If you’re an American, you’ll know that John Paul Stevens was an Associate Justice in the U.S. Supreme Court, serving from 1975-2010. Although a registered Republican, his decisions put him on the liberal side of the Court. He’s now 97 years old, but is still fired up (if that’s the right word) about the misconstrual of the Second Amendment to the Constitution. Let us look at Amendment before we read Stevens’s new op-ed in the New York Times (click on screenshot below):
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.
Read it again. The first part gives the rationale for the second, so that the “right to keep and bear Arms” is justified by the need to have a “well regulated Militia”. Militias were quasi-military bodies that the government, in colonial days, used to constitute the armed forces.
For many years, as Stevens notes, the Amendment was interpreted by courts as the government’s having the ability to regulate the possession of arms. That is, the Amendment was construed not as simply allowing Americans to have relatively unrestricted rights to own guns. (For a similar argument, see Garry Wills’s excellent article “To Keep and Bear Arms“, published in 1995 in the New York Review of Books.) Stevens begins by noting the groundswell of support for gun regulation evinced in last Saturday’s demonstrations.
That support is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.
Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “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.” Today that concern is a relic of the 18th century.
For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.”
During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
Ah, how I long for the Burger court. . .
But how things have changed! And they changed for the worse (and seemingly for keeps) with the Supreme Court’s decision a decade ago in District of Columbia v. Heller, in which the court ruled, by a scant 5-4 margin, that the Second Amendment didn’t need the requirement of a militia: that it gave individuals to have the right to own guns for self defense. (The decision overruled Washington D.C.’s prohibition of handguns and restrictions on rifle storage.) The majority opinion was written by the odious Antonin Scalia, while Stevens wrote the dissent.
Since then, gun ownership has proliferated, and with it the spate of shootings in nightclubs, schools, and other public places that culminated in last Saturday’s demonstration. The way to cure this, says Stevens, is simply to repeal the ambiguous Second Amendment. Referring to the Heller decision and the Amendment, Stevens argues this:
That [Heller] decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.
That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence.
He’s right, for as long as the courts interpret the Second Amendment in the wonky and right-wing way they have, the justification for widespread gun ownership will remain. And there’s no sign that the Court, which is even more conservative now than in Stevens’s Day, will reverse course. The only way to do an end-run around Scalia et al.’s stupid decision is to change the Constitution.
But of course that seems impossible. While there are several ways to amend the Constitution, the usual one is for a proposed amendment to pass both the Senate and the House by a 2/3 vote, and then be ratified by three-quarters of America’s states—all within seven years. (The time limit is why the Equal Rights Amendment, a no-brainer guaranteeing that equal rights couldn’t be abrogated on account of someone’s sex, failed.) Can anyone imagine the Congress even voting to send such an amendment to the States? And can anyone imagine that the ensuing confusion about what would happen with such a repeal would be cleared up before the time limit? And I’m not even taking into account the mouth-foaming, vitriolic, opposition of the National Rifle Association and the power and money it would muster to block such a move.
Stevens’s suggestion is a good one in principle, for it eliminates the Constitutional ambiguities that have led to virtually unrestricted private ownership of guns. But what would replace it? A farrago of state laws, some even more lax than the ones we have today? Federal laws with even stricter gun regulations?
My own stand on guns is that they should be severely restricted along the lines that the UK has. No handguns, automatic or semi-automatic weapons, justifications and strict controls needed to own any firearm, and private ownership of such arms limited to shotguns and sporting rifles. (The UK of course has a much lower rate of gun violence than the U.S., but gun nuts make unconvincing arguments that regulation and deaths are unconnected.)
I don’t know how this will happen, but I dearly want it to happen, for too many lives have been taken away but morons who cling to their guns—or by innocents who accidentally discharge them. Statistics show that guns do not make people safer, for they wreak more carnage than they do in protecting homeowners.
When the shootings in Florida took place, I hesitantly suggested that perhaps this might mark a turning point in America’s attitude toward guns. And indeed, the demonstrations by young people, which greatly heartened me, made me think that maybe something will happen. But as the days pass, I fear the activism will wane, and we’ll be back to business as usual. In my own city, 499 people have been shot this year (91 killed), and someone is shot every four minutes. Can anyone stop the madness?
This is nothing new; George Will, an otherwise fairly doctrinaire conservative, wrote the same in a syndicated column published on March 21, 2018. See http://articles.baltimoresun.com/1991-03-21/news/1991080067_1_militia-gun-ownership-gun-control.
President Obama was probably the best thing that ever happened to gun manufacturers in this country. (Or at least idiotic paranoia about gun control that his election was supposed to make inevitable.) But when His Orange Shitheadedness was elected, gun sales plummeted. To the point where several of the manufacturers are in serious financial straits. (Case in point: Remington’s bankruptcy filing a few days ago.)
One can only wonder what this current political movement will do for gun sales. If history is any guide…
But then, what do I know? I’m just a “moron…cling[ing] to [his] guns.”
Damn! 2018? Sorry, no–it was 1991.
Remington’s filing only just made it to my news feed. “filed for bankruptcy protection” could mean lots of things, but I do wish their management badly and hope their workers can get proper jobs if the company crashes.
Unfortunately, the learned justice is mistaken. Militias of the sort refered to are covered in Article 1 of the Constitution which makes TSA curious. It is in the Bill of Rights to support the creation of impromptu and volunteer militias, the primary purposes of which were to kill Native Americans so as to appropriate their land and return runaway black slaves, killing a very few to make sure there were examples to the other slaves but also not wasting valuable resources. Many people do not think back to past the existence of the Texas Rangers to realize that almost every state in the South had its own rangers. These were militia members who performed the above tasks.
The huge revolution in firepower brought about by the Civil War equipped these “rangers” with formidable firepower … mostly to advance white supremacy. (Did you know the Texas Rangers invaded Mexico and force Mexico to cede its claim on California, New Mexico, Arizona, and Texas?) This is the true basis for TSA and because we exterminated almost all of the Native Americans, certainly we stole all of their land, and slavery was abolished, the necessity of TSA is no longer in existence. It has outlived its nefarious usefulness, served its purpose, etc.
Now that we have no slaves or Indians to shoot, we are now shooting our own children which is a big sign to one and all but the firearms industry and its marketing agency, the NRA.
Great Post! Yes! This was the original reasoning behind the militias or slave patrols mentioned in the TSA. I note that the “firepower” lent to individuals with the invention of guns was part of what enabled the slave trade and the genocide of native Americans.
As one of the eloquent kids from Florida said, (something to the effect of), “this country was built on the backs of slaves and the bones of natives”.
“I ask, sir, what is the militia? It is the whole people, except for a few public officials.” G.Mason, 1788 debate on Constitutional Ratification.
The people who wrote the Bill of Rights wrote endless explanations of the meanings of the articles in the document, as well as leaving transcripts of the debates during their conception and ratification. The argument that they did not mean that the citizenry should be armed is disingenuous. They were pretty specific about that. The meaning of the phrase “well regulated” is perceived in a different way than it was then. A regulated clock was one that was made with high quality materials and kept good time.
Slavery and genocide occurred with frequency well before the invention of firearms.
even if you are talking specifically about the Atlantic slave trade, the operators of the slave ships did not need to use force to acquire slaves, they purchased them through a supply chain that had been in place for millennia.
You cannot just separate the world into pure blameless people and their oppressors. Life is more complicated than that, and certainly was so in the early years of the US. Some people committed what would now be considered genocidal acts in order to prevent their communities from being raided and taken as slaves.
If you personally believe that the citizens of the US should be disarmed, that is a point of view that you are absolutely entitled to. But the Zinn-esque revisions of history to support that viewpoint are unnecessary. Own your beliefs. I probably disagree with you, but our life experiences are probably very different.
This is a great forum and site, because it is the general practice here to base our views on the facts as they are observed to be, instead of the other way around.
Every death by shooting is a tragedy. The US is a nation of over 300 million people. Generally speaking, more people die here annually from lightning strikes than in school shootings. If every death from lightning or accidental poisoning were covered in the media as exhaustively as gun deaths, we would certainly be more concerned about those things than would be warranted by the actual risk.
Of course, my views are based on my own experiences and perspectives. I am writing this from an area with very high levels of gun ownership, almost no police presence, and essentially zero violent crime. Not only does our experience imply that perhaps availability of guns might not be the primary issue, but also that disarming us might not be the solution to the problems of violence in other places.
I expect that someone living in Memphis or New Orleans would see things differently.
Let’s test your lightning theory. Per NOAA, over the last twenty years, 51 people have died in lightning strikes. Per Wikipedia’s list of school shootings, we’re at 24 for 2018 already. 15 in 2017, 8 in 2016, 21 in 2015. So that’s 17 a year for those four years (assumes no more in 2018). However, there are only 74.6 million students, which is of course fewer than the total population which we could set at 325m. 325/74.6*17=74 students which is a 45% higher rate than lightning. So we might conclude that getting shot at school is more likely than being struck by lightning. I’d be all for disarming Zeus of his lightning bolts at this point. How about some of the guns?
Notice though the steps we take to foil terrorist attacks. In this same period, there have been just over 100 deaths from terror attacks. This you can get a rise out of the NRA on.
Why do they care so little about students?
47 lightning fatalities per year, via NOAA-
http://www.lightningsafety.noaa.gov/odds.shtml
“Why do they care so little about students?”
When you say the NRA, what you are really doing is using it as a proxy for American firearm owners and we resent that you would assert we don’t care about children in school being shot. By the way, we care about the faculty and staff, too, not just the students.
We want to foil school shooting plots just as we want to foil terrorist plots. Each time there is a school shooting, we point out the completely seemingly obvious problems and their proven solutions.
If we make a school campus a gun free zone, then there is no one on campus who can wield the same or similar power as the criminal, increasing the probability that children and others will be injured, including to death.
If we allow firearms on campus wielded by hired professionals, we increase the probability that they can confront and capture, kill, or drive off the shooter.
If we allow armed faculty and/or staff, or them access to on campus armories, whether in addition to or in replacement of hired professionals, we increase the probability that they can confront and capture, kill, or drive off the shooter.
Enough data are available to see the results between having and not having armed individuals on campus to thwart would-be school shooters. They have been stopped more quickly by armed individuals on campus than when there is solely a reliance on law enforcement responding from off campus.
As you aimed the question at us, I’ll so aim it back. Why don’t you care enough about the students to have armed adults on campus? Why do you not only want school campuses to be gun free zones where would-be mass murderers can indulge themselves knowing there will be no timely armed resistance, but advertise it as well with signs at the entrances announcing that everyone on campus is unarmed?
We believe we have the moral high ground on this issue because we are willing to place an armed impediment in the way of the shooter; you want to allow them resistance free access hence the opportunity to shoot people for a duration equal to that of the local law enforcement response time.
So, who cares more about protecting lives on campus, student or otherwise?
I’m sorry Max but the history proves you are wrong. The slave patrols were the only check on slave rebellion. Patrick Henry pleaded with Madison over fears that the establishment of a national army would void southern states right to “militias” aka, the slave patrols.
At the time the Constitution was written, the arc of history was turning against slavery. The British had declared war on the trade and banned the practice in 1807. You may recall that we fought a bloody civil war over the issue less than 60 years later. This is where the trope that the feds are coming for your guns came from.
In this place you live, where everyone carries guns, and you feel so safe – do you all carry guns because you are afraid of each other or are you afraid of each other so you all carry guns? Sounds like a sick society to me. Just sayin’
I wouldn’t say that Stevens is wrong about “concern” over a possible federal level standing army. I have read as much in other, presumably reliable, places. But his analysis is certainly shallow and incomplete. Thank you for filling in some of the less salubrious history that is often overlooked by apologists for current U.S. gun control policy.
A few weeks ago I wrote an essay on the Second Amendment from my perspective as a copy editor. While I still like what I wrote, I’m thinking now, weeks later, that I didn’t go far enough: It’s not that the Second Amendment needs to be fixed. It’s that it needs to go.
Anyway, here’s the piece that I wrote: The Second Amendment — and a Copy Editor’s Suggestions for Improvement (https://medium.com/@lyonsnyc/the-second-amendment-and-a-copy-editors-suggestions-for-improvement-16cf11deb9c1)
Thank you for that piece. As an English Lit major that sentence has always bugged me.
It’s a bit of a non-sequitur. It reads like “The delightfulness of ice cream being unchallenged, the right of children to have birthday parties shall not be infringed.”
If we’re gonna get all misty for an earlier Court, boss, how ’bout we hopscotch Warren Burger and go all the way to Earl Warren …
It’s a tragic situation with seemingly no way out. Beyond a point of no return it seems. The monster is out of the cage.
I half jokingly wonder if there’s loophole whereby we can outlaw bullets. Buy all the guns you want. But live rounds are illegal. So all guns come only with that flag that pops out and says “Bang!”
In a word, “no.”
Ammunition is exactly as protected, or not, as the guns that use them.
The way that some jurisdictions have attempted an end-run around the Constitution is not through prohibition, but ruinous taxation. HUGE taxes on ammunition. But this was settled almost exactly 200 years ago, by Chief Justice John Marshall, adopting the reasoning of Daniel Webster, the lawyer who argued for the winning side in *McCulloch v. Maryland*, 17 U.S. 327 (1819).
Webster, in arguing the case, said: “An unlimited power to tax involves, necessarily, a power to destroy,” 17 U.S. 327 (1819).
In his decision, Chief Justice Marshall said: “That the power of taxing it [the bank] by the States may be exercised so as to destroy it, is too obvious to be denied” (p. 427), and “That the power to tax involves the power to destroy … [is] not to be denied” (p. 431).
Source: http://www.bartleby.com/73/1798.html.
As a practical matter, the courts are going to allow such taxation–up to a point. What if states all abandoned any attempt to outlaw abortions, but set a state tax of $1M on the procedure?
If you want to “destroy” the 2nd Amendment, then by all means do so. But cuteness won’t get you where you need to be.
Might help as well if congress were to repeal the 2005 statute whereby it granted gun manufacturers immunity from civil liability. Just ask Big Tobacco.
That oughta be palatable even to the libertarians among us, no?
There is no immunity from current theories of liability. The problem is there is no theory under which you can sue gun makers and sellers under current theories of liability. That’s why gun makers won all the pre-2005 cases. How many erin brockovich movies have you ever seen about gun makers? The answer is none because nobody ever won their cases. They didn’t have a legal theory to stand on.
All the 2005 law does is prevent courts from being allowed to invent new theories of liability outside of our current tort system. Basically somebody can’t run to the 9th Circuit and say, “hey, make up a theory of liability so we can punish them.”
Bob: “The problem is there is no theory under which you can sue gun makers and sellers under current theories of liability.”
I don’t think that that’s exactly correct, although as phrased, Ken’s comment didn’t give you much to work with. There are plenty of theories under current tort law by which gun manufacturers could be sued–the obvious example would be for injuries caused by guns blowing up because not designed to withstand common chamber pressures.
But that’s not really what we’re talking about; what the “antis” are looking for is a theory under which manufacturers would be held liable for the criminal acts of unrelated third parties. (And Ken, that’s another reason that the tobacco analogy is inappropriate.) The link to Wiki’s page on the PLCAA explains all of this.
If that’s the case, then enactment of the immunity statute was totally otiose. Anglo-American common law has done a pretty fair job of sorting out liability and loss for well nigh a millennia now. Is there some reason it’s incapable of doing so in the field of firearms?
No, it’s perfectly capable of doing so, and did. As I said, gun companies won every case.
At some point it had to stop though. You can’t just have anti-gun organizations flooding gun shops with BS suits to try to put them out of business with legal fees. So we passed a law limiting the scope of liability to just fault on the part of the gun maker/store. Which is how liability works. This meant less suits were going to be filed, since you weren’t going to get very far into discovery, and be on the hook for legal costs.
But the field of firearms is unique in that there aren’t many fields that actually have a constitutional right as it relates to the object. So it’s not really an appropriate area for the common law to be given free reign. Much like the Supreme Court had to step in in NYT v. Sullivan. You couldn’t let common law principles undermine rights enshrined in the Constitution.
Sullivan was decided as part of the constitutional common law of the land; congress didn’t step in and grant immunity to “the press.” And there was no need for congress to grant such special protection to gun manufacturers. The Second Amendment certainly did not compel such a result.
There is a way out, but it requires some of your politicians to grow a pair.
When Australia clamped down on gun ownership, at least one politician lost his job over it. When John Oliver interviewed him and asked him why he did it, his reply was along the lines of (can’t remember exactly what he said) was his job more important than the lives of Australians?
I think there are probably a lot of politicians who privately support gun controls but who publicly say nothing or publicly support 2A out of fear of getting booted out. Think what it says about them. Think what the calculation is that they have made.
Neither firearms nor ammunition are complicated technologies. When there is a desire for such things,and people who are willing to break the law to acquire them, they will do so. If not by smuggling, then through illicit manufacture.
A frighteningly large percentage of shootings in the US are perpetrated by gangs or other criminals. You are not going to easily disarm such people. An interesting place to see the state of global improvised gun technologies is:
https://homemadeguns.wordpress.com/
The hardest part of making gunpowder is the preparation of the charcoal. That is the only part of the process of making it by hand that qualifies as “art”.
All sides in WW2 and the cold war spent time developing designs and technologies for friendly insurgents in territory controlled by the adversary to easily produce reliable and efficient weapons with a minimum of resources. Those technologies exist today, and are certainly within the manufacturing abilities of drug cartels, terrorists, or the disguntled.
Yes…and a lot of the machinist’s skill that even simple designs required is no longer needed, with the advent of better and better 3-D printers.
And yet somehow countries which have strict gun control are not awash with home-made guns or ammunition.
“the Amendment was interpreted by courts as the government’s having the ability to regulate the possession of arms.”
This is not entirely true. If you look at cases from the 1800’s (which were all brought by individuals suing in their individual capacity, not as militia members), the Courts ruled you didn’t have the right to individually own a gun that would be of no value to the militia. This is the exact same logic the Supreme Court used in Miller in the 1930’s (Miller was also bringing suit in his individual capacity, not as a member of the militia).
It’s simply not true that the Courts just believed the government had the right to decide what guns you could and couldn’t have, with no restraint. The restraint was: could you go to war with this gun? Scalia switched that to: is the gun in common use, obviously to avoid having to legalize machine guns and rocket launchers.
“Bearing arms for the common defense may well be held to be a political right, or for protection and maintenance of such rights, intended to be guaranteed; but the right to keep them, with all that is implied fairly as an incident to this right, is a private individual right, guaranteed to the citizen, not the soldier.”
– The Court in Andrews v. Tenn, 1871.
I don’t see how what you wrote is contrary in any way to the quote. You did point out a limit but the quote doesn’t at all imply that there are / were no limits to the government’s authority to decide what guns individuals could have.
The article is presenting this idea that the Second Amendment was always understood to be a militia right, not an individual right. And because of this, the government was allowed to regulate possession of guns by individuals. What guns, if any, you were allowed to have, and for what purpose, was completely within the power of the government, since you had no Second Amendment right as an individual.
Then the “odious Scalia” came along and gave us Heller, which overturned the history of what the Second Amendment was understood to protect, and instead created an individual right which limited the government’s ability to regulate the kind of guns an individual could have and for what purpose.
That’s the narrative of the article. And it’s not correct. Going back to the case law of the 1800’s, the Second Amendment was always understood to be an individual right, and the government didn’t have the power to just decide what weapons you could and couldn’t own.
Your right that, without the context of the rest of the article, you could maybe argue the quote doesn’t imply full regulatory control. But one would have to not read everything else to believe the professor isn’t arguing that pre-Heller it was always understood that the Second Amendment wasn’t a limitation to the government’s ability to regulate private arms.
I don’t agree with your interpretation of what the SCJ said in his article.
I am way out of my depth on this, but at the risk of getting my nose wet (and maybe learning something), it seems to me that the distinction between “a militia right” and “an individual right” is something we project onto the past. My understanding is that every citizen (male) was required to participate in the militia. So the distinction which seems so clear to us today between “individual” and “collective” rights would have been, to the citizens of the time, a distinction without a difference. To say that the militia was the justification for the individual right does not require one to imagine a separate “collective” right assigned to the militia, since the militia and the individuals (citizens) are one and the same.
In fact, as I think about it, since the state did not provide the arms, requiring each citizen to participate in the militia is tantamount to mandating all citizens to own arms, though perhaps a pitchfork would have sufficed.
It’s a distinction with a regulatory difference.
If the 2A isn’t an individual right. And isn’t a state right that prevents federal regulation. But is instead purely a militia right, than nobody but the militia has standing to bring suit under the Second Amendment. The federal government can ban the private owning of firearms, and it wouldn’t violate the Second Amendment.
Your argument that private guns are where the militia firearms would have come from is a common argument in favor of the individual right view. The founders protected the militia by protecting the individual.
But, suppose it’s just a militia right, not an individual right. A state saying, “but that’s where our guns come from, we don’t supply them,” wouldn’t be a legal argument. The response to that would be, “sorry, then you better start supplying them. The 2A is a militia right, not an individual right.”
But you’re right. All of this would have been conflated and merged by the Founders. Further muddling the water of the meaning of the 2A is where the federal power to regulate individual arms is coming from? Our conception of the Commerce Clause that allows for private firearm regulation didn’t come into existence until the 1930’s. So under the original powers of the fed as they understood them, what were they trying to protect against?
Thank you, I think I understand you better now.
With all respect to Stevens there is no need to attempt the nearly impossible task of a constitutional amendment. I am sure he knows this just as he knows the last ruling by a supreme court is only good until the next ruling comes along. He knows the Heller case was bad and it only needs a challenge to change it. Stevens may not live to see it but many of us will and the times are a changing.
The regulation of guns is open to those with the will to do it and nothing about the 2A should stop it. Our Putin government will soon be over and then all things are possible.
Out of curiosity, just what challenge to Heller, and McDonald for that matter, do you believe could possibly change what is now, beyond question, settled law? Those rulings solidify that it is an individual right to own firearms and no entity within the State can infringe upon the basic right.
Regardless of who controls the administrative and legislative branches after Trump, there is no law that can be written by anyone to unravel those rights that would pass constitutional muster. To suggest that SCOTUS would rule opposite of its very own precedent on such a basic right is to completely disregard its historically extremely strict adherence to precedence in law.
And as for times a changing, do you really believe that both houses of Congress could get 2/3 of each to agree to a proposed repeal of the amendment? Do you really believe that 3/4 of the states would agree to any such proposed amendment?
Unfortunately, the syntax of 2A is unambiguous. As written, the amendment refers to an existing right, a right that the amendment pledges “shall not be infringed.” That is, the amendment does not establish the right; the right already exists.
The reference to “a well-regulated militia” points to what the framers regarded as the foremost reason to preserve the right. The right to keep and bear arms was not contingent on the need to maintain a militia. In other words, the need for militias is a *justification,* not a condition. The possession of firearms by “the people” is assumed to be universal and pre-existing. At the time, firearms were necessary for hunting, pest control, and home defense. Nearly every household contained a musket or two.
The language is clear. The people’s right to bear arms is expressly acknowledged in the latter portion of the amendment itself, and the amendment explicitly recognizes that existing right. That, unfortunately, is what we have to contend with today–it’s like a curse unwittingly imposed on us by the framers. They could never have anticipated the weapons technology we’re dealing with today, of course–but we’re stuck with the framers’ language.
So the Second Amendment is pretty much a done deal for now, as the Supreme Court’s decision in Heller (2008), written by Justice Scalia, makes clear. Nonetheless, the Heller decision leaves plenty of room for regulation–even for firearms-owner licensing and liability insurance. In Heller, the Court recognized the rights of jurisdictions to circumscribe Second Amendment rights as may be deemed reasonable, just as other basic rights (speech, the press) are circumscribed. And Scalia was explicit in favoring certain limitations. “We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,'” he wrote.
Scalia also acknowledged that gun ownership was a right Americans exercised *not* for opposing tyranny but for “traditionally lawful purposes, such as self-defense.” Even so, the legal pathway toward widespread regulation of firearms remains wide open.
Well said. Many of the framers were lawyers; certainly they understood what “precatory language” was.
I would quarrel with this: “They could never have anticipated the weapons technology we’re dealing with today…” Undoubtedly true, and irrelevant. The musket WAS the “assault rifle” of the day; were it non-competitive, it would have served no purpose. They also probably didn’t foresee fax machines, telephones, radio, TV, and the internet…but how many here think that the First Amendment does not apply to them?
Incidentally, in United States v. Miller, 307 U.S. 174 (1939), the Supreme Court may or may not have been right on the law, but they were hopelessly wrong on the facts. Miller rested on the idea that a sawed-off shotgun was not a common weapon of war. Wrong. From the “trench guns” of WWI to their common use in clearing tunnels in Vietnam, they’ve ALWAYS been in common mlitary use.
Trench guns were generally not sawed-off. The primary marketing of purpose manufactured short barreled shotguns was as Automobile and Burglar” guns.
Trench used in the military generally used a 20″ barrel. And were issued with a 17″ bayonet.
Just an FYI from your local, friendly, Military Archaeologist.
Thanks for the correction. Of course I didn’t mean literally shortened with a saw; it was just shorthand for short-barreled. But still a very sloppy use of language. Good catch.
Lucid, thank you.
“They could never have anticipated the weapons technology we’re dealing with today…”
I think it is an error to focus too narrowly on the change in weapons technology. There were so many things the founders could not foresee. Things like the expansion of citizenship, the professional military and our military budget, the fact that a gun is no longer a necessary tool for living in our nation, which is no longer a wilderness (at least not the kind they needed guns for)… the evolution of firepower is the least of it.
I have heard before things like, “Nearly every household contained a musket or two”, but it was not households that were citizens or militiamen. To modern minds this conjures the image of an egalitarian society where, if wealth was not equally distributed, at least “everyone” had the basic tools for survival. I know there were movements to restrict citizenship to the wealthy. I also have read that “we” were “a nation of yeoman farmers” and I suppose those with the resource to own a farm probably did have the resources to own a gun. But I can’t quite square this kind of talk with what I also know about the number of people who came here as indentured servants. It’s like there was no poor underclass at out nation’s founding… or those people just weren’t citizens and so can be summarily dismissed.
I submit that what has significantly changed since those times is not guns, but citizenship and the role of guns in our daily lives.
“They could never have anticipated the weapons technology we’re dealing with today, of course–but we’re stuck with the framers’ language.”
Do you really think the Framers couldn’t anticipate that firearms technology would continue to advance? They were aware our species went from clubs and knives, to distance weapons like spears and bows, then graduated to firearms and cannons which had been advancing in capability for several hundred years by the late 1700s.
Just examining their knowledge circa the Revolutionary War to 1800, they were aware of continuous fire weaponry. That means they knew semiautomatic and fully automatic weapons were not just possible but to be fully realized in the next generation of firearms. The Puckle Gun was patented in 1718. “Infernal machines” as they were known date back to the 15th century. Continuous fire crossbows had existed and been deployed in combat since the 4th century. Not all were successful, but the Framers nevertheless had to be aware of the state of the art since Joseph Belton tried to sell them on his namesake, the first primitive repeating rifle. They also had the first grooved long rifles, a candidate for the first sniper rifle, capable out to 300 yards which was 200 more than the British.
They were aware of man’s attempt to fly via balloons, so they could certainly imagine air warfare, at least in support of land forces. And they were also in favor of private citizens being able to own field grade weapons as well. They issued letters of marque to private ship owners, confirming the Second Amendment guaranteed their right to purchase cannon for use as privateers. There had already been private militias who employed cannons – with there blessing.
Ben Franklin certainly understood scientific and technological advancement. Ethan Allen, Sumter, Washington, Morgan… these were not men who couldn’t comprehend that weapons would continue to become more lethal. Nor were they opposed to citizens owning what were then state of the art martial weaponry.
Actually the high murder rate (yes your city is among the worst in the world) is largely confined to certain big cities (which a number of people have pointed out are Democrat dominated for decades). Fully 1/3 of the national increase in murders last year was 5 CHICAGO NEIGHBORHOODS. What’s in the water there?
There are two different worlds out there. And a cultural divide. I’m really not sure what to do about the inner cities… but gun control won’t stop the decay.
In the big picture, I really am very concerned about repealing part of the original Bill of Rights. Can the First and the Fourth be fare behind?
Indiana and Wisconsin have very lax gun controls, and both states are easily accessible to Chicagoans.
But that’s kind of an odd argument. If guns are this inherently horrible thing, they should be in Indiana and Wisconsin as well, where, as you said, guns are a lot more easy to access.
It’d odd that this horrible thing doesn’t really have much of a horrible impact on any kind of statistical scale until is crosses certain zip codes. I’m not sure another inherently horrible thing, like poisonous gas or something, would act that way.
Anywhere in any city where there is drug dealing, there are gangs. These gangs fight for turf. They fight with guns and people die. Remove the drug profit, the gangs have nothing to fight over. Legalize (or regulate if you prefer) the drugs, and you remove the profit.
The other issue is that the attitude towards the inner cities is pretty much now as it has been for years past. Immortalize in “The Godfather” in the line by Don Giuseppe “Joe” Zaluchi: “I want to control it as a business, to keep it respectable. I don’t want it near schools! I don’t want it sold to children! That’s an infamnia. In my city, we would keep the traffic in the dark people, the coloreds. They’re animals anyway, so let them lose their souls.” Maybe with white people on opioids, some attitudes will change but I doubt it. Right now, except to score political points, no republican really cares if there is violence in the inner cities.
Sure. We only have limited public resources. Only so many of them are going to go to crime prevention. Of those, you’re going to have to make some tough decisions that you wouldn’t have resources were unlimited.
One guy goes to a “nice” part of town and kills a soccer mom and a community church leader and a small business owner. Another guy kills a rival drug dealer that was more than willing to kill him too.
You have enough resources to catch one. Whichever one you catch is going to deter that kind of crime. Whom do you pick?
This is why liberals have focused on AR-15s and mass shootings. These guns and killings don’t even account for a drop in a bucket. BUT, there is a sense of “randomness” to them. Like it can happen to anybody, anywhere. And so it plays with the public a little better, compared to one gang member killing another gang member in some part of the city that you’d have to get lost, and then get lost trying to get unlost, before you would ever end up in.
“compared to one gang member killing another gang member in some part of the city that you’d have to get lost, and then get lost trying to get unlost, before you would ever end up in.” And maybe if it was just gang killers killing other gang killers, I might not be as concerned. But these neighborhoods who “the public” would never go to are home to many people who live there and become collateral victims. But crime solving is for the white soccer mom victim, not the black four year old girl shot playing on her swing set, and well, “nobody” lives there anyway. Plus, you know, individual responsibility and all that.
I’ve read (not fully verified) that once you adjust demographics for the US and Canada the homicide rate for both countries is very similar.
StatsCan reports that in 2016 the homicide rate in Canada was 1.68 per 100,000 population.
Wiki reports that the rate for the US was 4.88 per 100,000 in 2015.
Once you adjust for inner-city gangbangers the US homicide rate is very close to the Canadian rate. Our demographics skew the rate.
Once you change the numbers the US has no homicides at all!
The intent of the 2nd amendment is made clear from why they included the 3rd amendment. Both amendments were written in a time when the (British) government was overly tyrannical in how they used their army.
In essence, both amendments are somewhat anti-military amendments. Just like a country needs a standing army to defend itself from other countries, the federated nature of the US used the same logic to say that states needed their own militias to defend themselves against the federal government.
Literally, the point of the 2nd is that we might need to defend ourselves from or kill American soldiers/sailors/marines/airmen.
The current implementation of the 2nd amendment (citizens can haz as many gunz as they want because it’s just an inherent good. Or something) completely bastardizes the intent behind why a 2nd (and 3rd) amendment was included in the constitution.
Your reasoning on anything historical in this argument is just not correct. James Madison was reluctantly working on amendments or additions to the constitution in order to appease the anti federalists. He and a majority of others at the meeting in Philly did not think a bill of rights was necessary and actually voted against it. Later, after going through all the ratification process, some promises were made and he was then full filling this duty as I said, to satisfy the anti federalist. There was no great demand for anything requiring protection from the govt. that would take away guns. If you can find such a history, please let me know. There was much concern about Standing Armies. Anti federalists were afraid this “new” federal govt. might establish a standing army. Madison’s second amendment was a way to reduce this worry by noting and reinforcing the idea of militia.
Remember, it was a British standing army that was fought for 8 years of revolution. That we would become another England was the worry. That there was any concern about taking away your guns was rubbish. And by the way, that 3rd amendment was another memory of the revolution – keep the soldiers out of our homes.
I think you’re right. I would like to see the evidence that the purpose of the 2nd amendment was to protect the states from the federal government.
You could read Mason’s debates on the VA floor.
State constitutions that included the Second Amendment provisions were a lot more hostile in their language. While Madison didn’t want to say, “This federal government we are creating is a source of evil that must be armed against for when that day might come,” state constitutions that copy and pasted the Second Amendment also added language that directly said the federal government being able to raise an army is a danger to us all, so we creating the Second Amendment. Because states obviously didn’t care about being delicate with their language.
Yes, the concern was that the federal government would ban guns and turn the army lose on the states. And without firearms, there would be nothing that could be done.
This is why Mason put forth two changes to the Constitution:
1. Amend the Article I militia clause to force the federal government to arm the militia.
2. The Second Amendment
To say the Second Amendment didn’t involve a fear of the federal government disarming the people, is to ignore the entire debate. There was nothing that was going to be done about the army. While Mason feared it, even he didn’t think there shouldn’t be an army. If we have to fight it some day, we will fight it. The fear was on making sure the people had the means to fight it, and how we could guarantee the militia was always armed. It was the arming of the people that was in need of a solution.
If you would please look at Virginia’s declaration of rights 1776 or Delaware 1776, and this is well before the Constitution or the bill of rights it will give you what I am saying. They concentrate on MILITIA and even say, a standing army is not wanted or needed in peace time. (stay with the militia and forget the standing army. They do not even say anything in there about arming people with guns or a right to own guns. The key everywhere was militia (the state military) and avoid the terrible standing army. If the federal govt. raises a standing army, it will be used to come after and control us.
Again, the fear was a standing army. The irony of the militia was that lots of guys did not have guns. So you call up the milita and then you have to find a way to supply guns to the ones who do not have one. Militia without a gun made it hard to fight. That is another reason why the states would have an armory and keep weapons and powder in the armory to supply the militia.
Fast forward to much later days and the irony is back again. Militia does not get it and we have standing armies, navy, marines and air force. Are they coming to take us over, hell no. But that was the fear in 1780.
1. Yes, they feared the standing army. The solution to that was to make sure the militia was armed. There was nothing they could do about the army. Some anti-federalists didn’t want the federal government to be allowed to raise one. BUT, most even conceded the fed. has to have an army. So that wasn’t the problem they were trying to solve with the 2nd Amendment. The problem was the Article I power of the federal government that gave it complete regulatory authority over the arms of the militia. Because the issue for Mason and others was that the federal government would pass a law not allowing the militia to have guns. “The militia shall train with sticks, and during war, we will issue it guns.” Something along those lines. And then just invade VA. So the fear was the standing army. But that wasn’t the problem in search of a solution.
2. Yes, the VA was more centered around the militia. But that isn’t the language of the 2A. Mason combined VA with MA. The British had gone around to private homes and business and disarmed the MA citizens of their private arms. Knowing this would disarm the militia. Before the Revolution, Adams was a staunch attorney for the right to keep firearms in the home. Based on his view of the individual right to have guns in the, and the MA experience with the British, Adams wrote the MA Declaration of Rights to be the first state to guarantee a right to “keep” arms.
It is this concept of rights that Mason combined with the VA Declaration of Rights to form the Second Amendment.
Here is an interesting article from the Washington Post by Noah Shusterman on what the Second Amendment meant to the founders. Its primary purpose was to assure that a standing army was not necessary to defend the country; it would be done by the militia. This does not imply that the militia was necessary to fend off a federal army because there wouldn’t be one of any consequence. Another purpose of the militia was to assure that there would be a military force that could put down slave unrest, a perennial fear of the white South. Finally, Shusterman notes that “the authors of the Bill of Rights were not concerned with an “individual” or “personal” right to bear arms.”
The purpose of the Second Amendment is highly contentious. Some may disagree with Shusterman’s analysis. But, I think it is a strong argument to say that the militia mentioned in the Second Amendment was not for the purpose of fighting off a standing federal army, but rather to be its replacement.
https://www.washingtonpost.com/news/made-by-history/wp/2018/02/22/what-the-second-amendment-really-meant-to-the-founders/?utm_term=.54814bf55313
My understanding and reading of history is exactly the same as stated here. Shusterman is right on point. I have covered this part of history pretty well in my reading, on Madison, on the Constitution, the ratification in 12 states and later the creation of the bill of rights. I have seen nothing that indicated people were concerned with guns or being prevented from getting guns or that any action was taken to remove guns. It was just not a concern to anyone I know of. The issue of the day was the fear of a standing army and Madison knew this better than anyone. He wanted to get that task of creating the bill of rights done and out of the way. The federalist did not want the anti-federalists going off and opening another convention to make changes to the Constitution. He wanted to make them happy and to shut up. That is the reason for the Bill of Rights and nothing else.
So read that second amendment as it ended up after some editing. It is reassuring the anti-federalists that a militia is good and of course they need guns to be a prepared militia. The militia was called up once that I recall and that was the whiskey rebellion later during Washington’s second term. There was no standing army to call on because that was still a dirty word.
Article 1, Section 8 of the constitution gives Congress [i.e. the federal government] the authority
“15. To call up the Militia to execute the laws of the Union, suppress Insurrections [such as the Whiskey Rebellion, mentioned above] and repel Invasions;
16. To provide for organizing, arming and disciplining the Militia, and for governing such part of them as may be employed in the service of the United states, reserving to the States respectively the appointment of officers and the authority of training the Militia according to the discipline prescribed by Congress.”
In other words, the Federal government is OVER the Militia and is authorized to use it to [among other things] suppress rebellions. How can it also be true that the purpose of the Militia is to rebel against the government? Did the framers intend the Militia to both make rebellion possible AND to suppress it?
“When the shootings in Florida took place, I hesitantly suggested that perhaps this would might mark a turning point in America’s attitude toward guns. And indeed, the demonstrations by young people, which greatly heartened me, made me think that maybe something will happen”
You need to realize that this was not a massive grass roots outpouring, it was highly organized with deep pocket financing, and top tier PR houses in charge of projecting the image (astroturfing).
I don’t want to annoy Jerry by putting links on the site, but if anyone wants to see all the deep pocket roots of these ‘popular’ demonstrations, Daniel Greenfield has a well documented blog post.
So who were all those people out on the streets?
Soros lackeys, all of us. I’m still waiting for my check!
Do you realize how much money was spent on organizing, transporting, and setting up these demonstrations? Hundreds of buses, crowd facilities, speaker and sound facilities, publicity, etc.
Whether you support the point or not, this was no small deal. People certainly have the right to voice this opinion. However to believe this all happened in such a highly organized manner because a bunch of kids got really upset strains credibility.
PS
Compare this to the anti war demonstrations of the 60s and early 70s which were NOT choreographed by adults and supported by organizational money.
Assuming what you say is true (which I don’t), how does that qualify the case being made by these young people and their activities (whom I unreservedly admire)?
It just seems to be a genetic fallacy, in a way. Grant the premise: So the “kids” have support. Big deal, and good for them for getting it! It takes all kinds to change society in profound ways.
If I google “who funded the march for our lives” the top three stories, at the time I write this reply to you, are from NPR, Snopes, and the Washington Post.
NPR reports that some part of the march was paid for by crowdfunding, raised through the March for Our Lives non-profit, but the bulk of the money raised was through Oprah Winfrey, George Clooney, and several other large donors primarily from a Hollywood circle of supporters. 40,000 donations were received, nearly all under $1000. $3.5M was expended for the march, several million more remains available for lobbying.
(I expected that it was funded primarily through rich, left-leaning individuals)
Snopes reports that George Soros did not pay attendees $300 to march. He may have paid some attendees that and other amounts to participate as street teams, solicited through Craigslist ads by event organizers to sell merchandise on the streets with an additional 20% commission. He offered some other unknown number of attendees $50 to cover travel and food expenses for the day. The point is he did not pay all attendees $300 to attend; he did pay some unknown number $50 to attend.
(Soros is not as large a boogeyman as thought and capitalism is alive and well.)
The Washington Post reports that a random sampling of 1745 march attendees in several cities on the day of the march was taken to gather demographic and other information. 70% of the attendees were women. They average age of attendee was 49. 10% were under 18 years of age. 26% of those surveyed had not attended a protest or similar event before. 89% had voted for Clinton. 16% were either moderate or conservative by self-description. 72% had a Bachelors degree or higher. The general conclusion was that the event did not attract an appreciable relative number of students, was attended more by white, white collar, college educated adults who were previously involved in other protests, and attendees reported they were motivated to attend due to inaction to curb gun violence and a dislike of President Trump more than a desire to restrict gun ownership.
(I did not expect those results based upon the media reporting I’ve seen, primarily from CNN, which focused on the student activism as the largest driver with high numbers of participants. I’m disappointed in them for skewing the reporting – I’d rather have the unbiased truth.)
jay: is this the Greenfield post you’re referencing? https://freedomoutpost.com/runs-march-lives/
I don’t know anything about Greenfield, and the ONE reference that PolitiFact uses to hold him as “100% Pants on Fire” doesn’t seem like much of a sample.
But just reading the linked article, I must say that I’m way underimpressed. Looks like non-stop innuendo, without any cogent argument about HOW these supposed links function to rob the movement of its legitimacy.
Straight outta the fever swamp, the same swamp that photoshopped a copy of the constitution onto the practice target that Emma Gonzalez tore up.
I doubt Jerry would mind you providing one reliable source, if you’ve got one, that is.
I’m so happy there were ten posts before someone started into the conspiracy theories!
We’re through the looking glass here people.
You samplin’ Jim Garrison? 🙂
I think the thing that most irritates me about such as Jay is the eagerness with which they seize on the possibility that some nefarious person might have been supporting, with money!, things that they dislike, while remaining carefully oblivious of the activities of certain American billionaires whose names one need not mention who have ben funding extreme right-wing politics and the destruction of American democracy for a number of years now, not to mention the NRA, who now, it appears, was a useful conduit whereby Russian money was funnelled to interested parties (or one of them) before and during the last presidential election. The most charitable assumption about such as jay is that they are stupid to notice their own hypocrisy.
It wasn’t until 220 years after the Constitution was ratified, in the Heller case, that the Court first held that 2A guaranteed an individual right to firearm possession. And it wasn’t until two years after that, in McDonald v. City of Chicago, that SCOTUS first held that the Second Amendment (which, like the others in the Bill of Rights, was meant solely as a limitation of federal power) was incorporated through the 14th Amendment to apply to state restrictions on firearms. This is an odd way of doing constitutional interpretation, and more generally of doing American jurisprudence, and (as Mr. Wills demonstrates in the linked NYRB piece) resulted from some tendentious research and analysis done by a group of “law-office historians.”
Chances are nil of seeing the Second Amendment repealed in our lifetimes. And if a change in Court membership were to result in a 5-4 decision returning us to the status quo ante before Heller and McDonald, the nation might well have civil unrest on its hands. But Heller does not foreclose reasonable firearm regulation, as Scalia himself noted in his opinion for the Court, and reasonable regulation seems a worthy interim goal.
I must admit to feeling jaded and cynical about the prospects for meaningful regulation, following tragedy after tragedy with no movement at all. Almost in spite myself, however, I feeling the first inklings of encouragement in the poised, hip, articulate teenagers who’ve come forward in the wake of the Parkland massacre.
Yes. It is interesting that, when they interpret the 2A, the “orginalists” on SCOTUS put aside the fact that the Bill of Rights was originally intended to protect the States from an overbearing Federal government. Fear that the new Federal government could enfeeble the States by limiting their ability to raise armed militias was clearly the main factor motivating the 2A.
Right, the issue is whether the Second Amendment actually changed that?
There is no question the federal government had complete regulatory power over the state militias as originally written in the Constitution. This is what Article I Section 8 did.
So the question is: did the founders right away remove a power granted to the federal government? THat’s not what ANY of the other amendments did. They merely explicitly stated a power that wasn’t explicitly granted to the federal government.
Mason tried to get this power removed when he proposed a change to Article I Section 8 that would included language requiring the federal government to arm the militias. But that was rejected.
So was the Second Amendment just another way of stating that and actually removed a regulatory power granted to the federal government? Or was the Second Amendment another way of arming the militia by explicitly stating a power that was granted to the federal government, i.e. the right to regulate the private arms of those that would make up the militia?
Your fear that if there was substantive gun reform, such as restoring the ban on assault rifles, could result in civil unrest is well founded. In effect, the gun lobby is blackmailing the nation. Implicit in its propaganda is the warning that its horde of followers are just itching to be unleashed if they sense even the slightest whiff that their guns may be taken away from them. This group is relatively small in number, but more than large enough to create chaos.
There is a good discussion of the Heller decision in Charlie Pierce’s column today. He points out that Scalia’s writing leaves plenty of room for legislative action on gun control without Constitutional conflict.
The article is here:
https://www.esquire.com/news-politics/politics/
I don’t think the outcry against gun control is going to subside anytime soon. At the March in South Bend, Indiana last Saturday, A high school girl spoke about the school going on lockdown because a threat was received. This girl, and hundreds of other kids in the school had to sit silently under their desks in a darkened room for over an hour. I doubt that any kid who has experienced anything like that is going to forget about it. So, you don’t have to actually experience an actual shooting to taste the fear. As time goes on, more and ,ore students will have that experience. Even the kids who don’t have to go through a lockdown do have lockdown drills. Experiences like that must concentrate the mind, I think.
At the same time, I’ve noticed a lot of approval of the protests, even though this area is very conservative. We may have reached a tipping point.
I don’t think the NRA has fully grokked the visceral negative advertising these “active shooter drills” serve as for everyone at the school and their loved ones.
My own view has shifted over time. I now think that the intransigence of right wing ammo-sexuals in the face the never-ending slaughter of Americans will inevitably lead to the elimination of the 2nd Amendment. Only a quarter of American adults own a gun and the gun-nuts are a noisy subset of that. If we can’t get sensible gun laws enabled, eventually the 2nd will go. But maybe not in my lifetime.
I must bow before your fearsome logic. Unable to muster any response, I have decided that I must immediately open my locked safe, remove all of the unloaded guns, trigger locks and all, and turn them in to my local police.
Where they’ll be safe… http://www.latimes.com/local/lanow/la-me-gardenapolice-guns-dealing-20180326-story.html
You could just destroy your guns. I would never give them to the police. I did not know that was even a ‘thing’.
Gun buy-backs are a thing here in the U.S., and they’re usually run through police departments. And I think that other countries have administered their programs in the same way, but I don’t have time to research it at the moment.
And I could also destroy my motorcycles, my violas and violins, my socks, my underwear…but why would I do such a thing?
How ’bout we apply a similar level of regulation to the guns as we do to your bike?
Sold! Um…Ken, are you serious? You want to make it as easy to get a CCW permit as it is to get a vehicle operator’s license? And you want reciprocal carry laws in all 50 states, just like vehicle licenses? And NEVER get a law that says that the manufacturer can be sued for criminal use by third parties?
You sound like an unreconstructed libertarian with that suggestion.
How about registration, licensing, training, mandatory testing, and taxes to offset some of the costs borne by society?
Again, sold. Of course, here in California, we already have most of that. All of it, for a CCW permit. Although I’m wary of the “taxes” part, for the reasons already expressed with reference to *McCulloch v. Maryland*.
Oh, and mandatory liability insurance.
That’s an argument for police reform, not against buy-back programs. IIRC, when Australia de-armed it was done through a massive – and successful – buy-back program.
But it sure as hell might be a good argument for not having your buy-back program run by the police.
Look at what happened during both Prohibition and now The War on Some Drugs. It gave police the opportunity to murder their business competitors, steal their product and sell it as their own. Many police were (are) too principled to have anything to do with this. Many are not.
And of course, by “police” I don’t just mean local cops. I mean the entire police power of the U.S. and all its subsidiaries. Notably the CIA and the DEA.
I think the Constitutional emphasis on gun control is misplaced. There is ample room for meaningful gun control legislation that should pass 2A muster. Let’s worry about the difficult question of Constitutional Amendment after we exhaust those possibilities. The obstacles to this approach are more political than Constitutional.
The argument falls apart on two fronts:
1) The constitution isn’t just for “right now”, but for the long term. Right now, we may not need such militias. Can you say that we’ll never need them?
2) We should not be in the habits of abolishing rights. Abolishing a right is something that should only be done under the most extreme circumstances.
School shootings, as terrible as they are, are one of the least likely causes of death in the country.
1) We’ve got militias up and ready to go any time we need them. They’re called the “National Guard.” They get to keep all the guns they need in their armories.
2) How about the individual right to own slaves, or the right of a husband to control his wife’s property, or the right of parents to send their kids off to sweatshops? You good with the abolishment those?
Ken–aren’t you a lawyer? The National Guard is only part of the militia. (Of course, this is just the federal definition; who knows what the many states provide…)
U.S. Code › Title 10 › Subtitle A › Part I › Chapter 12 › § 246
10 U.S. Code § 246 – Militia: composition and classes
US Code
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are-
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
(Aug. 10, 1956, ch. 1041, 70A Stat. 14, § 311; Pub. L. 85-861, § 1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103-160, div. A, title V, § 524(a), Nov. 30, 1993, 107 Stat. 1656; renumbered § 246, Pub. L. 114-328, div. A, title XII, § 1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.)
LII has no control over and does not endorse any external Internet site that contains links to or references LII.
SOURCE: https://www.law.cornell.edu/uscode/text/10/246
10 U.S. Code § 246 – Militia: composition and classes
LAW.CORNELL.EDU
I guess you can compose all you want but who are the unorganized militia? All citizens? And also, how you define the national guard today as militia, is a bit of a stretch. They are mostly funded by the feds. They join up totally voluntarily and then have to go to 6 months training just like someone who joins the regular military. Hey, the weapons they use are not in the home. Never are they in the home. The guard is under control of the governor of the states unless they are called up by the President. Then they are no longer militia, they are part of the regular military. The only thing the governor uses the guard for is to do things like flood duty or riot control or fight fires. Otherwise they have regular jobs in the community and only drill one weekend a month and then two weeks camp in the summer.
“…but who are the unorganized militia?”
Read it again. It’s all there, in B&W.
My comment was in response to DW’s assertion that we shouldn’t abandon militias, since someday we may need them. My point was that we haven’t.
In any event, a statute, particularly a subsequently enacted one, does not control the language of the Constitution. I thought you were a lawyer, too.
“In any event, a statute…”
Of course it doesn’t control the Constitution. But since the Constitution does not otherwise define “the militia,” and since the referenced statute doesn’t contradict Article I, Section 8, Clauses 15-16, the statute will serve just fine. Do you disagree?
I’ve not argued (here, or anywhere else) that we should abrogate “militias” as that term is used in the Constitution. The question is (or should be, anyway) whether there is individual right to gun ownership wholly apart from the need to raise a militia.
Assuming for the sake of argument that individual gun ownership was necessary to the raising of some forms of militia at the time the Bill of Rights was ratified, is it your position that that particular understanding of “militia” is somehow frozen in amber in the language of the Second Amendment?
“…is it your position that that particular understanding of “militia” is somehow frozen in amber in the language of the Second Amendment?”
Of course not. But since I don’t take the position that the 2nd A. as an individual right is in any way dependent on a militia, what my “particular understanding of ‘militia’ is,” is irrelevant.
Militias are value-neutral. They are as likely to help impose evil as they are to fight it.
Trump resides over the worst government the US has ever had, yet a majority of ammosexuals support his criminal regime.
I have to ask: exactly how many of these “ammosexuals” do you know? And can you offer a workable definition? You know–so that I can figure out if I am one? Because I’d sure like to know if I’m supposed to lay off my non-stop calumny toward His Orange Shitheadedness, and start “support[ing] his criminal regime.”
ammosexual (plural ammosexuals)
(US, slang, derogatory) A person obsessed with owning guns; a zealous supporter of the right to bear arms.
2014 June 5, GOP_Decline_and_Fall [username], “Re: Forget gun control: New plan is to stop mass shootings”, in alt.politics.liberalism, Usenet[1]:
Ammosexuals are very protective of their fetish, and attack even the slightest gun safety measure on the grounds that they interfere with their pleasure.
I guess you mean contumely? Or are you lying about Trump all the time?
Contumely it is–good catch. Damn, I’ve been using “calumny” wrong for years. It’s always good to learn something new…
A sign in the NRA headquarters front lobby quotes the 2nd half of the 2nd amendment, but not the first half.
More dishonestly, they have a sign with the photos of 8 US presidents who were NRA members including George Bush, Sr., while not mentioning that he resigned from the NRA after LaPierre’s statement referring to federal agents as jack-booted Nazi thugs.
I post here BOTH the NRA poster, and a poster with what George Bush Sr. said
http://winstondorian.files.wordpress.com/2011/02/8-presidents-nra-members.jpg
http://us-east-1.tchyn.io/snopes-production/uploads/2013/01/bushnra1.jpg?w=640
The NRA used to be an educational association only, dedicated to teaching the safe use of firearms. They still serve a useful purpose on that front. They are now heavily involved in lobbying for gun manufacturers which is a lot different from their mission when Grant, Roosevelt, Taft, Ike, Kennedy or Nixon were in office. Kennedy being shot is what got mail order rifles banned. The NRA supported the move. Is there even a shred of a chance that they would do so today?
Probably not, but that may be a reflection of the overall polarization of U.S. society on any number of levels. (After all, the NRA also has a constituency that it must serve–does anyone REALLY believe that all NRA positions are conceived “from the top down,” and jammed down the throats of the general membership?)
Moreover, we can laugh all we like at the “camel’s nose under the tent” paranoia, but just how paranoid is it? Many of the marchers want ALL guns banned; so do many on this site.
And that is rather the nature of government, anyway. Case in point: many years ago, a seat-belt law was sold here in California with the promise that failure-to-use would ALWAYS be an ancillary charge only, IF the police had probable cause to pull you over for an unrelated infraction. It would NEVER be a stand-alone charge. This lie was necessary, because the legislation would never have passed without it. And enough people were stupid enough to believe it… Fast-forward a few years, and the law was changed to make it a stand-alone infraction.
Now, personally, I wouldn’t go to the end of the driveway without a seat belt (or without a motorcycle helmet on, in parallel circumstances). I don’t need laws like that as a substitute for “Freakonomics.”
But that’s not the point. The point is that the slope is always slippery, and the camel WILL press its advantage. So maybe the NRA’s intransigence can be understood.
Slippery slopes go both ways. AR15-class weapons are at least one slide too far in the NRA’a absolutist direction.
I’ve got $5 that says that you can’t define “AR15-class weapons” in any useful way. Those who have tried have come up with useless clusterfucks like 1994’s H.R. 4296–the so-called “Public Safety and Recreational Firearms Use Protection Act.”
Was my Yugoslavian NOS SKS an “AR15-class weapon”? And, whether yes or no…why?
It’s not for me to make the definition, it’s up to lawmakers. Experts like you can probably help a lot!
Just because a prohibition is imperfect doesn’t mean you shouldn’t make a law. Defining terms in contracts and laws is often the hardest part.
I favor erring on the side of banning more, rather than fewer weapons to be safer since it’s so complicated.
Why is your slippery-slope argument any more persuasive than the opposite one: if we permit individual ownership of AR-15s, how about .50 cal machine guns and rocket-launchers and — why not? (especially if the purpose of 2A is to forestall overreach by the feds, who already have ’em) — an F-16 in a hangar behind the house?
I’m no more a fan of the indiscriminate use of slippery-slope arguments, than I am the indiscriminate use of firepower.
Because we already have laws banning those things and Court precedent saying those things can be banned. So it’s less of a slippery slope when the Court has already ruled on it.
And an F-16 is not an “arm” by any concept of the word. So I’m not sure why allowing somebody to own a gun that isn’t used by the military, would lead to somebody being allowed to own a fighter aircraft. That’s not even part of the slope.
The Pentagon and State Department consider F-16s “arms”; they were part of the US’s recent “arms-sale package” to Bahrain. Indeed, as Gary Wills demonstrates in the NYRB piece linked to by our host, “to bear arms” had strictly a military meaning at the time the 2A was ratified (and, thus, could not have been understood to have conferred an individual right to gun ownership apart from militia service).
Anyway, your argument is pure question-begging. Statutes and lower-court opinions present no bar to a dispositive interpretation of the Second Amendment by the Supreme Court. Accordingly, such laws and opinions provide no foothold on the slippery slope.
Ken, besides what Bob wrote, I’m not MAKING that slippery slope argument. I’m simply pointing out that the reaction of “the NRA,” to the extent that that entity is so monolithic, is not irrational, in the recent historical context.
“Many of the marchers want ALL guns banned; so do many on this site”. So, what on earth is wrong with that Brujo? It doesn’t seem to hurt other countries does it? You know, like every other developed country in the world?
You cannot seriously believe that reducing the number of guns in circulation would not reduce gun homicides, you are kidding yourself mate if you do. What’s more, you know as much if you’re honest. All this nonsense, the endless arguing about a part of the constitution drafted in VERY different times is pathetic, it really is. And I don’t intend that to be pejorative, I mean it in the literal sense; it’s deserving of pity.
Yes you, and others, like guns, yeah, they make you feel powerful and protected, but those feelings are not founded on sound facts, and have devastating consequences for society. I’m sure you are fully aware that, with your own gun, you’re far more likely to kill yourself or a member of your family than an intruder or attacker.
To quote Jim Jeffries, gun enthusiasts have one argument: “Fuck Off, I like guns!”. Security and protection are often quoted as reasons for owning a gun, but you don’t see many gun enthusiasts travelling the country to security door conventions – “look at the layered, tempered steel on this door, wow look at the 5-lever mortice lock, it’s so secure, I love it”. Of course, any responsible gun owner keeps their weapon in a safe – good luck getting that unlocked when some punk is in your bedroom at 3AM demanding your jewellery.
To borrow more from Jim Jeffries – the argument that only the bad guys will have guns if they are banned doesn’t stand up to scrutiny, especially regarding these mass shooter incidents. Try buying two semi auto rifles, and thousands of rounds of ammo when you are a shy awkward kid with a personality disorder. Can you imagine any of the mass shooters we have seen recently saving up 40k, setting up a meeting with some gangsters and then going down to buy the guns at a warehouse by the docks?
I am not a legal scholar, but any unbiased and rational individual would look at the 2nd Amendment and decide that the right to bear arms is conditional on there being a well-regulated militia. There’s also the very relevant point that what might have been useful to a militia in 1791, would be utterly pointless now – personal firearms tend to be ineffective against hellfire missiles and high-altitude drones.
It’s obvious to any impartial observer that the second amendment was meant for another time. Furthermore, anyone who thinks the founding fathers would be anything less than utterly horrified at the current state of gun violence in the US is kidding themselves, and they know it; the current situation was not their intention.
Why any private citizen should own a gun capable of mass murder is truly beyond me. Yes, you like guns, yes, they make you feel better and safer, but at what cost to the mental and physical well-being of other citizens? Believing in and practicing your ‘right’ to bear arms is absurd, childish and thoroughly antisocial. It’s the ultimate act of selfishness in a modern society.
Hey, wetherjeff…NICE “Gish Gallop”!
Thanks, I have no idea what that means, but I will accept your compliment with good will and kind regards. Cheers!
https://rationalwiki.org/wiki/Gish_Gallop.
I actually had the chance to watch Gish do it in person, many years ago. The Ventura County Freethinkers co-sponsored a debate between him and…maybe Michael Shermer? It was at a local fundamentalist church, and for every one of us there were ten of them. I was working stage security just in case someone got a bit too worked up over it.
The amazing thing to me was that Gish’s scatter-gun approach was liberally laced with points that he had previously been forced to recant.
‘that may be a reflection of the overall polarization of U.S. society on any number of levels.’ The question I want ask BF is to what extent the polarisation he talks of so readily is merely and somehow innocuously ‘reflected’ in the NRA’s ‘change of attitude, or does the NRA’s change of attitude actually, and it may be deliberately, constitute in part this polarisation? The way BF words it, it seems that first of all there is, deep down in society and imperceptible (God moves in mysterious ways), a ‘polarisation’, and then various things and institutions such as the NRA begin, for some never established cause, to ‘reflect’ it. It’s all very mysterious.
Point taken; I’m sure that there’s a positive feedback effect, as happens in any echo chamber. Like this one.
Don’t misunderstand me–I hold no brief for the NRA. I find some of their positions wrong and others quite counter-productive. But they are, after all, selling a product. Sure, like any seller, they put out misleading advertising to make their customers *want* that product. But in the end, if they could make more money selling a different product, they’d do it.
Well, I’m glad the point was taken, at least up to a point, so to speak. But then you say this: ‘they are, after all, selling a product’. I am sorry to say this, but I find the blindness, the unrecognised cynicism, and – forgive me for saying this – the American-ness of this claim appalling. (I honestly cannot think of any country other than the USA in which such a claim would be advanced as a sort of knock-down argument.)As though ‘selling a product’ trumps everything, including the lives of people who would not have died if the products had not been sold. Drug-dealers and whore-masters, too, are selling ‘products’ of a sort. ‘Positive feedback’ be damned: the polarisation of American society has been sought intentionally by a number of powerful institutions on the right, and the NRA — so that it may ‘sell its products’ — has been one of them: up to its bloody neck in it.
That first poster quoted is self-evident bullshit. “Presidents whose personal commitment to second-amendment freedom led them to join the NRA”.
I’m damn sure that most of those presidents joined the NRA for other reasons than that one; and in most of their cases it was before the NRA became toxic. Quoting them in support of the current organisation or its policies is misrepresentation. And of course it ignores Bush Senior’s resignation.
cr
Guns will only go away if new technology makes their value and function significantly diminished. By value, I mean entertainment and security.
Guns are very much like religion. I see young kids walking away from religion because they know it’s boring and useless, not because of critical thinking. Religion is not going to be defeated by reason but by people recognizing that we only have a limited amount of disposable time.
Ask any kid (11-18) what they would do if they had $1000 to spend. I wonder how many today would spend it on a gun. Guns are dying because they can’t compete. Just like religion.
Isn’t seeing something as “boring and useless” also critical thinking? That said, I certainly hope you are right about kids moving away from guns.
Deciding something is useless is practically the definition of critical thinking.
https://heyjackass.com/
Data on Chicago’s gun problem. I doubt (m)any of these were purchased legally; not to suggest something ought not be done, just not entirely sure what. These are teens and young twenty-somethings surrounded by a culture that portrays guns and gun violence as somehow being what young blacks are supposed to aspire to. Frustrating when I see the students I work with in a suburban public high school with opportunities all around them choosing to instead cling to the pop culture media version of what young black boys and men are “supposed” to be. Some of them just might use part of the $1000 Kevin mentioned to buy a gun…
True. Some would buy the guns. But a young man who wants a gun is like Hester Prynne. If they had the opportunity to move to go to another village then there would be no desire to buy a gun and Hester would have had her kid without prejudice.
There is a further aspect to gun control which is conjecture on my part really, but I’d like to raise it:
One reason Latin America has such problems with lawlessness is the narcotics trade, which can only be engaged in if one has powerful weapons with which to attack rivals and Police/Army. A significant proportion of the guns floating around Brazil, for example, where I used to live, originate from the USA.
It seems reasonable to ask whether gun control in the United States might logically result in 1) reduced numbers of guns making their way south to Latin America ; and, 2)reduced quantities of drugs making their way north to the US.
I don’t see that we can get rid of 2A by reinterpreting the language. How about getting rid of it because it is simply a bad idea. Bring back rational decision-making!
That said, I know that there’s not the will to repeal 2A. Instead, enact proper gun control, gather some statistics for a few years, and see what happens. Assuming it is implemented properly, we should see a reduction in gun-related deaths which may encourage people to take even greater steps.
That is the correct course to take. Forget about 2A and just do it.
The 5-4 Supreme Court decision on Heller, written by the odious Justice Scalia, should bring a related issue forcefully to mind: the odious action of pop-Left hobbyists, such as the Green Partiers, in helping elect Republican presidents who appoint Supreme Court justices like Scalia.
Passing and enforcing firearms restrictions akin to what the UK has is a pipe dream. Read Sam Harris’s “Riddle of the Gun” to understand why.
We need a practical solution to this problem, and taking 300 million guns away from fanatics isn’t going to work. It’s too late.
Almost certainly that’s the way it’ll pan out.
I’ve not been keeping count – is the average still running at a mass shooting every 60 hours? Or have the gun nuts decided to try to exercise a touch of self-control for a few weeks?
“Or have the gun nuts decided to try to exercise a touch of self-control for a few weeks?”
Well, Aidan, this gun nut has been “exercis[ing] a touch of self-control for near-sixty years now. I suppose that a few more weeks can’t hurt.
Why is it that the people who refuse to enact laws to keep guns out of schools go to extraordinary lengths to keeps weapons out of their work place. Instead of arming teachers, let’s arm reps and senetors and get rid of their security.
Lead by example.
I somewhat disagree. Gun manufacturers (via the NRA) would simply start sending campaign funding to state races, buying state legislators in order to prevent state and local ordinances from cropping up.
I think a better (and probably more socially acceptable) way to solve the issue is to enact campaign finance reform (which might also require an amendment). After all, a large majority of Americans favor many proposed gun control measures. Absent a special interest pouring money into their coffers, I’d expect a fairly large majority of House and Senate members to pass laws favored by their constituents.
“Gun manufacturers (via the NRA) would simply start sending campaign funding to state races…”
What is your factual basis for this claim? WHAT “funding”? Didn’t you hear–Remington just filed for BK; other manufacturers have been devastated by plummeting sales as well, because of the election of His Orange Shitheadedness.
The NRA has 5 million *individual* members, many of whom are quite willing to contribute to political races on their own. And what do you think it is that moves them to get out their checkbooks?
This funding. About $61M in declared political spending during the last election cycle. Here’s a breakdown of contributions by candidates.
I somewhat wonder how many of those members are life members and how many have renewed. I noticed on a CPAC picture that life membership was only $600, which isn’t really a big number compared to some I’ve seen. Might be interesting to see what the renewal rate is.
I don’t know. When I became a Life Member back in the early ’80s, I think that it was $300. No question but that they’ve spent way more since on the postage alone to send me my monthly “American Rifleman.” And since I won’t support them monetarily anymore, I’m just a financial dead weight.
My point is, that you are counted as agreeing with their agenda whether you do or not. Not unusual by groups but still. So when they say “our five million members”, many of them may not be much engaged. There is certainly a number much larger than zero who are but it would be interesting to know how many there are. It’s a big step for most people from belonging to activism.
Both the 1st and 2nd amendment cause societal headaches. The speech clause of the 1st protects Nazis and other despicable creatures. The free exercise clause of th3 1st can make religion more prominent in the public square than the establishment clause seems to allow. Tension.
The second is hard to parse. One locally relevant aspect if we are to stand for free speech as unalienable regardless of outcome, the same applies to guns. Consistency demands it.
I’m all for handguns for self protection and shotguns for hunting as a matter of pragmatics. We need to encourage feral pig hunting in the US. Subsidize it as a matter of ecological conservation. Hunting of other species where natural predators have been reduced should be managed smartly. Beyond that, handguns should be allowed, maybe even concealed carry across states, but stand your ground curtailed or eliminated.
Here’s where it gets ugly. People should be limited to a small number of guns, ammo capacity, and type. Again shotguns and handguns OK as types, but high accuracy sniper and assault type rifles easily converted to auto totally banned. Full stop. People who want arsenals strike me as the ones we should worry about.
Gun ownership should be allowed but strictly regulated with a crapload of safeguards as to registration, training/education requirements, and red flagging people with dangerous tendencies.
If the gun nuts can’t agree to reasonable limits as I detail above, then I say scrap the 2nd amendment then and ban guns altogether.
And arming teachers is pure frickin’ crazy talk by gun advocates who want guns everywhere. At some point we are all armed and open carry and have guns drawn on each other in a tit for tat mutually assured destruction outcome. Good for gun and ammo sales.
Santorium is a shill! CPR? Really! Is that all the gun nutters got?
Am I more dangerous owning twenty or thirty guns than I would be with two or three?
I have a pretty large gun collection, largely as a result of both my father and grandfather collecting guns. Surprisingly, none of us have ever been involved in a deliberate or accidental shooting, or been in any legal trouble whatever.
I guess the ammo quantity restriction you propose is along the same lines. Do you believe that the number of rounds of ammo a person owns continues to increase their danger to society on some sort of infinite curve?
Rifles easily converted to full auto are already banned.
I guess my main point is that it seems like scapegoating. There are serious societal problems with violence. But most of the proposed solutions seem directed at punishing those of us who are not part of the problem. That is why we are pushing back. Not because we do not recognize the issues, or that we don’t care. Instead, I think it is more a case of knowing enough about existing gun laws and enforcement to understand that the proposed laws are very unlikely to solve the problems that they are supposed to address.
An excellent book on this subject is Michael Waldman’s “The Second Amendment: A Biography” published in 2014.
When someone tells me that they need a weapon to protect themselves and their family, I always ask them what Well Regulated Militia they belong to.
Has the US ever had a “constitutional convention” (beyond the first), which I understand is another way to do an amendment?
Not so. The seven year time limit is a convention, not a legal requirement, that was introduced in 1917 with the eighteenth (prohibition) amendment. Since that time, the twentieth, twenty-first, and twenty-second amendments had a similar provision, as did, as PCC noted, the unsuccessful Equal Rights Amendment.
This may have been inspired by the first two articles of the Bill of Rights, which did not get ratified along with articles two through twelve* to become the first ten amendments. Article one, the Congressional Apportionment Amendment**, was proposed along with the other eleven articles of the Bill of Rights on 25 September 1789. Article two, which prohibits any law that increases or decreases the salary of members of congress from taking effect until the start of the next set of terms of office for representatives, was finally ratified as the twenty-seventh amendment on 5 May 1992, a period of 202 years, 7 months, and 10 days.
Of the amendments ratified in the twentieth century, the nineteenth, twenty-third, twenty-fourth, twenty-fifth and twenty-sixth did not have a ratification time limit in them.
The time limit, which is not fixed at seven years except as a convention, only applies if that limit is included within the text of the proposed amendment. Congress may amend the proposal to extend the time limit.
This is what happened with the ERA; originally given an expiration of seven years, the proposal was amended to extend this limit. Although this extension was established as 30 June 1982, the length of the extension was not included in the amended text of the ERA, so it is possible to legally construe it as still pending and it could still be ratified.
*Had it not been for this lack of ratification, the Bill of Rights would have contained twelve amendments, not ten, the first two of which would have dealt with the mechanics of the US Congress. It also is a bit of a hit to people who place some special significance to the placement of the first and second amendments, since freedom of speech, press, religion, assembly and redress would have been the third and the almighty second would have been fourth.
**We can be grateful that this amendment is still pending, since it apportions one representative per 50,000 population, which would give us a House of Representatives with 6,174 members after the 2010 census.