled in bad faith in order to render the 14th amendment moot.
     The whole modern incorporation jurisprudence has been a piecemeal effort to repair the damage without admitting the original offense, and just going ahead and incorporating the whole Bill of Rights. There’s no actual sense to it.

144. Brett, I think you miss Katherine’s point and if you were someone going to immigration court, you would probably complain more loudly about the suppression of your other rights than of your right to have army surplus firearms sold to you direct. This suggests that there are some rights that are more important than others. Here is one report demonstrating that.

145. No anchovies? You’ve got the wrong man. I spell my name …

146. I’m kinda ticked my own self about the fact that al Qaeda can buy American weapons of nearly any kind second hand and I can’t.
     That and pallets of American currency. I don’t see anyone forklifting that stuff into my garage.
     That’s it! Brett and I are off to Iraq to live in peace. 😉

147. I would like to congratulate Katherine on her election (appointment?) to our nation’s political elite. Can she maybe put in a good word for me? I can at least carry towels or somethiing.

148. In effect, Brett appears to be saying that the Second Amendment is the brown M&M backstage clause in the Constitution: that it is worth upholding the right to bear arms because this proves all rights in the Bill of Rights are guaranteed, no matter how pointless.
     It would probably be less lethal to change the Second Amendment to give Americans the right to bear brown M&Ms…

149. Nope, the 2nd amendment is neither pointless, nor unpopular. You’re probably misled by the fact that it’s unpopular in certain circles. It’s actually wildly popular as amendments in the Bill of Rights go.
     You’d have an easier time getting the 4th amendment repealed, frankly.

150. Nope, the 2nd amendment is neither pointless, nor unpopular.
     Whether it’s popular or unpopular seems to depend on how you ask the question, rather than who you ask it of.
     There seems absolutely no point to it as a right, however, except on the brown M&Ms level.

151. It’s also a lot f*cking better protected by “the Nation’s political elite” than far more fundamental rights. Of course, YOU may be in more danger of not being able to buy the right model of gun than any of those other rights. Lucky you.

152. I suppose you see little point to rights you personally have no interest in exercising. But I assure you, the results of heavily loaded polling questions aside, the 2nd amendment IS popular.
     You might also suspect there’s a constituency for brown M&M’s, or they wouldn’t be put in the package. 😉

153. And, again, it’s popular because it coincide with people’s recreational preferences +/or worries about crime, not because it is actually a useful protection against government tyranny or fundamental human right. I’m sure if the gov’t was thinking about banning football or baseball then lobbying groups that opposed it would be wildly popular. And I don’t take very seriously as a libertarian anyone who thinks his right to a semi automatic is more fundamental than a stranger’s right not to be tortured, imprisoned without charge, deported without due process, wrongfully convicted or executed because he got appointed a pathetic lawyer, given an excessive sentence in inhumane jail conditions, etc. etc.
     I don’t think I’m going to be waterboarded or charged with a capital crime in Texas, and yet those things bother me.

154. (Mind you, the gov’t SHOULDN’T ban football baseball, hunting, or any other recreational activity that’s not harming other people. But I’m not going to pretend it’s on the level of free speech or due process, & or to have any respect for purported libertarians who care more about their right to not pay taxes & to own a particular model of weapon than they do about strangers’ right to, well, anything at all.).

155. not because it is actually a useful protection against government tyranny or fundamental human right
     I think to the extent that it ties into one’s right to defend oneself from harm — i.e., the right of self-defense — it is pretty fundamental, but there’s clearly room for interpretation. Or maybe you don’t think the right to self-defense is fundamental, and I don’t want to assume. But I, personally, think that right is as fundamental as all the others you mention. The disagreement comes in how it’s made manifest.

156. You keep saying it’s not a fundamental right, Katherine, but clearly a lot of people disagree with you. Putting aside the whole militia thing, the right to self-defense is considered a fundamental human right by most people (and by the law). And in this country, that right is inextricably bound up with the keeping and bearing of arms. I doubt that will ever change.

157. Doh! Pwned by Phil.

158. Brett:I suppose you see little point to rights you personally have no interest in exercising.
     No, that’s not why I see there’s no point to the Second Amendment. There is no point to it, is there? Any more than there’d be any point to a Constitutionally-protected right to swimming pools. Or brown M&Ms.

159. I think to the extent that it ties into one’s right to defend oneself from harm — i.e., the right of self-defense — it is pretty fundamental
     The right to own guns has nothing to do with the right to self-defense. A right to bullet-proof vests would be more to the point.

160. Late in the game, but my .02.
     Early on someone noted that the words of the amendment can be interpreted “either way” so the ultimate choice is not mandated by the text. On some level, this does seem right to me. Those who point to the words and think their interpretation is “obvious” are deluding themselves.
     Prof. Amar is interesting, but his arguments at times appear too cute by half. And, sometimes — including his views on the exclusionary rule, self-incrimination and incorporation of the Establishment Clause — I find them rather misguided.
     “The right to own guns has nothing to do with the right to self-defense.”
     What’s the pt of such absolutism? Some people buy guns for self-defense. It has “something” to do with the matter.
     But, the 2A is not really about self-defense. This seems part of the problem. In 1789, there surely was generally understood to be some right to own firearms. In some backwood areas in the South, even free blacks were given a right to do so.
     The concern here was the “militia.” A public resource, including before an organized army can be brought to the scene (see Jefferson’s first inaugural address). The militia was not a freestanding entity. It was gov’t regulated and led by gov’t officials.
     If “the people” was disarmed, there would be a problem here. A reasonable argument can be made that the militia would often be armed by the state. The 2A after all doesn’t MANDATE gun ownership. But, if you disarm people, surely in 1789, it would be problematic.
     It still would be today, even in the era of modern police forces. There is also another strand here though. The 2A respects a people’s army (Amar speaks of this too), one that serves on a temporary basis, leading to a civilian mentality. In various respects, Iraq perverts this ideal. The reliance on private contractors surely does.
     Anyway, since self defense still is a fundamental right, the right to have a means of protection isn’t reliant on the 2A alone. This surely applies to the home. It also doesn’t deny the importance of and allowance of regulation. “Regulated” is necessary for liberty to not be license.
     The 14A also in important here though some antebellum state courts recognized BOR “rights of the people” [comparable to “rights of Englishmen”?] to be signals that rights applicable to the states were at stake too.
     Thus, sorry, the 2A is not an anachronism. How it applies today is open to debate, but a “militia” (as compared to a private select army controlling everything) is still necessary for the security of a free state.

161. btw, the “political elite” doesn’t oppose “this one right” as one person suggested. The top Democratic candidates for President in 2004 didn’t deny the right. Top libs did so in the ’60s too. Laurence Tribe … surely part of the dreaded “elite” … even appears to be in that camp. Apparently, the “elite” doesn’t include Ashcroft and others on record supporting an individual rights view.
     A minority of Democrats don’t like it, true enough, but debates over assault weapons or whatnot doesn’t erase that overall the basic right is not at risk on the federal level. Heavy regulation of urban areas, see DC law in the courts now, was in place in antebellum times too. It did not suggest a general lack of support of the right at all.
     Various people don’t like certain types of “speech” either (different sorts depending on your leaning), but “free speech” is generally accepted as a right too. Selective respect of rights, of course, is a tendency of all sides in some respects.

162. “And, again, it’s popular because it coincide with people’s recreational preferences +/or worries about crime, not because it is actually a useful protection against government tyranny or fundamental human right.”
     This seems like such a strange thing to say. The general right to self defense is at least as fundamental as a general right to privacy. Neither appear explicitly in the Constitution. So if we are going to posit a system of jurisprudence from the Constitution which allows for a wide-ranging right to privacy that encompasses as much as people here apparently desire, how in the world can we defend getting hypertechnical about the right to self defense? And we understand that it doesn’t seem as important to you, but isn’t that why we have a Constitution? Human beings rarely can attach importance to all the things that would require our attention if we were perfect.

163. If you think I’m going to discuss this at all with you of all people, Jesurgislac, you’d be better off just getting a sandwich and a nice cold pint down the pub, because I’m not.

164. “The right to self defense” != “the right to own the weapon of my choice” (or rather– “the right to own any weapon I can argue that there’s a right to own without sounding like a complete psycho”, which seems to be the actual principle behind drawing the lines at automatic weaponry but short of cluster-bomb-type artillery shells.)There is a right not to be prosecuted for actions taken in self defense, but that’s not what we’re talking about. That phrasing is carefully chosen to be at the right level of generality, because it’s only by choosing just the right abstraction that you can argue that the right to own particular types of weapons is more fundamental than the right to marry the person you choose, not be forcibly sterilized or forced to bear a child by the gov’t, etc. etc.

165. Joe: What’s the pt of such absolutism? Some people buy guns for self-defense. It has “something” to do with the matter.
     And some people wrap their heads in tinfoil for self-defense. And some people seal rooms in their house with duct tape for self-defense. What some people have been conned into believing they can buy to help defend themselves has nothing to do with a basic right to self-defense.
     Or, what Katherine said, which is more to the point…

166. I’m curious about a pattern I see here.
     Brett said:
     the gun control movement has never been a real mass movement, it’s perhaps THE classic example of astroturf.
     and also:
     our nation’s political elite don’t like this right
     Brett and others have asserted that the 2ndA is extremely popular in the country as a whole, and that the people as a whole abhor gun control.
     I have asserted that *in my state, New Jersey* gun control is popular. I am not talking about “taking away your right to own guns”, I’m talking about issues such as licensing and mandatory training, banning armor-piercing bullets, banning automatic weapons.
     I’m asserting that most New Jerseyans feel that the 2ndA should permit the same degree of restriction on firearms that other Amendments permit on the press (e.g. no printing the names of juvenile arrestees) or assembly (e.g. not with alcohol).
     Here’s my question: do you-all think I’m incorrect about NJ? Do you think that the people of my state are actually in favor of unrestricted access & sale of firearms? Do you think that if we do favor gun control it’s because we’re the pawns of elite political forces, not because of our actual experiences and way of life? Or are we, all of us, that political elite you’re talking about?

167. “I’m asserting that most New Jerseyans feel that the 2ndA should permit the same degree of restriction on firearms that other Amendments permit on the press (e.g. no printing the names of juvenile arrestees)”
     Not printing the names of juvenile arrestees in New Jersey isn’t just a matter of common journalistic practice, or of specific gag orders, but is a matter of law?
     If someone in New Jersey published the name of a juvenile arrestee, the person who published it would be arrested, and charged with a crime, absent a specific prior restraint (gag) order?
     Are you sure?

168. Gary: I don’t know, exactly, because I find ,a href=”http://www.rcfp.org/juvcts/newjersey.html”>this difficult to interpret. This newspaper story implies that even the names of *convicted* juveniles are currently unpublishable under state law, because the legislator wants to change the law.
     So yeah, I think it *is* actually illegal in NJ.

169. “That phrasing is carefully chosen to be at the right level of generality, because it’s only by choosing just the right abstraction that you can argue that the right to own particular types of weapons is more fundamental than the right to marry the person you choose, not be forcibly sterilized or forced to bear a child by the gov’t, etc. etc.”
     Welcome to the law, and your side is SOOOO not able to complain about that. Only by choosing just the right level of abstraction can you argue that the right not to have your papers and house searched without a warrant has anything to do with abortion, but that is explicitly the argument that multiple Justices of the Supreme Court subscribe to. And frankly the 2nd amendment people have a rather tighter level of abstraction than the abortion rights people. I don’t really care about guns, I don’t have one, I don’t see the need to have one, it isn’t at all a big focus. I’m not particularly invested in the fight. But quite a few people are, and it is a much clearer Constitutional right than many that we cherish. As such, I don’t think it is possible to legally attack it the way so many liberals seem to want to without opening the door for all sorts of problems on the rights we do spend time caring about.

     “The right to self defense” != “the right to own the weapon of my choice” (or rather– “the right to own any weapon I can argue that there’s a right to own without sounding like a complete psycho”, which seems to be the actual principle behind drawing the lines at automatic weaponry but short of cluster-bomb-type artillery shells.)

     Similar to levels of abstraction argumentation you can make the other side look bad by picking low frequency maximalist arguments. Am I free to argue as if everyone who wants to have any kind of gun control wants to take away every hunting rifle? I’m pretty sure we’ve talked about the historical distinction between ordnance and arms and how that distinction could play out with modern technology. It is every bit as based in how jurisprudence works as finding that electronic eavesdropping counts as a search.

170. As I have repeatedly said: I am just plain not talking about legal construction. I am talking about what are fundamental human/civil rights, and what aren’t.

171. I would say that on a purely fundamental human/civil rights level, the right to self defense is not as well protected world-wide as it should be, and that guns suitable for self-defense, and their use is not nearly as protected as it should be–see for example the UK.

172. It is deceptive to equate gun ownership to self defense.

173. More generally, Gary, there are laws to restrict publication of material the sole purpose of which is to cause another person harm, right? And there are laws to restrict public assembly under conditions that are very likely to cause people harm (e.g. torches + alcohol). So I’m asserting that *in NJ* people have no trouble with laws to restrict firearms use to parallel degrees.

174. See the UK. See most of Western Europe. See Saddam-era Iraq. See Taliban Afghanistan. See West Africa. Tell me another one about how gun ownership effectively protects people against either gov’t oppression or private violence. Guns are one technological tool that can be used in self defense–but they can be used equally well in massacres and murders. A technology isn’t a principle. You can use computer technology to exercise your right to free expression; you can also use it to spy on people’s email messages & prosecute them for anti-government speech.

175. Sebastian: I would say that on a purely fundamental human/civil rights level, the right to self defense is not as well protected world-wide as it should be, and that guns suitable for self-defense, and their use is not nearly as protected as it should be–see for example the UK.
     I would say that the right to self-defense is perfectly well-protected in the UK. In virtually any city in the UK anyone can sign up to take self-defense classes: most (perhaps all) police forces will willingly provide advice and information on defending yourself and/or your home: and I can think offhand of multiple instances where someone who caused injury to an attacker by defending herself, was never prosecuted (may not even have been charged).
     What is seriously discouraged in the UK is any “right” of armed attack, and the excuse of “self-defense” is not acceptable.

176. “Guns are one technological tool that can be used in self defense–but they can be used equally well in massacres and murders. A technology isn’t a principle. You can use computer technology to exercise your right to free expression; you can also use it to spy on people’s email messages & prosecute them for anti-government speech.”
     It is so strange to see you write things like this because the answer I want is right there but you write as if it was an argument against the idea that gun control and a lack of attention to the right of self defense could be linked. Yes, email is a technology. Most restrictions on it would damage or certainly implicate the right to free speech. Guns are a technology and many restrictions on them damage or implicate the right to self defense.

177. Sebastian: Most restrictions on it would damage or certainly implicate the right to free speech.
     Well, there’s egg and bacon; egg sausage and bacon; egg and spam; egg bacon and spam; egg bacon sausage and spam; spam bacon sausage and spam; spam egg spam spam bacon and spam; spam sausage spam spam bacon spam tomato and spam;
     Spam, spam, spam, spam….
     Guns are a technology and many restrictions on them damage or implicate the right to self defense.
     Which is a nonsense, as noted previously. Guns facilitate armed attack, not self-defense.

178. “Gary: I don’t know, exactly, because I find ,a href=”http://www.rcfp.org/juvcts/newjersey.html”>this difficult to interpret.”
     I find it entirely clear, so let me assure you that it makes confidential the records of a juvenile offender, and it allows a judge to have a closed hearing, if there “a substantial likelihood that specific and extraordinary harm would result from such disclosure,” in which case such reasons must be stated in the record. It also says that hearings must be private, and includes a few other notes of that sort.
     There’s absolutely no provision for a general prior restraint on publishing the names of juvenile offenders, whatever. Absolutely none.
     I’m I’m wrong, do please cite any language authorizing it that I’m missing.
     And it includes this, which I really don’t find unclear at all:

     […] Juvenile name: The New Jersey Court of Appeals held that a trial judge erred in stopping the media from publishing identifying information about a juvenile charged with scalding her two-month-old nephew to death. Because the information was lawfully obtained, its publication was protected by free speech provisions of the U.S. and New Jersey constitutions. State ex rel. H.N., 632 A.2d 537 (N.J. Super. 1993).

     In other words, as I said, judges can grant gag orders in specific cases, for specific reasons. There’s no general law of prior restraint in New Jersey, any more than there is in any other state of the union.
     You’re also, similarly, misinterpreting the newspaper.

     […] Juveniles, even violent offenders, have been accorded anonymity under state law. As a rule of thumb, newspapers do not publish the names of anyone under the age of 18 involved in a crime.

     A “rule of thumb” is not, in fact, law. Similarly, the fact that the state is mandated to not release juvenile records doesn’t speak at all to whether newspapers are allowed to publish them (absent a specific restraining order): they are.
     Newspapers don’t publish the names, as a rule, due to custom. Not law. Not unless there is a specific restraining order in a specific case.
     You’re confusing “juveniles, even violent offenders, have been accorded anonymity under state law,” which is a restraint on the State making public those names, and what newspapers and citizens and everyone else are allowed to do.
     Nothing complicated about it at all. It’s just that simple. Every State of the union is prevented from passing a general prior restraint law (States can’t make national security exceptions). Because of the First Amendment.
     “So yeah, I think it *is* actually illegal in NJ.”
     I’m afraid you’re in error.
     Mind, I continue to stay out of the gnu control argument. But this is a separate point, so I thought I’d attempt to clarify the facts.

179. It is deceptive to equate gun ownership to self defense.
     No, it isn’t. There is a long tradition in this country that gun ownership is very much related to self defense. You can disagree with that tradition’s utility today, but you can’t pretend it doesn’t exist or that it is somehow self-evidently untrue.

180. Guns are a technology and many restrictions on them damage or implicate the right to self defense.
     The current situation in the US is that there are almost no restrictions on gun ownership, sale, or technology. How does the desire of, say, the people in NJ to restrict the sale of armor-piercing bullets restrict the right to self-defense?
     This is aside from the fact that the 2ndA isn’t about personal self-defense, it’s about the relationship between the people and the government. The discussion is about whether the 2ndA is principally about the relationship of individual people to the gov’t, or about the right of groups to oppose the gov’t by force.
     IMHO (not a lawyer blah blah) the right to self-defense goes along with the right to privacy: both are part of the over-reaching, fundamental human right to personal integrity.

181. Thanks for the correction, Gary. Am I correct in thinking that there *are* things the press cannot legally print?

182. I wouldn’t ‘equate’ gun ownership with self defense, but I would say that in this country they are strongly correlated. Of course gun ownership isn’t ‘the same as’ self defense, but it is a big part of the right. Look, a gun equalizes things quite a bit. Two or three thugs with baseball bats or crowbars (things which we certainly can’t legislate against) can own you given pretty much any non-gun weapon you might have. Having a gun means that a moderately trained fairly weak woman can do something other than submit to them if need be. Them having guns too, doesn’t flip the equation back–they are still in danger in a way that pretty much any non-gun defensive weapon doesn’t put them in. That is a fundamental difference between guns and non-guns and that difference has huge implications for self-defense.

183. “This newspaper story implies that even the names of *convicted* juveniles are currently unpublishable under state law, because the legislator wants to change the law.”
     I missed responding to this, sorry. If you read the story more carefully, you’ll see this isn’t true at all. The idea that “the names of *convicted* juveniles are currently unpublishable under state law” is something you’re, well, imagining. I think; ha ha on me if I’m wrong. 🙂
     Newspapers can publish whatever names they want, absent a specific court order. Newspapers commonly (though not universally) refrain from publishing certain names, such as that of rape victims, and juvenile offenders, out of custom.
     The State, on the other hand, restrains itself and its employees from releasing the names of juvenile offenders and sometimes the accused. That’s a restraint only on the state, and its employees: not on anyone else.
     You’re grossly mixing up and confusing these two separate facts.
     The article is about a proposal to make it easier for NJ to bring more juvenile offenders to trial in adult court, which would incidentally have the effect of releasing their names to the public, absent a specific court order.
     This has nothing whatever to do with what newspapers can publishing. Nothing. Whatever. That’s where you’re all confused.
     It’s simply about what the State of New Jersey can do.

     […] An expert in juvenile justice who did not want to be named said that in New Jersey, juveniles are usually tried in family court on charges of juvenile delinquency, but a judge can send them to adult criminal court if the juvenile is deemed “sufficiently violent.”
     But the expert said that there is a reason for concealing of the identity of most juveniles.
     “The point of juvenile justice is the juvenile can be rehabilitated,” the expert said.
     Hudson County Prosecutor Edward DeFazio, who confirmed that Healy met with him before he made his announcement, said he would have to see the legislation to have an opinion.
     “I think there are a limited number of juveniles who, when charged with violent crimes and are 16 or 17, their names should be released,” DeFazio said. “Certainly in the case of homicide, serious aggravated assault, or assault with a weapon.”

     Nothing about newspapers, who remain free today to publish the names of juvenile offenders, unless there’s a specific gag order in a specific case. The newspapers don’t publish the names because it’s custom, not law.
     If you can find anything in that newspaper article, or anywhere else, suggesting that it’s illegal for newspapers to publish the names of juvenile offenders, absent a specific court order, I’ll be most interested.
     But courts wouldn’t have to issue specific gag orders if newspapers were generally restrained. And we’d probably be hearing about more arrested and imprisoned newspaper editors, and tv reporters, and bloggers, and people demanding to know what constitutes “publishing,” does it include posting the name of neighbor billy on a Yahoo discussion group, and….

184. Sebastian: Having a gun means that a moderately trained fairly weak woman can do something other than submit to them if need be.
     And what is she supposed to do when all three thugs have guns – whether or not she also has one?
     Unless she not only owns a gun, but has trained with it, practiced drawing it from wherever she usually carries it, and goes to regular sessions at a shooting range, her having a gun with her is only more likely, rather than less, to get her killed – since even if the three thugs only had baseball bats and crowbars, they now have a gun – the one she brought with her and they took away from her.
     The point about the Second Amendment is that anyone can get a gun – not that men will chivalrously attack women armed only with crowbars, so that the woman can “equalize” the situation by having a gun.

185. From the Violence Policy Centre:

     However, a woman must consider the risks of having a gun in her home, whether she is in a domestic violence situation or not. While two thirds of women who own guns acquired them “primarily for protection against crime,” the results of a California analysis show that “purchasing a handgun provides no protection against homicide among women and is associated with an increase in their risk for intimate partner homicide.” A 2003 study about the risks of firearms in the home found that females living with a gun in the home were nearly three times more likely to be murdered than females with no gun in the home. Finally, another study reports, women who were murdered were more likely, not less likely, to have purchased a handgun in the three years prior to their deaths, again invalidating the idea that a handgun has a protective effect against homicide. For women in America, guns are not used to save lives, but to take them.

186. ThirdGorchBro:
     Yes, there is a tradition in the US that equates gun ownership with self-defense. This tradition is IMHO delusional.
     There are also US traditions that gay marriage will destroy heterosexual marriage, and that a rabbit’s foot brings luck.
     There is no *evidence* that untrammelled gun ownership protects people in general.
     Brett mentioned that his heavily-armed community has been homicide-free for several decades. My lightly-armed community (pop.20,000) has had one homicide in the past decade: a very traditional wife-beating. Are you-all asserting that heavily-armed communities have lower rates of marital homicide than lightly-armed ones?
     This study of When Men Murder Women found the highest rates of males murdering females in: Nevada, Alaska, Louisiana, Arizona, South Carolina, Vermont, Tennessee, Oklahoma, Missouri, North Carolina — not states with low rates of gun ownership.
     Do you really think that having a gun in the house would have saved the woman in my town from being killed?

187. “The point about the Second Amendment is that anyone can get a gun – not that men will chivalrously attack women armed only with crowbars, so that the woman can “equalize” the situation by having a gun.”
     I’m thinking you didn’t read my whole comment since I talked about that…

188. I see that my comment and Jes’s overlapped and dovetailed — hers with house-by-house evidence, mine with both anecdotal and state-by-state evidence.
     Remember what I said early in the conversation about gun control being an emotional issue because guns are a symbol of masculinity? You guy are going to have to work *really* hard to convince me that the connection is just coincidence.

189. I’m thinking you didn’t read my whole comment since I talked about that…
     I assumed that you hadn’t actually considered the situation properly. I still think that.

190. Right, but guns makes it easier for attackers to kill more people more quickly before the police arrive. They make it more likely that an attacker will accidentally shoot someone. They are every bit as useful in harming people as in protecting them; probably more. It’s simply a technology that escalates force on all sides.
     You can tell stories where allowing gun ownership help with self defense: a little old lady shoots three thugs with crowbars; criminals get guns anyway & gun control laws keep guns away from law abiding citizens, etc. etc. Yes, it’s possible. But John Lott aside, there’s not good empirical evidence that widespread gun ownership reduces crime.
     And yes, people occasionally use guns for self defense, and they talk an awful lot about the possibility, but the idea that gun ownership is as much a part of a “fundamental right to bodily integrity” as bans on torture is NRA bullsh*t. You’re talking about gun ownership, so talk about gun ownership. “Self-defense” is simply the way to make talking about it as a fundamental human right comparable to free speech sound non-ludicrous. When you get down to specifics, the argument that the right to own a semiautomatic weapon is as important as the right not to be imprisoned without charge or the right not to be jailed for criticizing the gov’t is indefensible; it sounds much better to make airy generalities about self defense.
     And, of course, whether or not you should be able to shoot a mugger isn’t really the same sort of question about GOV’T oppression as the other rights we’re talking about. As far as a potentially useful tool against government oppression, as opposed to the question of whether gun ownership is good or bad crime policy, the Second Amendment has been made obsolete by our country’s decision to abandon the militia model for a large standing army.

191. “Am I correct in thinking that there *are* things the press cannot legally print?”
     The press can’t publish things that violate a specific court order, according to the law.
     Beyond that, there are various categories of things they can’t legally be prevented from publishing, but for which they may be punished afterwards, such as libel proven in court, and, again, violation of a court order.
     But States being able to pass laws making general categories of prior restraint? No.
     Basically, we have to distinguish between prior restraint, and material punishable after the fact.
     See here.
     Prior restraint is un-Constitutional (thus undermining your point; sorry), save for some extremely narrow national security exceptions: publishing information on troop movements, and the like.
     See Near v. Minnesota.
     This was settled again relatively recently, with United States v. The Progressive, et al, in 1979, in which even the attempt to restrain The Progressive from publishing Howard Morland’s H-Bomb plans was deemed un-Constitutional. Prior restraint, save for extremely narrow national security ground, is un-Constitutional; the Pentagon Papers case reaffirmed it yet again.
     So the answer is pretty much “no.” There are mostly only things they might possibly be punished for later, if cause is proven in a court of law.
     But passing general laws preventing things from being published in newspapers, with the exception of federal law directly related to national security, is unconstitutional for States.

192. Gary:
     I see. I guess I was confusing “things the press can’t legally print” with “things the press’ Legal Dept. will tell them not to print”, e.g. libel, police officers’ home phone numbers, etc. So publishing a police officer’s home address & phone number and saying “go get ‘im” is legal, but actionable? *IANAL*
     Now, what would be the equivalent for armor-piercing bullets, which (like the publication) also don’t kill police officers without help?

193. “Right, but guns makes it easier for attackers to kill more people more quickly before the police arrive. They make it more likely that an attacker will accidentally shoot someone. They are every bit as useful in harming people as in protecting them; probably more. It’s simply a technology that escalates force on all sides.”
     No it isn’t just an escalation. Two guys with baseball bats attacking me when I have a baseball bat isn’t the same as two guys with guns when I have a gun. Not even close. I can very well end up dead either way, but only in the latter case are they at risk of ending up dead. That is even more true with 3 thugs.

194. Sebastian:
     The point both Jes & I are making is that, in fact, having a lot of guns around correlates with domestic femicide. Guns have a net negative effect on female self-defense. In what way, then, are you saying that guns are meaningful for our self-defense?

195. I’m not stating that the statistics are wrong, mere stating my methodological suspicion. Is there a good reason why the stats for intensely violent District of Colombia aren’t listed?

196. Also, you are making the classic statistical mistake of acting as if the aggregate is the same as the individual. Free speech makes for a higher percentage of publically made bad arguments than would exist without. That isn’t in fact a good argument against free speech.

197. Sebastian:
     Is there a good reason why the stats for intensely violent District of Colombia aren’t listed?
     Eh, are you talking to me? If you are, I assume it’s the same reason they aren’t listed for Alabama, Florida, and Kansas — they didn’t submit the relevant data to the FBI.

198. Yes, I am not denying that there are stories you can tell–including real ones as well as ones you just make up to support your argument–where a gun helps the defending party more than the attacker. I am saying that there are also stories where they do the reverse: I could just as easily posit that the homeowner was stronger & could have defended himself with a baseball bat at least until the cops arrived, but the pipsqueak 18 year old criminal had a gun. Unless you can provide empirical evidence that they aid more in self-defense than in armed attack as a general rule, which I’ve not seen, I’m not sure the relevance.

199. Sebastian said, I assume to me:
     Free speech makes for a higher percentage of publically made bad arguments than would exist without. That isn’t in fact a good argument against free speech.
     So, put through the parallel-case-otron, we get:
     “Free gun ownership makes for a higher number of dead women than would exist without it. That isn’t in fact a good argument against free gun ownership.”
     Is that actually what you’re saying?

200. Further still, the gun correlation doesn’t look tight. Why is Hawaii so high? 18? Why is Wyoming so low, Montana? Do you think Alaska’s position might have to do with the depression associated with lack of sunlight for 5 months? etc. etc. New York is right in the middle. Does that make sense?

201. “including real ones as well as ones you just make up to support your argument”
     Ok, I guess were done here. I’m off to volleyball.

202. What? Look, all hypotheticals are made up, I wasn’t impugning your honor. But a made up hypothetical about one situation where guns help with self defense is even less convincing than one anecdote would be.

203. Has anyone here aside from Katherine argued anything at all about the right to own a semiautomatic weapon? Or to own “any gun [one] wants?” I don’t think they have, so I’m curious about who she’s talking to.
     If I ever were going to buy a firearm for my home, it would be a good old 12 gauge double-barreled shotgun. I’m told by my friends in law enforcement that, aside from sirens, nothing gets an intruder to leave more quickly than the sound of a shotgun being racked.
     Guns facilitate armed attack, not self-defense.
     This is why, when faced with regular bombings and air raids by the Luftwaffe, the UK defended itself with giant walls and fluffy pillows.

204. “Free speech makes for a higher percentage of publically made bad arguments than would exist without. That isn’t in fact a good argument against free speech.”
     1) I don’t think the first sentence is true.
     2) “Bad arguments” are a subset of “free speech.” “# of times a gun is used in a violent attack” isn’t a subset of “# of times a gun is used in self defense”.

205. “So publishing a police officer’s home address & phone number and saying “go get ‘im” is legal, but actionable?”
     There are a couple of probably relevant category distinctions. (Actual lawyers, feel free to jump in, if you think you can be clearer.)
     There’s the fact that you can violate the law in various ways by speech or writing, but that doesn’t mean it’s legal to have a law of general prior restraint preventing those words from being uttered or published. So libel is illegal, and so is incitement to riot, but the law can’t engage in prior restraint to prevent those acts.
     So there’s what’s legal/illegal in speech, and there’s what’s can be restrained in advance: that’s one distinction.
     Another relevant distinction is civil vs. criminal. Libel is generally a civil violation, and settled by lawsuit; it’s not a matter of criminal law and the public interest, and isn’t prosecuted by the State in America.
     IANAL, let alone familiar with the relevant laws of New Jersey, but “publishing a police officer’s home address & phone number and saying “go get ‘im,” gee, frankly, I’m not sure exactly how that would be covered. I imagine it would be some kind of tort in NJ, and most anywhere else in the U.S. “Intentional emotional distress,” if nothing else. “Invasion of privacy,” quite possibly, though maybe not if the police home address is in the phone book.
     Certainly there can’t be a law against publishing that sort of thing. As I implied, there’s no such thing as “national security concerns” for one of the constitutents States of the federal union of the United States, and thus no equivalent of a “national security” exception.
     But you seem to be making the distinction in your query between a criminal offense, and a civil violation, or at least that’s my impression; “actionable” is a concern for civil cases.
     The concern about a newspaper publishing someone’s home address would be a matter of policy reflecting concern over possible civil suit, not a concern over non-existent laws of prior restraint, certainly.

206. Since I assume Sebastian has left the building, I’ll note for general interest:
     the gun correlation doesn’t look tight. Why is Hawaii so high? 18? Why is Wyoming so low, Montana?
     All of these states have low populations, so my inclination would be to toss them (and Alaska, and Vermont) out of serious consideration on the grounds of statistical insignificance.
     OTOH, the difference in ranking between Texas (#15) and New York (#30) is likely to be significant, because they are both very populous states with large numbers of murders of all kinds.

207. “Free speech makes for a higher percentage of publically made bad arguments than would exist without. That isn’t in fact a good argument against free speech.”
     1) I don’t think the first sentence is true.

     Pondering this, it seems to me that free speech makes for a higher number of publically made bad arguments than would exist without.
     That’s more or less tautological: the more restrictions on free speech that there are, hypothetically, the less speech there’s apt to be, period.
     But when talking percentages, ratios of publically made bad arguments to publically made good arguments, those would only be affected by laws that effectively restricted bad arguments more than good arguments.
     Hypothetically, that could be possible in a sufficiently totalitarian society, at least in terms of altering the percentage of logical versus fallacial logic used in public arguments, by a few percentage points, although a bit difficult, and requiring great effort.
     But for Sebastian’s statement to be true, it seems to me it would have to be more restrictive than the one he gave, in the way I indicated.
     It wouldn’t be all restrictions on free speech that would make for a lower percentage of publically made bad arguments than would exist without, but only very specific restrictions on free speech, made as part of a massive totalitarian effort.
     Just passing a law against using the color “red” in your examples, say, wouldn’t do it.

208. 1) Specific, credible death threats against individuals can be and are crimes in many jurisdictions, I think.
     2) With regard to “prior restraint”, since we don’t normally have an official censor, require gov’t approval before publication, etc. the only way it really comes up is if the gov’t: (a) seeks a court injunction preventing publication, or (b) actually seizes all the copies of the material they want to suppress or otherwise tries to physically prevent publication. And it’s usually (a), since (b) would pretty much inevitably invite litigation by the press & piss off the court.
     3) A law saying: “it’s illegal to publish x”, or more likely, “it’s illegal to do thing x” (where x can be done in the form of a newspaper ad–i.e. making death threats) isn’t really a prior restraint. It might be facially unconstitutional for other reasons, of course.
     4) In theory, the courts have held that if you couldn’t criminalize speech, you also can’t make it a tort. In practice, I think they probably regard criminal sanctions with somewhat more suspicion.

209. anyone interested in what the drafters of the 2a actually intended it to mean–leaving aside what role that intent should have today–would be well advised to look at Neil Cogan’s collection of material relevant to the drafting of the bill of rights.
     http://www.amazon.com/Complete-Bill-Rights-Debates-Sources/dp/019510322X
     there you can see the various drafts and revisions that the 2a went through before its final wording, as well as the various predecessors in state-level bills of rights on which it was modeled.
     very eye-opening.

210. I’ve been out and about all day, and this thread has evolved too much for me to draft a detailed reply to everything before I have to hit the sack, but I will pick one point to hit on right now.
     A lot is made of the fact that rights like freedom of speech are subject to ‘reasonable regulation’. And thus, so should the right to keep and bear arms.
     But what is considered a “reasonable” regulation of speech? Are ugly assault words banned? Are word arsenals (Dictionaries) regulated? Do we run background checks on people before they can own typewriters? Assume that somebody who’s buying a printing press means to print $20 bills unless they can prove otherwise?
     No. What’s regulated is speech that harms or threatens. Not just threats, but plausible threats. Extortion notes. Libel. Oh, yeah, and there’s a specific constitutional exception for copyright.
     So, I assume that ‘reasonable’ regulation of firearms would involve uses of firearms which harm or threaten harm.
     Oh, wait, those are all already illegal, aren’t they? Job done, now go away.

211. Oh, wait, those are all already illegal, aren’t they?
     yeah, but the so-called “illegality” was determined by a group of citizens acting in the name of other citizens – which i guess means it was really an illegitimate act of oppression, akin to slavery.
     down the rabbit hole we go.

212. If Brett is actually back, I’m quite curious to see his answer(s) to my question(s) at 1:44PM.

213. “I have asserted that *in my state, New Jersey* gun control is popular. I am not talking about “taking away your right to own guns”, I’m talking about issues such as licensing and mandatory training, banning armor-piercing bullets, banning automatic weapons.”
     First of all, it’s a civil liberty. You might not like that, but it still is. Licencing to exercise a civil liberty is utterly inappropriate, it’s a violation of what a civil liberty is supposed to be, it’s asking permission to do what you have a right to do.
     Second, I’m all for training. Hell, train everybody. Just don’t, (See point one.) think you’re entitled to require people to undergo training acceptable to the government before they can exercise a civil liberty.
     Third, you don’t know what you’re talking about, when it comes to armor piercing bullets. Mind, I don’t blame you for this, too much; It’s established policy for the gun control movement to be more than a little deceptive, they have to be since their true aims aren’t all that popular through most of the country. In particular, the gun control movement has repeatedly followed a tactic of saying they want to ban ‘armor piercing’ ammo, and then defining it so broadly that about the only thing that would be legal is .22 rimfire ammo, which is scarcely powerful enough to take out a squirrel.
     Finally, it’s a right to keep and bear arms, which as I’ve already related, was a technical term for what would today be called “military small arms”. If the government doesn’t want people to have a right to own machine guns, it’s gonna have to stop issuing them to it’s military. Oh, and back to deception: When the gun control movement wants to ban semi-automatic weapons, it calls them automatic. There’s a classic quote by Josh Sugarmann, head of the VPC, bragging about how clever they were to do this.
     “I’m asserting that most New Jerseyans feel that the 2ndA should permit the same degree of restriction on firearms that other Amendments permit on the press (e.g. no printing the names of juvenile arrestees) or assembly (e.g. not with alcohol).”
     No, you’re not, because the restrictions you then proceed to defend are of a completely different character from the “reasonable” restrictions on other rights.
     “Do you think that the people of my state are actually in favor of unrestricted access & sale of firearms?”
     I think some of them are, and most of those who aren’t are totally clueless about how restictied access and sales are already. And I think it doesn’t matter, because it’s a national bill of rights, and New Jersey isn’t entitled to opt out.

214. Brett: First of all, it’s a civil liberty. You might not like that, but it still is. Licencing to exercise a civil liberty is utterly inappropriate, it’s a violation of what a civil liberty is supposed to be, it’s asking permission to do what you have a right to do.
     It’s also a completely pointless civil liberty. Nothing in your comment deals with that.

215. No, it isn’t pointless. You don’t LIKE the points. You don’t AGREE with the points. That’s not the same thing.
     And I don’t have to ‘deal with that’, it’s utterly irrelevant to the point I’m trying to make here. No matter how pointless you think it is, there it is, in black and white, part of the highest law of the land. Don’t like that? Try to get it repealed.
     Do NOT try to establish the principle that explicitly guaranteed rights can be ignored if somebody in power thinks they’re pointless. It will come back to bite you, hard.

216. Brett: No, it isn’t pointless.
     No, it is pointless. If there was a point to owning guns being defined as a civil liberty, I assume someone would have come up with it sometime in the endless Second Amendment arguments. They never do. Instead, they try to equate gun ownership to the right to self-defense, and claim that what they’re really defending is the right to self-defense. Which they’re not.
     And I don’t have to ‘deal with that’, it’s utterly irrelevant to the point I’m trying to make here. No matter how pointless you think it is, there it is, in black and white, part of the highest law of the land.
     Brown M&Ms backstage. Sure.

217. My advice to you is to give up, Brett. It’s like trying to show a fundie Christian of what the existence of seasonal ice cores in the Antarctic mean.

218. Phil, my advice to you is to take it to Taking It Outside. Last time we debated this, you weren’t willing to look at the data I provided: this time you seem to be sticking to silly jibes about fundie Christians and fluffy pillows. If your only position on this is to flame me, you really need to ask one of the TIO hosts to set up a thread to do that.

219. Sorry to be late, knock yerselves out at TiO

220. Just when you think you’re out…..
     1. Jesurgislac- as Brett said, it isn’t pointless- you just don’t like the points. People on this thread have explained about how the 2nd Amendment is necessary to protect the right to self-defense, to limit the ability of the government to engage in tyranny, etc.
     2. On NJ- gun control is somewhat popular in NJ. The thing is that popularity has nothing to do with effectiveness or justice. On top of that, I’ve had some personal experiences with NJ gun law (again, I have never personally owned a gun, but I have had clients who did) that demonstrate the silliness of the whole exercise. An important element is that the way in which NJ defines “cop-killer” bullets shows a complete lack of understanding of firearms technology, just as assault weapons bans show a complete lack of understanding of firearms technology (for instance, why is a bayonet lug a feature of an “assault weapon”? How often are people bayoneted to death?). Also relevant to the popularity of gun control in NJ is that NJ was never a high gun ownership state; the guns that were owned were disproportionately owned illegally by criminals. It’s not going to be unpopular, usually, to restrict a right that people don’t use- but that’s not a justification for the restriction.
     3. The entire gun control debate relies heavily on bad economics, as I explained the other night. It assumes you can legislate something out of existence and ignores that whenever there is a demand for a product, someone will find a way to supply it- illegally or not. The people who will stop buying guns if you ban them will be the people with the sharpest demand curve- aka, law abiding gun owners. The people with the flattest demand curve, however, will continue to buy the guns- except that now they will have to buy the guns from increasingly shady sources. As I said before, ending the war on drugs would be the most effective way of ending gun violence, if that is the real goal.
     4. In response to Katherine’s claim that libertarians are just out for their own rights and don’t care about their neighbor’s- ugh. I suppose this is why someone like me is vehemently in support of gun ownership, liberalization of drug laws, gay marriage, and ending torture. Of course, I’m not sure where my own rights come into play with these things, since I don’t own or desire to own a gun, I don’t use or desire to use any currently illegal drugs, I’m a very happily married heterosexual, and as far as I know, I’m not what you would call a potential threat to security (snark).
     5. Finally, on the incorporation debate. Earlier, I expressly declined to enter this debate. I’m still not willing to do so, as the incorporation debate is a completely incoherent mess thanks to the SCOTUS. However, if it was up to me, I would not apply the 2nd Amendment against the states and local governments. I see no problem with local areas being left to handle their local issues with laws that make sense on a local level- this being the core tenet of federalism. I do, however, have a problem with the idea of states with significant gun violence problems making gun policy for states with little or no gun violence problems.

221. Phil, about automatics etc.:
     1) Brett said the 2nd Amend. guaranteed the right to be issued weapons a soldier was given. I assume he means automatics by this. If wrong, he can clarify.
     2) Beyond that, guns themselves are a particular type of weapon & a particular type of technology. They are not synonymous with self defense. You may have a constitutional right to own a shotgun but I don’t buy, and don’t even respect, the argument that you have a “human right” to own one. It is a particular weapon, which like most weapons is as susceptible to being used for violent attack as for deterrence or defense. I prefer to draw the line at shotguns instead of automatics because I think outside the context of a war automatics are harder to justify on self defense grounds–more likely to kill civilians. But the major point is that your preferred weapon, whatever it is, increases the power of the attacker to do harm as much as it increases your power to defend yourself. It is not synonymous with “self defense”, and “self defense” against a criminal is not the sort of right against gov’t oppression that the bill of rights is dealing with anyway.
     3) do you have a constitutional right to one? Quite possibly. But as a meaningful check on gov’t oppression, the second amendment became obsolete when we opted out of the militia system & opted for a giant standing army. No one is going to begin to convince me otherwise until they deal with the examples I keep citing of horrendously oppressive regimes where gun ownership is widespread.
     4) on the “it’s a civil liberty so licensing isn’t right” thing: there is a constitutionally recognized (in the case law) right to travel, & I think as a civil liberty (which again I do not think is synonymous with “constitutional right) it is far more fundamental. And yet, licensing.
     I think we’re going round in circles here, so if that doesn’t clarify things I probably won’t be back.

222. Mark: People on this thread have explained about how the 2nd Amendment is necessary to protect the right to self-defense, to limit the ability of the government to engage in tyranny
     Actually, no, they haven’t.
     People who like guns (men who like guns, as Dr Science noted) have claimed that “the right to own guns” is equal to “the right to self-defense” and thereafter have tried to claim that being indifferent to the right to own guns is identical to being indifferent to the right to self-defense, without managing to provide any evidence of their primary claim (guns=self-defense) let alone their secondary claims that being for gun-control or opposed to widespread gun ownership somehow makes you against the right to defend yourself.
     And I cannot believe that after getting on for seven years of the Bush administration anyone is even trying to claim, except as a joke, that the Second Amendment is any defense against government tyranny.

223. Brett’s point (or rather, one of Brett’s points) that the Second Amendment exists, that the right to own guns is a civil liberty given in the Bill of Rights, and that no US court or government should get to tamper with the Bill of Rights, is actually the best argument in defense of the Second Amendment that I’ve seen, even if it does make the Second Amendment basically brown M&Ms backstage… and the equivalent of the ribbons that the Houses of Parliament provide for MPs and peers to hang up their swords before they enter the respective chambers, because duels aren’t allowed inside. With the difference, of course, that respecting the tradition that MPs and peers don’t bear swords inside the chambers of government hasn’t killed anyone…

224. Last time we debated this, you weren’t willing to look at the data I provided:
     A lie. I read it and found it irrelevant.
     If your only position on this is to flame me, you really need to ask one of the TIO hosts to set up a thread to do that.
     Oh, mercy, that’s not my only position. It’s my position vis a vis you, who, if history is any guide, will simply engage in categorical declarations of what other people believe (which turn out to be wrong), assuming the conclusion, bad-faith argument, etc., etc. I’m just trying to save Brett the waste of time it will turn out to be.
     Katherine:
     On your #1, fair enough. On #2, again, fair enough — I have never touched an automatic weapon and have no strong opinions about them whatsoever, and would be as happy in a world without them as in one with. This, though — But the major point is that your preferred weapon, whatever it is, increases the power of the attacker to do harm as much as it increases your power to defend yourself — I think applies pretty equally to tasers, mace, pepper spray, or pretty much anything that can be used as a weapon, so I don’t much see its point as an argument against guns specifically as opposed to weapon-aided self-defense generally.
     This: But as a meaningful check on gov’t oppression, the second amendment became obsolete when we opted out of the militia system & opted for a giant standing army. is only relevant to the extent that our giant standing army would be against government oppression and not for it. Not a bet I’m willing to take these days.
     And on your #4, I could travel coast-to-coast across this country without a license of any kind whatsoever if I so chose — driver’s license, passport, anything at all. Not, mind you, that I oppose gun licensing, but I think this particular argument fails to the extent that — much like you are arguing about the relationship between “gun ownership” and “self-defense” — the kinds of technologies for which one needs to be licensed are not themselves the right to travel.

225. And like a dog with a yummy, yummy bone, we will now hear “brown M&M” repeated to the point of nausea whenever this topic comes up because someone thinks she’s clever. Completely absent, mind you, any positive argument or presented evidence at all defending the idea that the Second Amendment was included in the Constitution for no reason whatsoever, which is what this thesis rests on.

226. Take it outside, Phil.

227. “This: But as a meaningful check on gov’t oppression, the second amendment became obsolete when we opted out of the militia system & opted for a giant standing army. is only relevant to the extent that our giant standing army would be against government oppression and not for it. Not a bet I’m willing to take these days.”
     I wouldn’t take that bet either. I didn’t mean obsolete in the sense of “unnecessary.” I meant it in the sense of “wouldn’t do any good”.

228. Jes,
     Last time I checked, you were not hilzoy, nor Katherine, nor publius, nor Sebastian, nor any of the other hosts. As a result, your edicts for Phil to “take it outside” do not have the force of the kitten beyond it. Until such time as the kitten requests that he do so, your refrain is as much of a response as putting your fingers in your ears and saying “I can’t hear you!”

229. dtm,
     In defense of Jes, ‘Take it outside’ could be read as a title rather than an imperative. And I think it is a bit better than fingers in ears cause it acknowledges that the conversation isn’t going anywhere here.
     But to move back to the thread, I thought Mark’s summary was a nice way to nudge the discussion back on topic. Mark’s #4 is interesting to me because I remember a great essay that I can’t find that argued that being a libertarian demanded that the main issue be drug reform, and libertarian stance that soft pedals that is not really libertarian (by a real live libertarian iirc).
     This is not to dismiss any libertarian credentials that people care to display, but I do think that there are any number of faux libertarians who utilize the rhetoric of libertarianism in something like gun ownership, but shrink from the actual meat and potatoes of that world view. I think that if someone is going to deploy libertarianism for gun control, they better be prepared to deploy it for immigration, drugs, and porn, to mention three.

230. It’s not an edict, Dan: it’s an invitation.
     lj: I think that if someone is going to deploy libertarianism for gun control, they better be prepared to deploy it for immigration, drugs, and porn, to mention three.
     Also roads, schools, health, and the Internet. 😉

231. lj,
     I will disagree. Had jes been pointing Phil to a response she made at TIO, that would be different. Instead jes has basically ordered Phil to post his comments there, without having the authority to do so.

232. This is one of those threads where I tend not to participate unless I have substantial time available to stick it out (see the three days worth of comments here).
     But I have followed the thread and wanted to say that this is one of the best overall discussions on the 2nd I’ve seen in some time.
     One issue that irks me in any discussion of this nature is the classification of various weapons and the banning and attempts at banning by these classifications. The concept that a pistol grip or a bayonet lug makes one weapon more dangerous or potentially lethal than another is silly. The same goes for magazine sizes. Automatic weapons by their nature are less lethal than their semi-automatic counterparts, yet the semis are legal and the automatics are not. Up is down…
     IMO by far the most lethal individual weapon in existence today is a hunting rifle in the hands of someone who knows how to use it. They are (for the most part) bolt action. And they will never be banned in this country. Someone with a scoped and well sighted hunting rifle is far more potentially lethal than a gang-banger with an AK-47. Yet the former purchased their rifle legally with no fuss at Wal-Mart while the latter doesn’t care what you decide to ban.

233. Guns are a ludicrously obvious penis symbol.

     Sometimes, a gun is just a gun.

234. OCSteve: interesting. Could you explain why an automatic is less deadly, for the gun-ignorant among us who’ve mainly seen AK-47s in action movies?

235. Someone with a scoped and well sighted hunting rifle is far more potentially lethal than a gang-banger with an AK-47.
     i know what you’re saying, but i don’t think the average gun-related murder is caused a guy with a .30-06 calmly waiting for his target to walk into his sights so he can get that one clean shot – that takes a special kind of psychopathic determined coldbloodedness i think i probably missing in the average crime-of-passion and murderous drunken rage – the kinds of things that handguns (and autos, if they were readily available) make easy.

236. dtm,
     no worries, I just felt compelled to point out the possibility 🙂
     OCSteve
     Automatic weapons by their nature are less lethal than their semi-automatic counterparts, yet the semis are legal and the automatics are not.
     How so? I’m not sure I understand the reasoning here.
     I don’t think it is a question of the most lethal weapon in the hands of someone trained to use it, I think that gun control is to provide a monopoly of force, no matter how slim, to the police. Hence bans on cop killer ammo are cool with me, as are assault weapons. I think that is the rationale behind banning sawed-off shotguns, frex, in that a hunting rifle is not something that you can carry downtown without attracting some attention. I think there should be some line drawn that combines lethality with portability/concealbility. Concealability also seems to require stricter requirements, which I’m ok with and I don’t think all this infringes terribly on my civil rights.
     I admit, I do like living in a country where people freak out if you have a gun, cause I think that having a gun at your house if you aren’t a hunter shouldn’t be the norm. Incidentally, the requirements for a gun are mirrored by the requirements of a blade, which is why the law is called the firearm and sword law. Any blade that is over 15 cm and can be sharpened is subject to the law.

237. 15cm? I have kitchen knives longer than that.

238. Yeah, amazing, ain’t it? It is just the cutting part, not the whole thing, but it is still pretty short. Though the shortest sword that has gotten someone in trouble seems to be around 45 cm, so three times that length.

239. Japonicus:
     Thank you for the respectful comments.
     I think I can answer some of the questions about why a hunting rifle is more lethal than a machine gun (please note: I think almost all of the current machine gun regs can be justified under strict scrutiny). Machine guns are notoriously inaccurate weapons- they have a tremendous amount of recoil when they are in rapid-fire mode, and are likely to be lethal only when fired into a large group of people; even then, the inaccuracy makes lethal injury somewhat less likely for any one victim. In single-fire mode, a machine gun is still less accurate than most guns because it really isn’t designed with accuracy in mind and most machine guns are somewhat more cumbersome when it comes to aiming. A good hunting rifle, on the other hand, can be used with deadly accuracy with relatively little experience, since it is designed for accuracy, and also designed to minimize the effects of recoil on accuracy. Lest you forget, a hunting rifle was used by the DC snipers.
     As for libertarians who oppose any gun control but support the war on drugs- I wouldn’t really call them libertarians, as they are more likely to vote for someone like Mike Huckabee than Ron Paul. Porn and immigration are at best tenuously connected to the gun control debate. There are legitimate libertarian arguments against immigration, though I disagree with them- still you can be a libertarian and be in favor of sizable immigration restrictions. You cannot, however, be a libertarian and favor restrictions on porn and gambling other than legitimate age restrictions.
     Finally, on schools, roads, and health care: there are legitimate libertarian arguments for public schools (just in a somewhat different form than they currently exist) and publicly owned roads (again, in a somewhat different form), since they are true public goods. You can even be a libertarian and support a limited government health care program on public good grounds (but we are talking VERY limited).
     Fact is that just like Progressivism, Conservatism, and Populism, there are varying degrees and types of libertarianism.

240. Just to set the record straight, the DC snipers used a Bushmaster XM-15 which has a .223 round and comparable to an AR-15 (the semi-auto version of the M-16). The gun is an excellent anti-personnel weapon because the round tumbles. It would make a terrible hunting rifle, while it is very accurate, it doesn’t have the impact of a 30.06 or .308. Basically, they used a version of an assault weapon, with a flash supressor.
     The rest of your Libertarian argument your entitled to, I just don’t want to live in a nation that is led by a person that’s core beliefs are that they hate government.

241. Mark, you have a point re:
     The entire gun control debate relies heavily on bad economics…whenever there is a demand for a product, someone will find a way to supply it- illegally or not.
     But please note that guns are harder to smuggle than drugs, or even alcohol: they’re bulky, metal, and hard to make in your backyard. Also, as you note, the chief market for guns would be career criminals, not the average citizen, so the market would be a LOT smaller and might not reach the critical mass needed to create the sort of sophisticated smuggling trade we see in drugs and used to see in alcohol. So interdiction might be a lot more successful.
     This all assumes that guns are being smuggled over a national border. However, you also say:
     I do, however, have a problem with the idea of states with significant gun violence problems making gun policy for states with little or no gun violence problems.
     , which seems like a way to guarantee that effective gun-smuggling WILL happen. I actually agree that the best reading of the 2d Amendment is that it at most allows state-by-state regulation. But let’s be clear and honest: state by state proscription is nearly useless.
     I myself have a problem with states with relatively few murders ensuring that other states have more murders. I have even more of a problem if these states do this, not as a side effect of some policy that improves their own citizens lives, but because it makes their own citizens feel more manly or encourages their Red Dawn fantasies.
     Not sure how much this happens, mind you. Statistics quoted upthread seem to suggest that at least many of the more gun-happy states have a significant problem with gun violence.

242. Katherine: Could you explain why an automatic is less deadly, for the gun-ignorant among us who’ve mainly seen AK-47s in action movies?
     LJ: How so? I’m not sure I understand the reasoning here.
     Mark covered it pretty well in the above comment. Assuming you have two people intent on killing as many other people as they can, one has a hunting rifle and the other an AK-47, and each has 20 rounds of ammunition…
     When you fire a machine gun the muzzle climbs – the more rounds fired in a burst the more pronounced this gets. If you just hold down the trigger until all rounds are expended only the first few are going to be on target, most of the rest will be above the target. This can be compensated for somewhat – but it’s tough. That’s why the Army went to a 3-round burst mode – they found that firing only 3 rounds in a burst gives you the best chance of hitting what you are aiming for. Even with experience and a lot of control it’s inefficient. With a mass of people the AK-47 psycho is going to end up killing some but there will be as many non-fatal wounds or clean misses. Targeting individuals carefully but firing 3-4 rounds per victim obviously limits the number of possible victims.
     The psycho with the hunting rifle OTOH will be more likely to get 20 fatal shots. And it’s very easy to learn to be very accurate with a decent hunting rifle and a good scope.
     In terms of armor-piercing ammunition, you can simply buy more powerful hunting rifles that fire a larger bullet at higher velocities to defeat most body armor.
     As cleek noted the scenario is more the ‘psychopath goes on a killing spree’ than a crime of passion. But I don’t think that assault weapons are typically used in crimes of passion either (mostly handguns).
     I’d much rather face someone who is going to spray automatic fire in my general direction than someone with a deer rifle and a good scope.

243. I sorta guessed the answer on the hunting rifle vs. automatic weapon question, but why then did the world’s militaries switch over to automatic weapons? If you get a higher rate of fire but most of the bullets miss, what good does that do? (I wonder if the Garand would be a reasonable compromise, but of course that was replaced sometime after WWII. I don’t know how accurate the Garand was.)
     And since I’m heading off on a tangent, I’ve also never understood why English armies switched over to crude muskets in the 1500’s (I think) when the longbow was arguably more accurate and could be “fired” many times faster.

244. While OCSteve is right about the accuracy of a “machine” gun (actually with the AK-47 I think your talking about an automatic weapon, not a machine gun) versus a hunting gun. The average hunting rifle may be more accurate from a distance than an AK-47, the true frightening nature of the AK-47 is its use of a 30 shot clip, which is not available or practical for hunting rifles. You can also purchase a 75 shot round magazine.
     I would however stack an M-16 up against many, if not most, hunting rifles, since they are accurate out to around 600 yards and various sized clips that allow for lots of those three-shot bursts. The accuracy of this rifle, coupled with it being far less noisy than a deer rifle, was probably why the Bushmaster was used in the DC snipoer case.

245. why then did the world’s militaries switch over to automatic weapons
     Because they take *much* less training time.

246. “I sorta guessed the answer on the hunting rifle vs. automatic weapon question, but why then did the world’s militaries switch over to automatic weapons? If you get a higher rate of fire but most of the bullets miss, what good does that do?”
     Most of the bullets always miss.
     Traditionally, most bullets weren’t even particularly aimed. The point was just to lay down fire, and make the enemy keep their heads down; that’s what most bullets in war are traditionally used for. For one thing, when guns first came into use, you couldn’t aim what you were hitting at under the best conditions more than a few feet away. Tactics developed from that starting point.
     The rest of the answer starts to get into elementary tactics, and their evolution, which is a rather long topic.
     Basically speaking, though, since most bullets traditionally haven’t been aimed, more rapid fire was desirable than more accuracy which would rarely be applied in the first place. (The development of specialized sharpshooting teams came early, though; see the Sharpe series of novels set in the Napoleonic wars, for vivid details; we developed similar small units in the Civil War.)

247. The AK-47 on full-auto puts out 600 rounds per minute. When faced with the prospect of being surrounded, would you rather have that or a deer rifle? I think Doctor Science has a point.

248. Guns are not necessarily harder to smuggle than drugs or alcohol. In many ways they are easier, in fact- you’re not going to be able to get a drug-sniffing dog to sniff out a gun made out of common metal alloys. The AK-47’s popularity amongst rebel movements is a great example of how easy it is to smuggle a gun- the gun is cheap, and easily assembled and disassembled; it’s also extremely easy to use.
     Similarly, handguns are quite small and easy to smuggle.
     Failing to ban guns in one state is not likely to have an effect on gun control in another state. As long as guns are made, there will be a tremendous incentive to route some guns to areas where there is a high demand for those guns. If the US were to ban all firearms, for instance, except for military and police firearms, and also ban firearms production, you would still have plenty of guns getting to criminals.
     Why? Because there would be a tremendous incentive for some employee at the manufacturing plant to add a couple guns here and there to the production run off the books, or for a dealer to order a few more than he needs, or for a cop/ex-soldier to conveniently “lose” their weapon- the price for any given illegal firearm would just be too high for some people to turn down. And that says nothing about the smuggling of weapons from other countries- think about how many shipping containers come through our ports every day, compared with how many are thoroughly inspected, and you get the picture (and then factor in the potential for heavy bribing of government agents). Look at the case of South Africa, where almost all the crime guns are either smuggled in from neighboring countries or were previously reported “lost” by the police forces, and you’ll get the idea. (Please don’t try to explain how gun control has worked in South Africa- that’s another issue entirely; the point I am making is just about the source of illegal guns).
     Additionally, contrary to popular belief, the less powerful (and smaller, more easily smuggled) handguns are much more lethal than the more powerful handguns (this is also true of rifles, by the way). The reason for this is that a shot from, say, a Desert Eagle is more likely to go clean through the victim; my recollection (might be wrong on this) is also that even if the round stays in the victim’s body, the high caliber of it makes it so that it is usually relatively easy to extract. A small little range pistol on the other hand (assuming it is shot from close enough range to actually penetrate the victim) is very likely to cause serious damage to the victim, because the bullet will typically become lodged in the victim’s body; as I recall (again, might be wrong here), it’s smaller size also makes it more likely to bounce around inside the body, so there is less likely to be a clear path between the entry wound and the bullet. All of this assumes, of course, that the victim isn’t wearing body armor.
     Essentially, if you actually want to have successful gun control, you would need to get every nation in the world to ban the manufacture of small arms (which would mean they’d all have to give up their police forces and militaries- not bloody likely).

249. Rick: with the AK-47 I think your talking about an automatic weapon, not a machine gun
     True. My bad. Let’s keep actual machine guns and crew-served weapons out of this. 😉
     true frightening nature of the AK-47 is its use of a 30 shot clip, which is not available or practical for hunting rifles.
     True as well, and I think that frightening is the key word. I think that an automatic weapon is much more intimidating in general. I just don’t think that in actuality it’s more dangerous than other types of weapons.
     For the record, I don’t have any issue with banning automatic weapons or true assault weapons – I just think that it’s meaningless in terms of crime, murders, and shooting sprees. I certainly don’t need one for home defense or hunting so I don’t care if they are banned. But I don’t believe that the ban accomplishes anything at all in terms of reducing crime or murders.

250. “I just don’t think that in actuality it’s more dangerous than other types of weapons.”
     A point I declined to make above is that dangerousness, or “lethality,” depends upon circumstances.
     If I’m a thousand yards away from five of the enemy, I want a hunting rifle. If I’m five feet away from five of the enemy, I’m probably dead, but I’d prefer an automatic weapon.
     And so on. If I’m in front of a bunker, I’d rather have two hand grenades. If I have a chance, let me catch those five guys in an ambush with claymores. If I’m caught in an ambush, send me back to that automatic weapon. Etc.
     (Mind, my opinion is largely abstract, since my highest military rank was Second Class Boy Scout and Assistant Patrol Leader.)

251. Gary: Understood and I agree with you if we are talking about military applications. All my comments above are in the context of crime, murders, shooting sprees, etc.

252. I’m not one that really wants any gun banned, just clip size heavily restricted. Sure a person can come equipped with numerous clips, but in the act of say shooting up a McDonalds, if the clip only holds a maximum of 5 rounds (max for larger game hunting generally)then he has to shove 6 clips in to match the single 30-round AK-47 clip. One of th problems with the Bradey Bill was while it limited the production of large capacity clips, a manufacturer was allowed to continue to sell all of the clips that it had in inventory and manufacturers had produced a massive number prior to the date of the ban, knowing that they would get a premium price later on.

253. “But please note that guns are harder to smuggle than drugs, or even alcohol: they’re bulky, metal, and hard to make in your backyard. Also, as you note, the chief market for guns would be career criminals, not the average citizen,”
     Not much of a machinist, are we? The truth is that home manufacture of firearms is relatively easy, and an enormous number of people have both the skills and the tools at home to do it. For some of the more expensive firearms, such as .50 BMG rifles, it’s not all that uncommon for people to build their own, instead of buying, just to save money.
     Further, you’re failing to take into account the fact that a very large portion of the population would (rightly!) view any effort at civilian disarmament as utterly unconstitutional, a prelude to tyranny, and regard violating such laws as not merely morally justified, but perhaps even their civic duty.
     On the day the Supreme court rules that the 2nd amendment doesn’t guarantee an individual right, it doesn’t delegitimize the right to keep and bear arms, it delegitimizes itself.

254. “All my comments above are in the context of crime, murders, shooting sprees, etc.”
     Ah, I hadn’t caught that qualification; thanks.
     Another factor, of course, is training; obviously a good rifle is only lethal in the hands of someone practiced with it (or, at the least, with great natural talent, and knowledge of how to reload); this also applies to automatic weapons, but perhaps just a little less so. And even less for a shotgun, if you’re near a crowd.
     Not disagreeing with you; just nattering.

255. Brett: Further, you’re failing to take into account the fact that a very large portion of the population would (rightly!) view any effort at civilian disarmament as utterly unconstitutional, a prelude to tyranny, and regard violating such laws as not merely morally justified, but perhaps even their civic duty.
     Whereas government actions which are actually unconstitutional, and are actually an exercise of tyranny, are ignored?

256. “Further, you’re failing to take into account the fact that a very large portion of the population would (rightly!) view any effort at civilian disarmament as utterly unconstitutional, a prelude to tyranny, and regard violating such laws as not merely morally justified, but perhaps even their civic duty.”
     This is where that whole point about how it seems unfortunate that most of them seem entirely unconcerned when habeas corpus disappears for some, the 4th Amendment is violated, the government takes to kidnapping, disappearing, and torturing whomever it likes, and so on, tends to arise.
     Given the accusations of hypocrisy thrown at liberals for not supporting the individual rights view of the Second Amendment as strongly as they tend to support the other individual rights in the Constitition, it seems, at the least, no less hypocritical if someone claims to fervently care about Constitutional rights and only cares about the Second Amendment.
     Which is not to say that there aren’t people consistent about both. But they do seem to be a minority of both larger groups, do they not?

257. Sorry, the one we’re discussing IS actually unconstitutional; It takes a remarkable degree of sophistry to pretend otherwise.

258. Brett: “Sorry, the one we’re discussing IS actually unconstitutional; It takes a remarkable degree of sophistry to pretend otherwise.”
     Yes, that’s nice, but irrelevant to what I asked you. Do feel free to actually respond, or, an equally fine alternative, I’ll take it that you’re uninterested in responding to the question, which is certainly your privilege.

259. Gary, the comment thread is over 250 posts long; Would you mind pointing out the question you think I haven’t sufficiently addressed?

260. Brett: Would you mind pointing out the question you think I haven’t sufficiently addressed?
     If the Second Amendment is to be regarded as important because you don’t want to lose any of the civil liberties guaranteed by the Bill of Rights, why is there so little overlap between the people who get het up about any restrictions on their civil right to bear arms, and the people who protest the abridgement or removal of civil rights guaranteed by the rest of the Bill of Rights?

261. “Gary, the comment thread is over 250 posts long; Would you mind pointing out the question you think I haven’t sufficiently addressed?”
     The one at 05:14 PM, which I took your 05:32 PM, following it, to be responding to, since you didn’t quote anything else that you were responding to, which I then responded to, which you here responded to.

262. Gary, I think Brett’s 5:32 is a response to Jes’s 5:06 rather than your 5:14. Not sure though (& also interested in how he’d respond to the 5:14).

263. “Gary, I think Brett’s 5:32 is a response to Jes’s 5:06 rather than your 5:14.”
     Indeed, it was.
     “why is there so little overlap between the people who get het up about any restrictions on their civil right to bear arms, and the people who protest the abridgement or removal of civil rights guaranteed by the rest of the Bill of Rights?”
     A fair question.
     First, there’s more overlap than you might suppose. I have encountered ACLU members who actually care about the entire Bill of Rights, and plenty of NRA members, too.
     I think this is mostly a function of the leadership of the two main organizations, the ACLU and NRA.
     On the one hand, the ACLU quite officially refuses to acknowledge that the 2nd amendment guarantees a meaningful civil liberty. While it doesn’t spend a lot of resources on actively attacking the 2nd amendment, it passively backs enemies of that amendment by throwing it’s prestige behind revisionist interpretation.
     As a result, people who actually like the 2nd amendment tend not to join the ACLU, leaving the ‘public’ face of the civil rights movement an anti-gun face. Making it easier for civil libertarians who don’t really like guns to rationalize blowing off the 2nd amendment.
     On the other hand, you’ve got the NRA, which you must remember is not a general civil rights organization, but an organization dedicated to protecting one specific civil liberty. By virtue of that, it is after all going to attract a fair number of people who care primarily about the 2nd amendment, and perhaps little about the rest of the bill of Rights except as the rest of it is abused to attack gun ownership.
     But, and I think this ought to be remembered, the NRA is a LOT bigger than the ACLU. The truth of the matter is that, even if they are a minority in the NRA, there are probably more genuine civil libertarians in the NRA than in the ACLU, even if we were to give members of the latter organization a pass on the 2nd amendment, and call even the anti-gunners genuine civil libertarians.
     It’s easy to forget that most civil libertarians are not ACLU members, even as most Americans are not, regrettably, civil libertarians when their own rights are not being impacted.

264. I would guess that if you polled NRA members you would find higher support for restrictive immigration laws, limits on political asylum, restrictions on habeas corpus, allowing torture/”aggressive interrogation”, limits on criminal appeals, capital punishment, criminalizing flag burning, etc. etc. than in the population at large. Is that just a stereotype on my part?
     I would also guess–I’m even more confident about this one–that among members of Congress, there’s a positive correlation between a high NRA approval rating, and support for those policies.
     According to their websites the ACLU has 550,000 members and the NRA has 3 million. I would be very surprised if 550,000 or more of the NRA members broaddly agreed with me or the ACLU on issues involving the rights of non-U.S. citizens, or the rights of accused criminals to do anything except own a gun.

265. For example, see this speech by Wayne Lapierre, who thinks airport security personnel can identify illegal immigrants by looking at them & profile accordingly:

     but no profiling!No, we don’t want to risk offending an Islamic ex-con with two aliases and no job, paying cash for a one-way airline ticket with no luggage, whose shoes are packed with plastic explosives.
     Who’re we fooling? Terrorists fit into fairly narrow categories of gender, age, nationality and religion.
     And what about the millions of people who are in this country illegally? Just because they’re on American soil, are they entitled to the same degree of liberty and privacy as a Medal of Honor winner, or a high school cheerleader, or you, or me? No!
     I say, if anyone’s going to lose freedoms, make it the illegal aliens. Not my mother, your daughter, our pilots or war heroes. If anyone deserves a little extra scrutiny after September 11th, it ought to be a few million illegal aliens. And we shouldn’t have to x-ray, frisk and humiliate honest Americans to justify it!

266. “Is that just a stereotype on my part?”
     Wouldn’t suprise me if it was. And that’s a rather mixed bag of issues, isn’t it?
     “would be very surprised if 550,000 or more of the NRA members broadly agreed with me or the ACLU on issues involving the rights of non-U.S. citizens,”
     I definitely will grant you that, but we were talking about civil liberties, weren’t we? I’m having a hard time figuring out when “restrictive immigration laws” became a civil liberties issue.
     Oh, wait, I forgot, according to Strossen, “civil liberties” by definition consist of, and only of, whatever the ACLU cares about…

267. Yes, see, I think: (1) foreigners have civil liberties; (2) due process in the immigration courts is a civil liberties issue; (3) asylum is a civil liberties issue; (4) treatment of immigrants in prison is a civil liberties issue; (5) being adequately informed that your “no contest”, no jail time guilty plea might get you deported is a civil liberties issue; (6) parents being legally forbidden to live in the same country as their children is a civil liberties issue; (7) people being deported from the country where they’ve lived since they were under one year old is a civil liberties issue; (8) amending the 14th amendment to end birthright citizenship is a civil liberties issue.

268. (I realize that “civil liberties” are strongly associated with the Bill of Rights, but I have said over & over again that I don’t think the terms are co-extensive. Leaving aside the 2nd amendment, I’d consider the 10th amendment to be about federalism. And again, I do not think that civil liberties stop at the water’s edge or depend on U.S. citizenship.)

269. “I think: (1) foreigners have civil liberties;”
     Only in very limited measure, not being a part of “we, the people”. In particular, they don’t have any right to be here.
     “(I realize that “civil liberties” are strongly associated with the Bill of Rights, but I have said over & over again that I don’t think the terms are co-extensive.”
     I’ll agree that the Bill of Rights is not an exhaustive list of our civil liberties; Isn’t that what the 9th amendment says, after all? The problem with “not co-extensive” is that it’s meant to indicate that the ACLU is free to declare rights explicitly guaranteed in the Bill of Rights to be non-civil liberties, if it doesn’t like them.
     You lose me there.

270. Brett:

     “Gary, I think Brett’s 5:32 is a response to Jes’s 5:06 rather than your 5:14.”
     Indeed, it was.

     This is why the form is to quote enough of what one is responding to that people have a clue.
     Anyway, apparently the same response remains applicable: Yes, that’s nice, but irrelevant to what I asked you. Do feel free to actually respond, or, an equally fine alternative, I’ll take it that you’re uninterested in responding to the question, which is certainly your privilege.
     Given that this is the third time, I’m pretty much taking it as a given that you prefer to avoid the question. As I said, your privilege. But you still have an opening to actually respond, if you prefer.

271. “Only in very limited measure, not being a part of “we, the people”. In particular, they don’t have any right to be here.”
     You absolutely lose me there.
     1) even if they don’t have a constitutional right to be here, they may have a statutory be here.
     2) even if they don’t have a constitutional or statutory right to be here, they may have a moral right to be here (i.e. they are going to killed if we deport them, to take an obvious example.)
     3) even if they don’t have a constitutional right to be here, they have other constitutional rights while they are here.
     4) The government has a moral and in many case a legal obligation not to abuse its powers and deprive people of basic human rights even outside the territorial boundaries of the United States.
     WHY, Brett, do foreigners not have a moral as opposed to a legal claim* to basic civil liberties?
     *in many cases of course they DO have a legal claim.

272. Sometimes, a gun is just a gun.
     Look, Slart, I have a good deal of respect for you, but you’re going to have to prove that. Or rather, to prove that guns are *mostly* just guns. I think this whole discussion proves that men have an emotional investment in guns than goes way, way beyond their practical uses.
     This is my weapon,
     this is my gun;
     this one’s for killing,
     this one’s for fun
     You know what, guys? *I* didn’t make that up. If you’re going to claim that this argument has nothing whatsoever to do with your equipment, you’re going to have to figure out a way to prove it.
     And yes, I *am* having a particularly shrill, vehement day in which male jokes about the ubiquity of their privilege seem especially … flacid, why do you ask?

273. Gary, at 7:21, I DID respond, and in some detail. If you consider that reply non-responsive to your question, we’re just going to have to disagree with you about that.
     “WHY, Brett, do foreigners not have a moral as opposed to a legal claim* to basic civil liberties?”
     The obvious answer is that they do have such a claim. Just not to the full list, not being full members of the national community. And a great deal depends on whether they’re here legally.
     My wife is a legal resident alien, and I’d never even think to suggest she doesn’t have some civil liberties, though definitely short of the complete list. (She can’t vote, for instance.) But her ‘right’ (I’d characterize it as more of a privilege, given it’s conditional nature.) to remain in this country is clearly of a statutory nature, though she is entitled to due process in the way it’s handled. If we don’t get her green card renewed on time, she can be deported, and it wouldn’t be any kind of civil liberties violation at all to do it.

274. “Gary, at 7:21, I DID respond, and in some detail.”
     Yes, I see that subsequently you responded to Katherine, who asked essentially the same question (as did Jes).
     However, when I responded, it was in response to what you wrote in response to me, which was just “[i]ndeed, it was,” and then you went on to another topic. Thus my responding to that which you wrote in response to me.
     You wrote: “The truth of the matter is that, even if they are a minority in the NRA, there are probably more genuine civil libertarians in the NRA than in the ACLU, even if we were to give members of the latter organization a pass on the 2nd amendment, and call even the anti-gunners genuine civil libertarians.”
     I, like Katherine, am skeptical of this assertion, but the bottom line for me is that if this were so in any meaningful way, we’d have seen evidence of a major sub-grouping of the NRA announcing their opposition to torture, to the concept of American citizens being picked up anywhere in America as an “enemy combatant” and imprisoned in secret, with no legal rights, and so on. They’d have formed groups, put out press releases, held rallies, and so on.
     So if your claim is true, where’s the evidence of NRA members doing this?

275. “if this were so in any meaningful way, we’d have seen evidence of a major sub-grouping of the NRA announcing their opposition to torture, to the concept of American citizens being picked up anywhere in America as an “enemy combatant” and imprisoned in secret, with no legal rights, and so on.”
     Why would you expect this? I repeat, the NRA is a single subject lobby, it just does not, as an organization, deal with topics which have no relevance to the rights of gun owners as gun owners.
     It will fight for freedom of speech, where this is speech related to guns, or involves the freedom of gun owners to lobby or campaign for/against candidates. It will fight uncompensated seizures of guns or firing ranges.
     This doesn’t stop members from having opinions on other topics, but don’t expect them to get expressed through the agency of the NRA. That’s not what the NRA exists to do.

276. “This doesn’t stop members from having opinions on other topics, but don’t expect them to get expressed through the agency of the NRA.”
     And yet I said nothing whatever about the “agency of the NRA,” and specifically instead asked for “evidence of a major sub-grouping of the NRA announcing their opposition.”
     You say that there are all these NRA people who feel strongly about these issues: where’s the evidence of this group of people existing and acting?
     Obviously, if they don’t feel moved to act, at least half as much as they act in defense of gun rights, they don’t actually care about our other constitutional rights enough to act, and therefore, by definition, the huge group of “probably more genuine civil libertarians in the NRA than in the ACLU” that cares so much about non-2nd Amendment civil liberties enough to act to defend said civil liberties doesn’t exist.
     Invisible, silent, imperceptible, defenses of civil liberties don’t tend out to actually defend civil liberties, studies have found.
     No one said anything about them acting through the NRA except you.

277. ” If we don’t get her green card renewed on time, she can be deported, and it wouldn’t be any kind of civil liberties violation at all to do it.”
     What if she does everything right, but one day we decide we don’t like immigrants anymore? Or we don’t like people of her ethnicity, religion, with her political views, etc.? Civil liberties violation?
     I would say yes, in the broad sense of the word as “arbitrary gov’t encroachment on individual right”. You seem to be going for the legalistic def’n instead.
     Also, you are clear on illegal immigrants having some rights, right? Even if we restrict ourselves to constitutional rights that’s true.
     I’m not sure why I’m supposed to be impressed by NRA members as civil libertarians in general if the only right they care about is the right to own guns. If there’s a NEGATIVE correlation between that & support for habeas corpus, free speech, equal protection, due process, right to counsel, etc. etc. etc., it arguably supports my contention that most NRA members just want guns to be legal for reasons of recreation or self-defense, which have very little to do with a generalized opposition to the arbitrary exercise of government power.

278. Brett wrote:
     Licencing to exercise a civil liberty is utterly inappropriate, it’s a violation of what a civil liberty is supposed to be, it’s asking permission to do what you have a right to do.
     Second, I’m all for training. Hell, train everybody. Just don’t, (See point one.) think you’re entitled to require people to undergo training acceptable to the government before they can exercise a civil liberty.
     So the fact the civil liberty in question is one that is only fully exericized when you threaten someone with death, that does not tell you that maybe this civil liberty requires some well-crafted regulation to be properly practiced?
     What other civil liberty gives you the power of life and death in such a direct fashion? What other civil liberty has such a high rate of collatoral slaughter?

279. Excerpts from recent politicians’ speeches to the NRA:
     John Thune:

     “You think about, you know, some of the debates that we’ve had here in Washington, D.C., just this last week. I mean, we’ve actually had a debate in the United States Senate about allowing terrorists to have habeas corpus rights.
     I mean, think about that. And yet, at the same time, we don’t allow law-abiding Americans to be able to defend and protect themselves with this kind of legislation.

     Newt Gingrich:

     There is a worldwide effort under way by the left to strip innocent, law-abiding citizens of the right to bear arms and to coerce the United States by turning into international law a series of provisions which are a fundamental assault on the core values of the American Constitution and a fundamental assault on the core values of the Founding Fathers. This assault is largely financed by George Soros, who has spent an amazing amount of the money he’s spent in — spent — he’s earned in free society trying to undermine the very freedoms that allowed him to become wealthy.

     Rudy Giuliani:

     But in the past, we have not used those tactics against commanding generals in a time of war. It’s unthinkable that we would do that. General Petraeus — you may agree with — which I do — or you may disagree with him, but you have absolutely no right to impugn his integrity and expect us to take you seriously. And that’s precisely — (applause) — and that is precisely what MoveOn.org did when they compared his name — they did a pun on his name that said General Petraeus is “General Betray Us,” using language that evoked treason, by the way, and traitorous conduct about an American general that I think all objective, honest observers would say has far exceeded expectations for what he’s been able to achieve in Iraq over the last four or five months.
     Whether you agree with the war in Iraq or you don’t, whether you agree with the surge or you don’t, Democrats even came back from Iraq and said that he’s having more success than anybody thought. So to attack the man’s integrity and honesty and decency is, in my view, indecent. It passed a line that we should not allow American political organizations to pass.

     We’ve been through the immigration thing, so I won’t quote Tancredo.
     I don’t have the applause-o-meter for those lines, so I don’t know exactly how the members present felt about them, but politicians tailor their remarks to their audience. There were a couple of Democrats who spoke, but they were careful not to say anything controversial about any other part of the Constitution. Bill Richardson sure was not going to use his standard lines about habeas corpus, for example–just vague general talk about “our liberties”.
     So. 550,000 NRA members who care about other civil liberties? Not bloody likely.

280. I also wondered about the NRA’s position on the Cory Maye case. According to Radley Balko, “I’ve been told [the NRA] won’t get involved in the Cory Maye case because of the minuscule amount of marijuana (a burnt roach) found in Maye’s apartment.” Disputed evidence of marijuana possession does not strike me as a very good reason to stay out of a capital case that is directly relevant to the right of armed self defense. (Of course, I don’t know the ACLU got involved in that either…I guess my policy is, for defense of liberties involving guns, call the ACLU; for defense of liberties involving guns, call Radley Balko & Jim Henley. The NRA? If you don’t fit their profile of a “law abiding American” I wouldn’t bother ).

281. that is, for the defense of liberties NOT involving guns, call the ACLU.

282. This is why the usage has turned to ‘human rights’ rather than ‘civil rights’. The ACLU’s name is a bit like the NAACP in that regard.
     Unfortunately, Brett overreached I think. Trying to claim that the NRA is concerned with human rights is a bit like saying PETA is working to help the handicapped.

283. I actually think the Maye case reveals the biases of both groups. I would have thought it would be a slam dunk ACLU case, but since it involves a gun it doesn’t. I would have thought it was a slam dunk NRA case, but since they don’t want to approach ‘drugs’ with a ten foot pole, it isn’t–even though the drug angle looks pretty fake.

284. Brett didn’t claim the NRA was concerned with human rights in general. He said that its members tended to be concerned about civil rights.

285. Sebastian: He said that its members tended to be concerned about civil rights.
     I wonder how many NRA members were protesting the repeal of habeus corpus, the warrantless wiretapping, the persistent attempts by the Christian Right to enforce an established religion, the occasional attempts by schools to make children or teachers use the modern version of the Pledge of Allegience with the words “under God” in it, or indeed who protested the slam-dunk cases of Mahar Arar or Jose Padilla?

286. Sebastian, is there a clearcut dividing line between civil rights and human rights? Is it possible to be concerned with civil rights and be uninterested in human rights? With the 2nd amendment, you pretty much have a civil/non-human right, but the others, I’m not so sure.

287. “Is it possible to be concerned with civil rights and be uninterested in human rights?”
     Do you think the number of people unconcerned about ‘human’ rights is low? I think you must have a very particularized vision of human rights to think so.

288. Sebastian: Do you think the number of people unconcerned about ‘human’ rights is low? I think you must have a very particularized vision of human rights to think so.
     Actually, the question being raised seems to be: Do NRA members care even as much about other civil liberties guaranteed by the Bill of Rights, as they do about their brown M&M right to own guns? Or is there, as Katherine hypothesised, a negative correlation – that NRA members actually tend to oppose civil liberties guaranteed by the rest of the Bill of Rights?
     It would be interesting, for example, to find out if Bush’s warrantless wiretapping, a clear violation of the Bill of Rights, was in general more opposed by NRA members than by the general population, or less.

289. I’m sorry, I thought it was a straight forward question. You seem to imply that there is a clear dividing line, in that Brett could argue that the NRA supports civil rights but not human rights and I suggested that the line between civil rights and human rights is not that clear. I think the ACLU used civil rights because there wasn’t a notion of ‘human rights’ as such in 1917. I’m not sure why you feel the need to question my vision of human rights, though if you have any specific questions, I would be happy to enlighten you concerning them.

290. liberal japonicus: and I suggested that the line between civil rights and human rights is not that clear.
     True. But in some instances, you can clearly point and say “That is a civil right, guaranteed by the Bill of Rights, which the Bush administration have removed”. Warrantless wiretapping is the clearest example: the imprisonment of Jose Padilla: and I would argue that the modern version of the Pledge of Allegience, the “pro-life” movement, and the anti-marriage movement, are all examples of the Christian Right attempting to (and in many cases succeeding) impose a state religion on US citizens, a clear breach of the First Amendment. These are all human rights issues as well, but there are clear civil rights violations in all instances.

291. “With the 2nd amendment, you pretty much have a civil/non-human right, but the others, I’m not so sure.”
     What, do you think the 2nd amendment refers to the rights of guns to keep and bear humans?
     Just joking, I know what you’re getting at: “Civil” rights are your rights with respect to the government. And some of those, such as the right to vote, represent purely procedural matters which make no sense in terms of relations with entities lacking the government’s coercive power. Others, like the right to privacy, implicate basic liberties which would be relevant outside the context of a government.
     But I would say that the right to keep and bear arms is definitely in the latter list of rights; It’s as much an outgrowth of the right to life, and hence the right to the tools to defend it, as freedom of the press is an outgrowth of the right to communicate, and hence to the means of communication.
     “Trying to claim that the NRA is concerned with human rights is a bit like saying PETA is working to help the handicapped.”
     But I didn’t say that the NRA is concerned with human rights. The NRA, as an organization, is concerned only with defending one specific right. (And if you ask many members, not as principled about that right as it should be!) What I said was that there was a minority of genuine civil libertarians within the NRA, but that the NRA was so much larger than the ACLU that there were more civil libertarians in it than in the ACLU.
     It’s not much of a slam against an organization to say only a minority of it’s members are principled civil libertarians, as such people are a minority of the population at large.
     This will not translate into visible demonstrations on other civil liberties topics by NRA members, AS NRA members, for a number of reasons. Not the least of which is that the NRA leadership are rather obsessive about keeping control of inter-member communications, (To make it harder for NRA members torqued off about NRA policies to organize against the ruling clique. NRA internal politics can be very vicious.) and quite determined to exert total control over what’s done in the NRA’s name.
     But if you frequent firearms BBS’s, you’ll see there is indeed a lot of concern about the Corey Maye case, and disgust over the NRA’s refusal to get involved.

292. But I would say that the right to keep and bear arms is definitely in the latter list of rights; It’s as much an outgrowth of the right to life, and hence the right to the tools to defend it
     Only in a mirror universe. The right to bear arms is the right to kill people: it is the exact reverse of a right to life.
     It’s not much of a slam against an organization to say only a minority of it’s members are principled civil libertarians, as such people are a minority of the population at large.
     But my question was: are members of the NRA more likely to (for example) oppose the warrantless wiretapping than the population at large, or less?

293. US murders with firearms (per capita): 0.0279271 per 1,000
     UK murders with firearms (per capita): 0.00102579 per 1,000
     Let’s have no more of that “it’s a right to life” nonsense, Brett. It’s a right to kill. You can argue that in principle it’s a civil liberty in the Bill of Rights and ought to be defended on that principle, no matter that it gives the US a murder rate in a similar league with a small war, but you can’t argue that it has the slightest relationship to any “right to life”: the data says otherwise.

294. “The right to bear arms is the right to kill people: it is the exact reverse of a right to life.”
     Ah, so many defective guns, that only a tiny, tiny fraction of them ever fulfill their one, solitary, Jesurgislac proclaimed function.
     “But my question was: are members of the NRA more likely to (for example) oppose the warrantless wiretapping than the population at large, or less?”
     Does it occur to you that this is an empirical question? I don’t know that anybody has polled NRA members on the subject; The NRA certainly hasn’t polled ME on it, and since the NRA doesn’t hand out it’s membership list to pollsters to use for unapproved questions, I don’t think there are any polls on the subject.
     Though I suppose, since NRA members are well over 1 percent of the nation’s adult population, it would be feasible to do a poll of people who claim to be NRA members. (The last poll I saw like this found that about four times as many people claim to be NRA members as are actually on the membership roster.)
     Why don’t you suggest it to Gallup, instead of assuming that I have some kind of magical connection to the inner thoughts of other NRA members?

295. Jes, your understanding of the subtleties of statistical comparisons between different nations floors me yet again. You’re right, of course: The only murders that matter are those with guns, and the only differences between the UK and US are our gun laws.
     You actually think you proved something with those two numbers. How sad…

296. Brett: Ah, so many defective guns, that only a tiny, tiny fraction of them ever fulfill their one, solitary, Jesurgislac proclaimed function.
     Oh, come off it, Brett. Trying to pretend that guns are not used to kill people is kind of a stupid argument, isn’t it? (Trying to claim that I am the only person in the whole world who has ever claimed that the function of guns is to kill people is close to a flame, and I point you at TIO if you want to flame me, especially if you want to do it that stupidly.)
     Does it occur to you that this is an empirical question? I don’t know that anybody has polled NRA members on the subject; The NRA certainly hasn’t polled ME on it, and since the NRA doesn’t hand out it’s membership list to pollsters to use for unapproved questions, I don’t think there are any polls on the subject.
     So, basically, any claims that the NRA are more interested in civil liberties than the rest of the population is based on nil data, because no one knows? All anyone knows is that the NRA wants the gun industry to stay highly profitable, and that NRA members want to be able to buy guns – and that the NRA is prepared to use its gun industry funding to ensure that no legal restrictions are placed in the way of as many guns being for sale as possible, regardless of the cost in human life?
     I would say, though, that sound estimates could be done on how NRA membership correlates to the likelihood of a general support for civil rights, much as sound estimates have been done on the likelihood of pro-life women to have abortions. (That is: Catholic women tend to say they’re pro-life: but polling women who are having an abortion shows that the proportion of Catholic women who have abortions is equivalent to the proportion of Catholic women in the total number of women who are “of childbearing age” in the population as a whole.)
     If most NRA members are registered Republicans, and if polling data shows that a majority of registered Republicans are indifferent to warrantless wiretapping or strongly supportive of Bush’s claimed right to it, then it would strongly suggest that a majority of NRA members are also indifferent/supportive of warrantless wiretapping – unless the NRA could show that there is a high correlation between being an NRA member and being one of the rare Republicans who is opposed to warrantless wiretapping. It would be rather less strong than the confirmation that Catholic women are in practice pro-choice, because the only way to prove it definitely one way or another would be to ask “Are you an NRA member?” while polling.

297. “So, basically, any claims that the NRA are more interested in civil liberties than the rest of the population is based on nil data, because no one knows?”
     True, but I made no such claim.
     Jes, your comment is so laden with misconceptions and outright mistakes (Such as the idea that the NRA gets industry funding!) that it really deserves a lengthly reply. Which I can’t give it now, I’m out the door to work.
     Maybe at lunch.

298. Just joking, I know what you’re getting at:
     Well, I’m glad that someone is. To be quite honest, I’m not so exercised by civil rights qua civil rights, I’m more interested in civil rights that we would normally consider human rights, so finding out if you or Sebastian draw a line and where you draw it is necessary to try and communicate.
     I also think your attempt to draw a right to carry arms as an extension to a right to life and parallel it to press freedom falls short, because there are several countries (probably no coincidence that it is Japan and the UK, since Jes and I are giving you the most grief on this) where there is no right to carry arms, but I don’t think you can say they don’t have a right to life in those countries, whereas in places where there is no press freedom, like Burma, the freedom to communicate is pretty shitty. (though places like Singapore and Indonesia cast an interesting light on that discussion)
     I also don’t know about your NRA vs. ACLU argument. By that reasoning, there are more true civil libertarians in China because of the relative populations. And still this by itself would not indicate that the Chinese population was more supportive of civil liberties as the larger number would simply be a smaller minority.
     Nonetheless, gotten my foot stuck in the NRA debate, I don’t think that a group that doesn’t somehow aim at the civil rights that overlap with human rights (setting aside, arguendo, your equation of the right to bear arms as a human right) is going to be taken as a group interested in civil rights as it is understood by people like Katherine and me. This could be a semantic cleft, but when someone talks about the civil rights movement, I don’t think of Wayne LaPierre, but of MLK. Charleton Heston did march with MLK, but he also supported the Gun Control Act of 1968, so it is pretty clear that he moved away from his previous stances.
     Also, as a bit of crystal ball gazing, the NRA’s time has past, because there are going to be more controls on all sorts of things that can wreak havoc, and the NRA is going to be unable to accept those, so I imagine that the group will, unless it adopts a more flexible and responsive approach, slowly wither away, because its core constituency is going to be trapped by the paradox that we have to surrender freedoms to deal with terrorism, but they want to retain their freedoms to own weapons.
     But in the time it took me to type this, you and Jes have gone 3 rounds, so I guess I better make this my last one and get back to grading.

299. outright mistakes (Such as the idea that the NRA gets industry funding!)
     Why yes, the gun industry does fund the NRA: didn’t you know? What else did you expect? VPC:

     The study documents for the first time gun industry funding of NRA activities. Tax-deductible money donated by manufacturers of firearms, ammunition, and related products is funneled through the NRA’s tax-exempt sister organization, The NRA Foundation. The VPC has uncovered at the very minimum hundreds of thousands of gun-industry dollars donated to The NRA Foundation. These funds are then transferred to the NRA in the form of “grants.” The NRA then uses these “grants” to fund the Eddie Eagle program and other activities. Gun industry members who have contributed to the NRA in this way include Saturday Night Special or “junk gun” manufacturers, rifle and shotgun manufacturers, and manufacturers of ammunition and reloading equipment. A laudatory article distributed by The NRA Foundation as a promotional flyer concludes, “The Foundation is a mechanism by which the firearms industry can promote shooting sports education, cultivating the next generation of shooters. Translate that to future customers.”

     I mean, seriously, Brett: even if the NRA started out as a simon-pure organization, why would you have expected it to stay that way? It’s extremely useful to the firearms industry, and the firearms industry donates money to it. What else?

300. (Sorry: the above is a complete threadjack of the main argument, gun ownership regarded as a civil liberty, so I won’t pursue it further.)
     Brett: True, but I made no such claim.
     My impression was that you were arguing that NRA members were interested in civil liberties, rather than just that they were lovin’ them guns. If it was a mistaken impression, I apologize.

301. (I like numbered lists!)
     1. The NRA represents only about 1 out of every 20 gun owners in the US (there are about 55-60 million gun owners- I believe this number is registered gun owners only). As such they do not necessarily speak for all people concerned with gun rights- heck, I’m concerned with gun rights, and I’m not even a gun owner!
     2. The NRA has drawn criticism from gun owners as a whole and elements of its own membership for the manner in which it advocates gun rights (and doesn’t represent other civil liberties particularly well). I don’t have a citation- I’ve just seen it firsthand quite frequently.
     3. Despite all of this, it’s probably worth pointing out that the NRA did actively oppose the reauthorization of the Patriot Act, and even teamed up with the ACLU in the process. They have worked with the ACLU on a couple other issues over the years. HOWEVER, they make a point of emphasizing that they only represent gun owners when they get involved in these issues- so it may not be worth giving them too much credit here.

302. Vis a vis Jesurgislac’s 4:45am comment, NRA members probably do oppose those things when a Democrat does them, because then it means black helicopters and one world government. If a Republican does them, it’s probably only against brown people, so it’s cool.

303. Speaking of civil liberties, the Supreme Court won’t hear the el Masri case, so it is officially okay to torture people, classify the evidence, & get their lawsuits thrown out of court on grounds that it would reveal ‘state secrets’. Neat trick.

304. “I’m more interested in civil rights that we would normally consider human rights”
     I’m not sure what the distinction really is that you’re talking about here so I can’t really decide where the dividing line is.
     Are civil rights things that have to do with the interaction between individuals and their society while human rights have more to do with rights of treatment that extend from an individual to society and other individuals? Or something like that?

305. I think it’s more like: “individual rights that should be guaranteed by any decent gov’t” rather than “individual rights guaranteed by our constitution.” (Of course, I’ve said that I don’t think something has to be guaranteed in our Constitution to be a “civil right”, but it seems like there are a number of people here I’ve not convinced of that.)

306. I think Katherine gets to the distinction, and can probably discuss it with references and such, but in my IANAL view, I believe that there are certain rights that should (but sadly are not) be extended to all people regardless whether they have a passport or not. I think that a person has a right to not be imprisoned on a whim, and has a right to meet and address his accusers and the evidence that is submitted. I think that a person has a right to have someone who understands the system and will act as a advocate for the person. I think they have the right to understand the charges against them. No seizure without cause, no imprisonment without charges. These are ‘civil’ rights, but I have a hard time saying ‘but you only get these if you have the correct passport’ I also think that a person has a right to earn a living and associate with the people s/he wants to, though Brett might argue that this right exists only because the state permits it and the state can take it away if the person is illegally here. Not meaning to put bytes in yours or Brett’s keyboard, but I get the impression that some of these things, you don’t think apply to non-citizens.
     There are I think, a class of rights that devolve to people of a particular nationality. I don’t have a right to vote here in Japan, (though in some municipalities, there is talk about allowing permanent residents the right to vote in local elections) But I recognize that this is a right that has to be granted by the nation-state and so is a civil right, not a human right. On the other hand, my right to not be thrown in prison with no recourse to the court system, is not something that is granted by the legal system, but something that is inherent in the fact that I exist. Already, I hear Hilzoy padding up to explain natural law versus positive law and all that, so I better make this short, but it seems that you have a bright line between civil rights and human rights because you argue that Brett was talking about one and not the other, and I wonder where you draw the line. Treatment is an interesting way to get at the distinction, but I don’t think that the Japanese government can (in the moral sense, if they really decided to do it, I’m not sure what I would be able to do) take away all my possessions, bar me from seeing my family, not permit me to work because I carry a particular passport, so there is an interesting interaction with the legal code and what are human rights, but when you said Brett didn’t claim the NRA was concerned with human rights in general. He said that its members tended to be concerned about civil rights. it seemed that you felt that they were separable.

307. Well, there are rights that I think that any decent gov’t has to offer to its citizens, but not to noncitizens, such as the right to retain citizenship unless you voluntarily & intentionally renounce it, & the right to vote. I’d still count those as “human rights.”
     Then there’s the usage distinction we make about “civil rights” & “civil liberties”, where “civil rights” includes bans on racial discrimination by private parties–as in, the 1964 civil rights act. Frankly, all these terms are a little fuzzy.

308. Justice Joseph Story sure thought that the Second Amendment protected an individual’s right to bear arms, and he was a pretty smart fellow when it came to matters of constitutional law.

309. “Justice Joseph Story sure thought that the Second Amendment protected an individual’s right to bear arms, and he was a pretty smart fellow when it came to matters of constitutional law.”
     Like I’ve been saying, the “collective right” interpretation of the 2nd amendment is a fabrication of the 20th century gun control movement. It’s revisionist history on a par with Holocaust denial. There’s not a scrap of evidence that it had even occured to anybody prior to the 20th century, and reams of evidence that the 2nd amendment was seen as an individual right.
     It’s not a close call, some constitutional theories are just wrong.

310. “It’s revisionist history on a par with Holocaust denial”
     Can I assume that this speaks for itself & no one else but Brett is going to defend it?

311. Can we say that this thread has finally dived into Godwin territory?

312. “but when you said Brett didn’t claim the NRA was concerned with human rights in general. He said that its members tended to be concerned about civil rights.”
     But it is a sort of distinction that seems to be floating around the whole thread and I’m not really sure what it is.
     “It’s revisionist history on a par with Holocaust denial.”
     Wheeee. I’ll defend it only insofar as the historical theory of Holocaust denial has about the same basis in historical facts as the collective rights interpretation of the 2nd amendment. Which is to say, in both cases, zero. He’s absolutely correct that it never occurred to anyone in the 18th or 19th centuries that the 2nd amendment was anything other than an individual right.
     So in terms of methodology error (or methodology deception) they are both of a class. In terms of importance of the error/deception they are not.
     That lawyerly enough for ya? 😉

313. Jes–no, we can’t. There are times when it’s appropriate and reasonable to mention Nazi Germany–i.e. the discussion of “Verschärfte Vernehmung”. It’s the specific claim that disagreeing with your interpretation of the Second Amendment is comparable to Holocaust denial that’s ludicrous & offensive.

314. “I’ll defend it only insofar as the historical theory of Holocaust denial has about the same basis in historical facts as the collective rights interpretation of the 2nd amendment.”
     This is complete bullsh*t, but I now find that I don’t actually respect the views of anyone who thinks this enough to try to argue them out of it.

315. “It’s revisionist history on a par with Holocaust denial”
     And anyone who disagrees must also support aborting 3-year-olds, particularly if they use Windows, not Linux, and think Captain Picard can beat Captain Kirk.
     Everyone knows that Saddam’s WMDs were used to wipe out evidence of the 19th century “collective right” interpretation, which, incidentally, also led to the Japanese Government “comfort women” program.
     You’d all know this, if not for the Council on Foreign Relations and the Trilateral Commission.
     I blame Zionism.
     I hope the thread is on a sounder footing, now that I’ve gotten these issues out into the open.

316. Thanks Gary, that’s better. I was trying to come up with a Con Law claim that actually would be comparable to holocaust denial, (even restricting yourself to the question of the level of evidentiary support rather than the moral implications). I came up with: claiming that in writing the “Executive Power” clause, the founders intended to give the President droit du seigneur for all the maidens in the land.

317. But actually that’s not even adequate, because there’s an absence of any references one way or the other to droit du seigneur in the ratifying debates, as opposed to the huge volume of evidence that must be refuted to deny the Holocaust.

318. “This is complete bullsh*t, but I now find that I don’t actually respect the views of anyone who thinks this enough to try to argue them out of it.”
     Meaning, you’d like it to be complete bullsh*t, but since you doubt you could offer up even the slightest evidence that it is, you need an excuse for your failure to lift a finger to support your position.

319. Brett: uh huh.
     Everyone else: remember when I said? “I’m fairly neutral on guns. It’s gun nuts I don’t like.” These last few comments are Exhibit A.

320. Remember what I said? That there are nuts on both sides?
     And, prove me wrong. If I’m wrong, it should be relatively easy to cough up some evidence, ANY evidence, of support for the collective right interpretation prior to the 20th century.
     You won’t be able to do it. The collective right ‘interpretation’ is an utter fraud.

321. Is there an 18th or 19th century writer who even hinted that it wasn’t a personal right? Is there a pre-20th century treatise? Anything at all?

322. You know, I can muster a certain amount of respect for people who just don’t like the 2nd amendment from a policy standpoint, who think it’s a bad idea. There are rational arguments on both sides, evidence on both sides, and, yeah, even fraud on both sides. Really, it comes down to basic philosophy as much as it does a factual argument.
     It’s the historical revisionists who give me a pain, and after a few hundred comments, I’ve just lost my ability to play along, and pretend that the ‘collective right’ theory is a genuine attempt to figure out what the amendment means, instead of what it really is: A recent rationalization by people trying to pretend that they’re not out to violate a reasonably clear amendment to the Constitution, that just happens to prohibit their favored policy.
     Game over, you want some respect from me, cough up some evidence that you’re not parroting a lie. Surely if you’re right, there must be SOME.
     **********
     Saul Cornell, what passes for an intellectual heavyweight on the ‘collective right’ side, got into a debate with Gura, the attourney bringing the Parker/Heller case to challenge D.C.’s gun laws. He gave Cornell that exact challenge.
     http://www.nfaoa.org/documents/FederalistSocietyDebate.pdf
     Skip down to the bottom to see the best he could come up with. It wasn’t much.

323. Try the damn Wikipedia page guys, & read the WHOLE Story quote. Also read the extensive discussion during the House debates about whether the include a clause ensuring that those opposed to bearing arms for religious reasons should be specifically exempted.
     For example:

     What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

     There are similar quotes from Madison & Jefferson.
     I don’t know what “collective rights” means anymore than I really know what “states rights” means. It is about an individual civilian citizen’s right to bear arms in the militia, so that the federal gov’t will not threaten liberty by creating a standing army. But we did create a standing army, with all the risks that entails. There is no longer any such thing as a militia, & there is no true modern equivalent. An individual citizen who wants to own a particular type of gun or not pass a background check isn’t it, but neither is the national guard or the police force. It is impossible to achieve the founders’ purpose. Given that the amendment says “keep and bear arms”, given that the proscriptive part of the clause should have more weight than the part explaining its purpose, & given that I generally favor broad construction of the bill of rights, I do think it should be construed to include an individual right even though there’s no militia & the amendment is a useless relic as a meaningful protection against tyranny. But I think there is a plausible argument against that approach, and it is sure as f*ck not comparable to Holocaust denial to disagree with your interpretation of an ambiguous text based on factual assumptions that turned out to be false.
     Note also, that the a Holocaust denier has to overcome a mountain of evidence that those events actually happened. So even if there’s no clear evidence refuting the NRA view, you would have to produce evidence equivalent to the documents, corpses, photographs, gas chambers, etc. etc. IN SUPPORT OF THE NRA view before you even thought of invoking the comparison. Which you can’t do, because the debates don’t neatly support the modern gun-control-opponent view any better than they neatly support the modern gun-control-supporter view, because they are based on factual assumptions & predictions that turned out to be completely false.
     This latest exchange, by the way, is what’s wrong with the posting rules. Sometimes curses personal insults are really the only appropriate response.

324. “It is about an individual civilian citizen’s right to bear arms in the militia,”
     No, it’s about an individual civilian’s right to own and bear suitable arms, so that a pool of armed citizens will exist from which a militia may be raised, even if a standing army were raised, and the militia disbanded.
     First, there is no right to serve in the militia. If there were, how could it have been disbanded? For that matter, if serving in the militia were a right, the government couldn’t have passed, almost immediately, a “Militia act” stating who was and wasn’t to be enrolled in the militia. Anybody who wanted would be entitled to be in it.
     You assert that it’s a right to bear arms in the militia, and then immediately turn around and permit that right to be rendered moot. Did you actually think about what you were writing before you hit “post”?

325. I shudder to think of the amount of sleep Katherine will lose tonight, and each night forever after, if she does not gain the respect of Brett Bellmore.
     IMNSHO, Katherine has done more for the cause of civil and human rights on this blog alone than the NRA has done for its entire existence, so I will parcel my respect accordingly.

326. Thanks Phil.
     I will try to remember that: (1) neither Brett nor the NRA represents all gun owners or gun control opponents; (2) Spite is a not a good reason to favor any interpretation of any part of the constitution, no matter how tempting it might be.

327. I’ll repeat this question, in case Katherine missed it: She says the 2nd amendment guarantees our right to bear arms in the militia. If that were so, how could the militia be constitutionally disbanded?
     Why should anyone else take your ‘interpretation’ of the 2nd amendment seriously, if you yourself don’t?

328. It would be an odd militia right to create it such it that it could be defeated by just deciding to not have a militia. If we accept that purpose of the 2nd amendment is to stop standing armies, isn’t that an argument against the standing army rather than the 2nd amendment?
     It says far more about the perverse state of Constitutional jurisprudence that the collective rights interpretation is not only considered vaguely colorable—but in fact seriously considered by any real lawyer—than it does about the amendment itself.
     You have to believe that nearly every lawyer, judge, or legislator for almost 175 years was so utterly confused about the amendment that they got it almost 180 degrees wrong. That this anti-amendment understanding persisted for 175 years until finally someone figured it out is shocking.
     Yes, modern jurisprudence is so wacky that it would think that is possible. That is a flaw in modern jurisprudence. But allowing for that shouldn’t give you the slightest bit of confidence that any Constitutional ‘right’ is even remotely protected.

329. Have you ever read Federalist No. 29?
     The question doesn’t even make sense. Militia means something like: the body of adult white male citizens, capable of military service & trained enough to use weapons properly, whom the governor or president will call into military service in defense of the state or the country when the need arises, so you don’t need to rely on a centralized standing army.
     You can argue that it’s analagous to “the nat’l guard”; you can argue that it’s analagous to “all adult males eligible for military service.” But neither is really a perfect analogy–the national guard is too formalized & centralized & too small a % of citizens to qualify; whereas “adult males” eliminates the “organized & trained enough to be capable of being called into military service” element entirely.

330. Of course I’ve read Federalist 29; Don’t you know every gun nut has a copy of the federalist papers in his library, right next to Storey’s commentaries on the Constitution? You can buy them on discount through the NRA. Though I got mine through /www.laissezfaire.org
     But, as you’re doubtless aware, the Bill of Rights isn’t fundamentally a Federalist document, it’s concession to the Anti-Federalists, to win their support for the Constitution. It addresses anti-federalist concerns, not federalist ones.
     IOW, don’t go to Hamilton for the meaning of the 2nd amendment; If he’d had his way, there wouldn’t have been one.
     It keeps coming back to a discussion of who’s in the militia, and how the militia can be regulated, and the militia this, and the militia that… All a total red herring: It’s the right of the People, after all, not of the militia.

331. Since the 2nd A. is subject to judicial review, let’s see what the courts have said.
     First, a link to findlaw’s article on the Second Amendment.
     US v. Miller, 307 US 174 (1939): absent evidence that shotgun less than 18 inches long has any reasonable relationship to the preservation or efficiency of a well regulated militia, a federal criminal violation for tranporting such a shotgun in interstate commerce without paying the tax may proceed.
     did the Sup Ct see the 2nd A protecting an individual right or a collective right? Most writers say collective, but it’s more accurate to say that the issue wasn’t really considered. I think the better interpretation is that the Court strictly interpreted the term “arms” to be associated with military weaponry.
     Hickman v. Block 81 F.3d 98 (9th Cir 1996): in an opinion agreeing with three other circuits (6th, 1st and 4th) that 2nd A protects a collective right, court held that an individual denied a gun license cannot use 2nd A to obtain standing to challenge decision. The broader holding is that the 2nd A. guarantees the rights of states to maintain an armed militia.
     Silveira v. Lockyer (9th Cir 2003) a lengthy decision collecting cases and history on meaning of 2nd A, and finding in favor of a modified version of the collective view. yes, it’s the Ninth Circuit. But note that there are citations to cases from virtually every circuit in support of the court’s decision.
     Given Brett’s statement about “utter fraud”, it’s pretty funny to note the opinion quoting Warren Burger that the individual right theory is “one of the greatest pieces of fraud” he ever saw. Burger, not exactly a blushing liberal, saw the purpose of the 2nd A. to ensure the maintenance of state armies.
     Now, reasonable people may disagree about the nature of the right and the manner in which the right is to be protected by the courts. But calling the work of learned Ninth Circuit justices a “fraud” is just wrong.
     Personally, I’m damn tired of people showing such contempt for important government institutions. If any of you are so sure you can do a better job at such a critical position, then go get it. Otherwise, show some respect.

332. ah nuts, I forgot to put in the holding of Silveira.
     “we believe that the most plausible construction of the Second Amendment is that it seeks to ensure the existence of effective state militias in which the people may exercise their right to bear arms, and forbids the federal government to interfere with such exercise”
     To those who defend the individualist position, do I have the right to carry a cavalry sword on the New York subway? Does the 2nd A. prohibit the desire of the NYPD to regulate that conduct?

333. To those who defend the individualist position, do I have the right to carry a cavalry sword on the New York subway? Does the 2nd A. prohibit the desire of the NYPD to regulate that conduct?
     Well that’s just silly. The clear answer is, and I quote, “9/11 9/11 9/11 9/11 9/11 9/11 9/11.”
     And by “9/11” I mean Denny’s Grand Slam Breakfast, which sells for that much in certain parts of Tokyo.

334. IOW, don’t go to Hamilton for the meaning of the 2nd amendment; If he’d had his way, there wouldn’t have been one.
     It keeps coming back to a discussion of who’s in the militia, and how the militia can be regulated, and the militia this, and the militia that… All a total red herring: It’s the right of the People, after all, not of the militia.

     So your advice is: ignore the Federalist papers. Alexander Hamilton? Ignore him!
     But Brett Bellmore: he can steer you right, and away from that nasty Alexander Hamilton, who had no clue what the writers of the Constitution were up to.
     All that stuff in the Federalist Papers about “the militia”? Irrelevant distraction! Total red herring! Pay it no mind!
     Am I getting you wrong? If so, apologies.

335. No, I don’t think you should ignore Hamilton. I think you should keep in mind that there were at least two factions, the federalists and the anti-federalists. The Constitution is a federalist document, the Bill of Rights a sop to the anti-federalists to get them to buy in.
     Hamilton didn’t want a Bill of Rights. That being the case, why rely on him for the philosophy behind any part of it?
     And, you should recall that the Federalist papers were an effort to sell the public on the Constitution, not the Bill of Rights. THAT came later.
     So, if you want to understand the 2nd amendment, you want to look at what anti-federalists had to say. And, at a minimum, you should at least look at things which were written about the 2nd amendment, not just the constitution it was adopted to change.

336. So, if you want to understand the 2nd amendment, you want to look at what anti-federalists had to say.
     and the fact that this group’s writings supports Mr.B’s viewpoint is entirely coincidental.
     or not.
     ya know, it’s arguments like this that make me bang my head against the desk when people talk about originalism. Whose? The Constitution is a compromise document. What possible neutral basis is there to select one group of writings over another? And given that the Federalists actually carried the day, you’d think that — from a neutral basis — Federalist writings should carry more weight.

337. “But, as you’re doubtless aware, the Bill of Rights isn’t fundamentally a Federalist document, it’s concession to the Anti-Federalists, to win their support for the Constitution. It addresses anti-federalist concerns, not federalist ones.”
     As you’re doubtless aware, James Madison was one of the authors of the Federalist papers, and of the bill of rights. I assume you’re not arguing he was opposed to the Bill of Rights?
     Or maybe you’re talking about the Federalist party? But that didn’t exist until later. Or maybe you mean we should just disregard Hamilton, not Madison? Anyway, it’s irrelevant. The concept of the militia as a less formal, state or locally organized force of adult males eligible for military service, as opposed to a dangerous standing army, recurs throughout the historical material.
     Thomas Jefferson, writing to James Madison:
     George Mason, Virginia ratifying debates:

     There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army. The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless–by disarming them

     There’s also a well known Mason quote equating the militia to “the body of the people”…the better argument isn’t that the militia v. standing army stuff is irrelevant, but that it implies a right for adults to own their own weapons, & the national guard has gotten too far away from what the founders had in mind to really count as the same thing. See Eugene Volokh for this argument. This is plausible enough that, like I said above, when you combine it with the reference to “keep”ing as well as bearing arms, & a general rule in favor of broad interpretation of individual rights provisions, I come down in favor of an individual right to own weapons that is nevertheless subject to regulation based on the words “well regulated” & the other clauses about regulating the militia. But as far as individual gun ownership actually fulfilling the salient PURPOSE of the amendment, I don’t think it’s possible anymore. I think that those concerns would be better addressed by worrying about, i.e., our recent fondness for mercenaries than about the issues the NRA focuses on. And comparing your political opponents to holocaust deniers, when you don’t seem to have a particularly firm grasp on the basic historical materials yourself, remains really really really stupid & offensive.

338. All I can say is, I think it’s time to go buy some guns. Long guns, with high-energy loads.
     And then I think I’ll buy me a ’70s vintage Corvette, and possibly a skyscraper or two.

339. “You can argue that it’s analagous to “the nat’l guard”; you can argue that it’s analagous to “all adult males eligible for military service.” But neither is really a perfect analogy–the national guard is too formalized & centralized & too small a % of citizens to qualify; whereas “adult males” eliminates the “organized & trained enough to be capable of being called into military service” element entirely.”
     This shows very little attention to the history of what the militia was in most states. It was a list of men compiled by someone in the state. Just a list. These men had their own guns, which they were well trained in ON THEIR OWN. The organization consisted mostly of putting and ‘SGT’ in front of one of the more respected guys names on the list. In a few states, it was slightly more than that, a bit of training every couple of years, but that’s just about it–and the minimum for states was much less.
     You can’t turn your whole argument about it being a ‘militia right’ on training and organization without looking in to that.
     And what precisely are these quotes showing that is inconsistent with an individual right to bear arms? There is lots of talk about the evils of a standing army.
     Of course the right to bear arms can be regulated. Free speech can be regulated. The press can be regulated. Just not in ways that are inconsistent with their purposes. Which is to say that none of the three can be regulated very much. You can’t use the milita language to say “well they aren’t that useful any more so the right goes away.” The political use of 9/11 to talk about expediency in ‘interviewing’ suspects ought to have taught us all better than that.

340. “And comparing your political opponents to holocaust deniers, when you don’t seem to have a particularly firm grasp on the basic historical materials yourself, remains really really really stupid & offensive.”
     You don’t seem to take the historical materials all that seriously–at least not in an evenhanded way. If we took your approach to the Federalist papers on free speech and the press, we could make arguments against all sorts of speech and printing on the basis of the fact that they don’t contribute to the political debate. You wouldn’t want your arguments to be applied to any of the amendments that you actually like.

341. Well, as I KEEP SAYING, I think there is an individual right subject to regulation. I just don’t think disagreeing with your interpretation of the historical materials is equivalent to Holocaust denial. We would obviously disagree about the scope of permissible regulation, as I maintain that the original purpose cannot be accomplished.
     You’ve always had this charming combination of: (1) not actually knowing Con Law very well; (2) being incapable of contemplating that people who disagree with you about it can be sincere. But the holocaust denial thing is a new low, & if you’re not going to retract it, I’m going to conclude, as I should have a long time ago, that you are not someone worth arguing about at these issues.

342. I can’t even retract it. I didn’t say it. And you are conflating the arguments against the 2nd amendment as if they were all of a piece and as if they were all being made BY YOU. Heaven help you if you ever had to argue with Jesurgislac on a regular basis.
     Saying that it gave a collective right, then making a super-restrictive interpretation of militia, noticing that super-restrictive interpretation of milita doesn’t exist any more, and then concluding that means that guns can be outlawed on an individual basis is exactly the kind of methodology that holocaust deniers use. They employ small deceptions at each step and end up at big fat whoppers.
     No one here has accused YOU of that. Or at least I haven’t. But surely you aren’t going to deny that prominent members of gun control lobbies do in fact do that? Their STATED desire is outlawing guns for citizens. The 2nd amendment may be ‘a’ collective right, but it certainly is not anything like the collective ‘right’ actually being peddled. That is what was being attacked. And the fact that so many people want to defend that is what Brett finds so irritating. THAT really is intellectually and historically indefensible. The fact that you could choose other levels of abstraction for ‘collective right’ which actually gives some small bit of force to the amendment is a testament to their successful propaganda in mixing up all the terms of the argument. But you should be very clear that you are choosing OTHER levels of abstraction from the ones they are actually using. And yes I know that YOU believe it is an individual right. But of those who don’t, prominent ones use the term ‘collective right’ in such a way as to make the amendment a blank.
     And I understand the Con Law quite well, I just don’t buy as much of the crap and hand-waving in it as you seem to want. Just because people, including Supreme Court justices, say something doesn’t make it true. Recent Constitutional law has had a heavy element of taking very clear understandings and pretending that they aren’t well understood because it is politically convenient. The 2nd and 8th amendments have been especially targeted for that.
     You seem to think that YOUR theories of con-law are self-limiting in obvious ways that don’t need to be explained (that of course extension ‘X’ wouldn’t happen because you trust judges to think like you do or something). You seem to think that the theories of your debating partners don’t have that virtue–that they will always slip to the furthest possible extension of the argument. I don’t mind hashing it out to that extreme with my arguments because I tend to agree that the institutions are rarely self limiting and tend toward following nasty rationales to nasty conclusions. But I don’t think that just about MY theories, I think that about both of our theories. You are willing to take MY theories to extreme ends, but are unwilling to put yours to similar tests.
     I’m not interested in a framework where you get to use certain types of arguments for disfavored rights while you use stricter arguments for favored rights. That isn’t what a Constitution is about. You would be HORRIFIED if we were to try to use this style of argument against rights you care about.
     Sketched out sample:
     Habeas corpus–is in the restrictions on legislative power, therefore the president can ignore it.
     First Amendment–we could quote Federalist papers about the importance of free speech for political discourse and use that to bad non-political speech. (Of course this is a silly example, since actual Congressmen go much further and want to ban political speech).
     We could get use the stupid argument about “it gives the right to muskets” and apply that to allowing only 19th century printing presses. Wheeee.
     Your arguments about the 2nd amendment are almost the direct inverse of how you want to treat the 4th. Is it ok to argue (as some prosecutors do) that with growing technology fewer searches are ‘unreasonable’ because they don’t involve as much physical intrusiveness. (Yes, I know you’ll say that I don’t understand Con law well enough because the Supreme Court hasn’t bought that argument. But that isn’t my lack of understanding about the precedent, it is your lack of understanding about what I’m pointing out–which may very well be bad communication on my part. It isn’t my lack of knowledge about what the Court ‘says’. It is my lack of acceptance about whether or not whether or not they intend for their rationales to be taken seriously.) If the methodology espoused as legitmate for the 2nd amendment were used on all of them, the Constitution would be pretty much worthless. We both agree that would be a bad outcome.

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