Gun Control and the 2nd Amendment

[nygreenguy]

Fresh Air on NPR had a very interesting story about gun control and the 2nd amendment.

Spitzer says the original interpretation of the Second Amendment was not controversial in the way it has become politicized in the 20th century — and the debate about whether the Second Amendment protected only militia service or whether it also protected the personal right to own guns is a relatively recent one.

"As a matter of history, we didn't really see anything like the individual point of view emerge until the 20th century," he says. "That doesn't mean individuals didn't own guns or didn't think gun ownership was an important thing — of course they did — but the chief purpose that is cited for the individual ownership of guns is personal protection — from predators, from criminals or from marauding Indians or whatever threats might arise — but you didn't need the Second Amendment to ensure that civilians would have the right to defend themselves or to own a gun to defend themselves."

The modern debate about individual rights pertaining to guns, he says, began in the aftermath of Congress' enactment of the Gun Control Act of 1968, which attempted to control crime in the aftermath of the assassinations of John F. Kennedy, Martin Luther King Jr. and Robert Kennedy.

"In the 1970s, you see the Second Amendment rhetoric escalate dramatically as an argument against stronger gun laws and to identify gun ownership with American values and historical values," he says. "You find this increasingly heavy emphasis on Second Amendment rights and Constitutional rhetoric as part of the argument against enacting stronger gun laws."

"The burden was placed on each militia-eligible man to obtain firearms, to keep them in good working order and to bring them to militia service at such time when they were called up. In fact, Congress enacted a law in 1792 which required militiamen to have a working musket. ... That law was widely ignored, but it underscored the fact that the government didn't have the resources or ability to arm militia citizens, and so the burden fell on the [citizens]."

What is also interesting about this interview where they talked about Scalia, who supported, an went against precedence, the idea the 2nd amendment was for personal protection. What is interesting about this is how Scalia always advocates for a literalist interpretation of the law, in which personal ownership is no where mentioned.

Should the 2nd amendment include the right to own guns? Can this be justified from a literalist perspective? Can this be justified at all? Do we even need this amendment anymore?

[McCulloch]

Do we even need this amendment anymore?

I live in a country that does not have any kind of constitutional protection for the possession of weapons, so I'll only speak to the final question in the OP. No, you don't need this amendment. We do quite well, thank you, without it. Our biggest problem with non-hunting weaponry, is the ease by which they cross our rather long border with our gun-toting neighbors to the south.

However, since this is a forum about Religion and Politics, we might interject some reflection of the religious values as they relate to this topic. Do the teachings of the New Testament support the idea of an armed citizenry? How can the operation of hand guns or assault rifles be reconciled with the preaching of Jesus? Just askin'.

[cnorman18]

Well, as you can see from the Google link, that position is not hard to find.

yeah, but a search is biased. You can search for any random thing and get thousands of hits and that can make it appear to be prevalent.

I beg to differ; a search is NOT biased; it shows ALL the references. It may appear to exaggerate the prevalence of a view, but that’s easily examined by simply looking at the links. There are blogs devoted to the subject and any number of fora where that view is promulgated, and there are news reports as well that confirm that there are people in the media and politics who hold it.

For instance; From one of the links, we see that MSNBC commentator Lawrence O’Donnell admits that he wants to "ban all guns in America" The quote is accurate and appears all over the Web. There's even a video. He's not alone.

I'm not saying the view is common; my only point is that that view is neither nonexistent nor insignificant. In any case, how prevalent the view is is beside the point of its constitutionality. An argumentum ad populum in reverse -- "not many people believe it, so it doesn't matter" -- isn't any less a logical fallacy than the other kind.

But then the liberals do it too, with “Under God� in the pledge and public Nativity scenes (“They’re a Christian Taliban trying to institute a theocratic dictatorship�), reasonable restrictions on abortion, reasonable doubts about anthropogenic global warming, political correctness of all kinds, and, similarly, God knows what else.

I can agree with a few of these outside of global warming which is an objective science ad abortion where we really do have politicians ad many of them actively trying to supress womens reproductive rights including access to birth control

Those are separate debates, and I'm not arguing either one of them; my point is that the existence of nutty or extremist arguments doesn't nullify reasonable ones. It is a fact that not all questioning of global warming comes from nutcases. I happen, by sheer coincidence, to be reading Michael Crichton's State of Fear to my client; it has a good bit to say about responsible and serious scientific doubts about that idea, based on sound data. That data, and those opinions, are not hard to find. And where abortion is concerned, I'm not talking about nutcases there, either, but about reasonable and moderate objections to, say, late-term live birth abortions and the casual use of abortion as a first-choice method of birth control. I'm not arguing either issue here; I'm just saying that to imply that ALL opposition to those ideas is either nutty or extremism is simply a falsehood. Same with this issue.

There are nutcases on every issue under the sun, and on both sides of every one of them. The fact that they exist doesn't discredit reasonable positions on either side. The statements you make above are accurate enough, but in relation to my point, they amount to a non sequitur. The fact that the Westboro Baptist Church exists is not a good argument for abrogating the First Amendment, either.

Well, ignoring the use of the pejorative term “pretending� to characterize a reasonable and good-faith difference of opinion,

as soon as they can show some evidence to support their claim I'll stop usog the word pretend

I HAVE presented that evidence, or more properly logical arguments, in my last two posts, and you have yet to directly respond to it.

if there is no constitutional right to own guns, what does the Second Amendment mean? You have deleted all my arguments on the subject of the nature and purpose of the Bill of Rights; perhaps you could debate those arguments instead.

it was, as it states, about having a militia to fight. The author talked about it in the interview.

No, it wasn't; the introductory "militia" phrase was supporting the main clause of the sentence, which was a direct statement that the people's right to keep and bear arms shall not be infringed. It was not a qualification or a limitation; it was a reason for that unqualified assertion of a right. Again, the Federalist Papers and the writings of other contemporary legal authorities bear this out. Would you like detailed quotations from them?

The author of your quote was not among the authors of the Bill of Rights, and his opinion is worth no more than mine or yours. He doesn't respond to this argument either:

Given that ALL of the ten Amendments in the Bill of Rights are about guaranteeing the rights to the people and restricting the rights of the Government to infringe upon them, which is the exact language of the Second, what else can it mean?

The “well-ordered militia� clause is well explained in the Federalist Papers, and it does NOT imply restricting the right of gun ownership to an officially constituted and organized National Guard. Again, the idea that only the Government or its agents should be armed would have astonished the Founders, as it astonishes me now.

The burden was placed on each militia-eligible man to obtain firearms, to keep them in good working order and to bring them to militia service at such time when they were called up. In fact, Congress enacted a law in 1792 which required militiamen to have a working musket. ... That law was widely ignored, but it underscored the fact that the government didn't have the resources or ability to arm militia citizens, and so the burden fell on the [citizens]."

That would seem to imply that the Second Amendment requires or places a burden upon people to obtain firearms. Does that sound sensible to you? Does that support your position?

NONE of the Amendments places a burden upon anyone to obtain anything or do anything with it. They recognize RIGHTS, not REQUIREMENTS. The second says that the right to keep and bear arms shall not be infringed. That carries no such implication, which would be directly counter to the idea that people have no right to own guns anyway. Even if that WERE the meaning of the Amendment, how does "The people are responsible for obtaining their own guns" NOT inarguably subsume the right to do so?

From the author. The point is the second amendment has nothing to do with personal ownership. Nothing. There was no need for an amendment. People always had guns. No one here is making the argument for banning anything, rather that you can't use the 2nd amendment as a constitutional defense for gun ownership.

One more time; if saying that there is no constitutional right to own guns isn't about making it OK to prohibit them, what IS it about? Law is NEVER about mere theoreticals; it's about practical application. What other practical application is there for the nonexistence of that individual right other than the power to abrogate it?

Even more to the point: Once more, EVERY ONE of the Amendments in the Bill of Rights is about guaranteeing rights to the people and RESTRICTING the rights of the Government. That is a matter of FACT, not of pretending or extremism, either. If the Second Amendment is an exception, what DOES it mean? You still haven't explained what the Second Amendment was or could be INTENDED TO DO, if not to guarantee the right of the people to own firearms. If that isn't what it means, why on Earth is it there? What right does it guarantee, if not that one?

[cnorman18]

Do we even need this amendment anymore?

I live in a country that does not have any kind of constitutional protection for the possession of weapons, so I'll only speak to the final question in the OP. No, you don't need this amendment. We do quite well, thank you, without it. Our biggest problem with non-hunting weaponry, is the ease by which they cross our rather long border with our gun-toting neighbors to the south.

It would appear that some of your fellow citizens disagree. This is from the website of the National Firearms Association (a Canadian pro-gun organization):

Protecting the lawful citizen
From the National Post
Article reposted with permission.

January 25, 2011 – 7:12 am

Shoplifters. Burglars. Home invaders. All too often, they are deemed “victims� of the very people they attack: peaceful law-abiding citizens, many quite literally minding their own business.

From store-owner David Chen’s attempts to fight shoplifters, to Port Colborne, Ont. home-owner Ian Thomson’s attempts to fight off arsonists, courts and the police treat many Canadians who defend themselves no better than the thugs who would do harm to their persons or property. Over time, this attitude has eroded Canadians’ sense of personal responsibility for their own security — or made them too fearful of the consequences to act on it.
Thomson’s plight speaks eloquently to this bleak truth. Last August, three masked men pelted Thomson’s rural Ontario home with at least six flaming Molotov cocktails while he was sleeping inside. Thomson, who legally owned handguns, stepped out and fired several shots, driving off the attackers without harming them. He notified police of the incident and turned over surveillance film from security cameras installed around his home. The police arrested two men … and then arrested Thomson as well, for firearm-related offences. The Crown is seeking jail time.

In 1995, Ottawa resident James Morrow endured an even worse ordeal. A man with whom Morrow had a business dispute kicked in his apartment building’s door in a drunken rage. The man proceeded to Morrow’s unit, where he claimed he had a gun and was there to “blow [Morrow’s] head off.� Morrow immediately called 911 and spent a harrowing nine minutes on the telephone with the operator, during which time police failed to arrive. The intruder finally smashed down the door and entered his home, whereupon Morrow, also a legal handgun owner, shot him dead. Morrow was charged with murder; his court battle lasted two-and-half-years, despite being a textbook example of a legitimate use of force according to the judge dismissed the charges against him.

The cases of Thomson and Morrow illustrate the nature of such confrontations. Faced with an imminent and grave threat to their lives, with nary a cop in sight, what other options did these men have? Had they not acted in self-defence, both might well be dead.

In some cases, the police not only fail to show up to calls from citizens, but make it plain that they have no intention of protecting them or their property.

That was the situation facing New Brunswick resident Lawrence Manzer. In March of 2010, when his neighbour discovered three intruders in his backyard at 2:30 a.m., he phoned Manzer, who stepped on to his porch holding an unloaded shotgun. Manzer and his neighbour had suffered repeated acts of vandalism on their properties before this confrontation; previously, the police had shown themselves uninterested in responding to such minor crimes. Yet this time, the police acted — arresting Manzer for threatening the public peace. His case remains before the courts.

On a broader scale, there also is the disgraceful abandonment of the people of Caledonia by the Ontario Provincial Police (OPP). Since 2006, the residents of this Ontario town have faced threats, intimidation and outright assault at the hands of natives enraged by a land claim dispute involving a housing development. Instead of protecting the terrorized homeowners, the OPP refused to intervene lest they further “inflame� the situation.

And of course, there is the case of Toronto store-owner David Chen. After suffering daily harassment by shoplifters and manifest indifference by the police, in May 2009 Chen finally made a citizens’ arrest of one of the most notorious repeat offenders. Instead of thanking him for doing their job, police charged Chen with assault and forcible confinement. Acquitted of both counts last October, his actions may prove a tipping point. Last week, the federal Conservatives announced that they would introduce legislation to change the rules for citizens’ arrests, to ensure other well-meaning individuals do not face a repeat of the Chen fiasco.

Related
National Post series: The death of personal responsibility

Taking the law into one’s own hands isn’t the answer, some will say; doing so is not only dangerous but absolves the police of their responsibility to protect the public. But the reality is that the police cannot be everywhere and protect everyone, even when they choose to respond to a call. Even in major cities like Vancouver and Ottawa, the police response time to 911 calls averages about 10 minutes, an eternity for a person facing a life-or-death situation.

The right of Canadians to safeguard themselves, their families and their property is rooted in our common-law tradition, and clearly laid out in the Criminal Code. This includes the right to use force when “under reasonable apprehension of death or grievous bodily harm.� The Code also specifies that “Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.�

Instead of being hit with a flurry of charges, victims who defeat their attackers should get a citation for bravery. We need more Ian Thomsons, David Morrows, Lawrence Manzers and David Chens. Only by letting individual citizens protect themselves with reasonable force without fear of legal consequence can the law be put back on the side of the lawful citizen.

However, since this is a forum about Religion and Politics, we might interject some reflection of the religious values as they relate to this topic. Do the teachings of the New Testament support the idea of an armed citizenry? How can the operation of hand guns or assault rifles be reconciled with the preaching of Jesus? Just askin'.

I don't much care; I'm a Jew. "Turn the other cheek" is not a tenet of my religion, and I would regard applying that principle to the civil or criminal law as an improper violation of the separation of Church and State (Does Canadian law recognize that principle?).

The Talmud says, "If you know that a man is on his way to kill you, go and meet him on the way -- and kill him first."

[McCulloch]

In Canada, what we perceive to be the right wing has a voice represented by the National Post. And, yes, there is a pro gun organization. The National Firearms Association in Canada has not the visibility, support or influence of the the NRA in the USA. More of the debate about gun control in Canada recently has been about the cost overruns and inefficiency of the long gun registry than about the principle of an unregulated armed citizenry. Our Parliament, dominated by the Conservatives has not even been able to strike down the long gun registry. The lifting of restrictions of urban firearms really will never have much traction here.

[cnorman18]

In Canada, what we perceive to be the right wing has a voice represented by the National Post. And, yes, there is a pro gun organization. The National Firearms Association in Canada has not the visibility, support or influence of the the NRA in the USA. More of the debate about gun control in Canada recently has been about the cost overruns and inefficiency of the long gun registry than about the principle of an unregulated armed citizenry. Our Parliament, dominated by the Conservatives has not even been able to strike down the long gun registry. The lifting of restrictions of urban firearms really will never have much traction here.

I suspected that the NFA was the Canadian equivalent of the NRA, and I also suspected that it had neither the influence nor the support of its American cousin. I had never heard of the National Post. Whatever; dismissing it as "right wing" doesn't exactly explain or excuse the specific incidents related in the quote.

I find it disturbing that in some Canadian circles, the idea of self-defense itself is apparently considered somehow immoral or legally suspect. It appears that the British paradigm, that civilized people are obliged to live as unarmed and defenseless victims, is taking hold in Canada too (In the UK, it's illegal to carry even pepper spray, a walking stick, or any other means of self-defense). From a Texan's point of view, it appears that Britons are required by law to be helpless prey. Granted, the crime rate is lower there; but it wouldn't surprise me to see that changing, since criminals are now on notice that they can commit crimes with impunity there if the police aren't in the immediate vicinity. THAT idea will never have much traction in Texas. And I'm pretty much OK with that.

For the record, the British public was assured that their handguns would never be confiscated and that no one seriously contemplated that kind of extreme measure. Now they have been.

I don't know that anyone but some extremists beyond even the NRA are in favor of an "unregulated" armed citizenry. I'm not, and that's certainly not what I'm advocating here. There is nothing in the Second Amendment that says that access to firearms should be totally unrestricted, no questions asked; nor is there anything that implies that ANY kind of weapon whatever should be available to the public without restriction. There is nothing that says guns ought not be registered, or that people ought not be required to be trained in firearms safety and the proper use of them. I'm OK with all of those restrictions, and in fact I'm in favor of them. The Arizona law that now allows anybody to carry a concealed weapon without training or qualification tests is a VERY bad idea.

Reasonable safeguards ought to be in place; felons, e.g., ought not be allowed to own or carry; anyone who has problems with mental illness or substance abuse, likewise; fully-automatic weapons (machine guns), which are already illegal to possess without jumping through LOTS of federal and local hoops. ought not be available for general sale; "destructive devices," e.g. grenades, rocket launchers, firearms of a caliber greater than .50 inch, and so on, ought not be freely available either. And they aren't.

As has often been pointed out, it's more than a little silly to hope that more restrictive gun laws will have much effect on criminals, who routinely ignore and violate the laws that we have NOW. The level of firearms violence is pretty clearly not a simple function of the looser the laws, the greater the crime; if that were true, the crime rate would have been through the roof before 1968, when Joe Anonymous could buy a semiautomatic "assault rifle" or a semiautomatic combat handgun for maybe 5% of today's prices, and do it through the mail and have it sent to a post-office box. It wasn't. If that were true, Washington, D.C., Chicago, New York City, and other large urban centers with extremely restrictive gun laws would have the lowest crime rates; they have the highest. If that were true, the institution of CCW laws would have resulted in much higher rates of violent crime in every state; they have resulted in lower crime rates.

There is room for debate here, but the simplistic knee-jerk "Guns are bad and people who own guns are barbarians" attitude is no more rational than that of the farther-right-than-the-NRA extremists who want free access to M-60s and bazookas. As I say, I have personal reasons for my position here, and it isn't going to change. All the reasoning and statistics and philosophy and idealistic theories in the world aren't worth a mouthful of spit when your guns have actually saved your own life and the lives of your loved ones -- and in my case, that has happened three times. I ain't givin' 'em up.

[McCulloch]

We can, and perhaps should, continue to debate what level of control our governments should apply to public weaponry. Our elected politicians should do so as well. Therefore, the right to be armed should not be constitutionally guaranteed. In my view, it does not belong in a constitution any more than alcohol consumption. The issue should be political not constitutional.

If you know that a man is on his way to kill you, go and meet him on the way -- and kill him first.

Do you see your right to bear arms as being protected by the first amendment too?

[cnorman18]

We can, and perhaps should, continue to debate what level of control our governments should apply to public weaponry. Our elected politicians should do so as well. Therefore, the right to be armed should not be constitutionally guaranteed. In my view, it does not belong in a constitution any more than alcohol consumption. The issue should be political not constitutional.

I disagree, and for the reasons I've already given. The Government ought not have a monopoly on information, and it ought not have a monopoly on force.

The details of who ought and ought not have access to weapons, what kind, and where they might be carried might be political matters; but the right to self-defense, and therefore to owning the means to exercise that right, are absolute rights that government does not have the power to take away. The extent of that right is properly a matter of debate and consensus; whether it exists at all is not.

If you know that a man is on his way to kill you, go and meet him on the way -- and kill him first.

Do you see your right to bear arms as being protected by the first amendment too?

Not protected; recognized. It is protected, at bottom, by nothing but my own power to exercise that right and my own good sense in not abusing it. I am reasonably confident that, as a law-abiding citizen, my guns will not be confiscated by my government (though some Brits probably had that same confidence). If that is ever attempted, it will have to be accomplished by force. In my part of the world, I will not be making that stand alone. That is well known, which is one very good reason that I doubt it will ever be attempted.

There is also the problem of knowing who is armed; in my "real life," NO ONE, excepting only my lady, knows that I carry daily. We CCW holders don't wear signs on our foreheads. My weapon will never be seen unless it is needed in a matter of life and death. I don't draw down on people who cut me off at the stoplight or give me the finger at the Mall. Many people, including myself, regard responsible and law-abiding armed citizens as assets to society, not liabilities. As someone or other once said, "Outlawing guns in a time of rising crime is like outlawing boats in a time of rising water."

[Grumpy]

cnorman18

The phrase "well regulated militia" that has a right to "keep and bear arms" does include the word "regulated" that IS the government's business, in most things that is what they are there to do. I hope it can regulate my not quite stable neighbor in his quest for a private tank.

Don't get me wrong, I own several firearms, some quite deadly even in a military scenario. And there is a Mossberg 500 with pistol grip hanging from a lanyard on the hinge side of my front door(we get bears and other(two legged)varmints out here). None holds over 8 rounds(the Mossberg), though I do have speed loaders for the 629 and clips for the 1911(Me like Big Boom!). Wait, the Ruger 22 holds 9

But I do not carry concealed or have a weapon in my car. I'm not sure anyone not involved on a professional basis should, at least without extensive training and background checks. In NC it is a 45 minute class(IIRC), not nearly comprehensive enough. And that's in a place where a Saturday's entertainment consists of loading up the 22s and going out to kill some bottles or cans(usually emptied in the process first). I think that in urban areas this would be a problem, and the guns are not being attained for self defense and usefulness, but for force projection outside the home(and attempts to protect from same). Armed gangs are not what the founders had in mind.

So, I'm all for REGULATED ownership of guns. Unrestricted in the home but not necessarily in the public realm.

Grumpy

[Lux]

I don't draw down on people who [...] give me the finger at the Mall.

Does this happen often?

Many people, including myself, regard responsible and law-abiding armed citizens as assets to society, not liabilities. As someone or other once said, "Outlawing guns in a time of rising crime is like outlawing boats in a time of rising water."

The problem (for me at least) is not so much with responsible and law-abiding citizens... but you can't tell me you don't know "others" who own guns, especially living in Texas. In my times there I have met a few people with criminal records with permissions for concealed carry. One of them was diagnosed as bipolar while in prison. Another one threatened his gardener with his gun. None of them were required to stop carrying guns. I admit I don't know to what extent that is legal and to what extent it's a reflex of the inefficiency of the law, but it goes on.

Irresponsible people with guns shoot their spouses after a fight and they fail to keep their weapons away from their children (and that's how we end up with kids walking into school/campus and shooting at their classmates.)

The system hardly manages to keep guns away from the most blatant cases of criminal behavior and mental problems, but they fail to account for things such as anger management, depression, sociopathy, responsible parenting, criminal activity other than serious offenses, among others. In fact in some states no one needs a permission to own a gun, only to carry it. That's not the smartest move in the world, since by the time you realize the schizophrenic is carrying a gun it's a bit late to ask if he has a license for that.

I don't oppose the idea of individuals having the possibility of owning guns (admittedly I would like the process of selection to be quiiite more... selective), but I can't deny I question a society where you can walk into Walmart and buy a semi-automatic gun, as if it was a new Ipod. I don't think guns are taken seriously enough in the USA.

While I accept that the 2nd amendment guarantees the right to own firearms, I don't think that's what we should all be looking at. As much love as people may have for the Constitution, we shouldn't forget it was written over 200 years ago. The world and the country have changed a bit in all those years, and the law should be molded after the way it is now, not after the society of the late 1700's.

The reasons why the Bill of Rights protects the right to bear arms are obsolete. In case of a foreign attack, feel free to shoot at the bombs. And it's not like any number of guns would bring down the government, the way it is nowadays. If someone shoots Obama, Biden will take over. Shoot Biden and we'll get Boehner (unless I've forgotten the line of succession... in which case we'd get someone else from Obama's cabinet.)

[Grumpy]

Lux

If someone shoots Obama, Biden will take over. Shoot Biden and we'll get Boehner

Shhh! Glenn Beck might be reading this. On his own he might not think of this!

Grumpy