Second Amendment

[severin]

Danish Dynamite - the term 'frontier mentality' comes to mind. And of course, thos naughty Canadians could invade at any moment.

 

[Suddenly]

To quote the ruling, "''n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''

How is that not a default ruling? They didn't have any evidence to consider because MIller never presented any. If Miller had presented valid evidence that such a shotgun was currently in use by some militias (which he certainly could have had he showed up), then why would the court not have ruled in his favor?

It is not a default ruling because in a defult ruling there would be no opinion. They would simply say that the other side wins. You are confusing default, which is a term of art, with the general complaint that the presentation of his case was harmed by his failure to have counsel (remember the co-defendant?), and as I pointed out you are possibly right on that point.

You are overetimating the significance though. The lack of evidence only affects this particular case, and has nothing to do with the point of law. The point of law drawn from this case is that: For the second amendment to apply, the ownership must have "some reasonable relationship to the preservation or efficiency of a well- regulated militia," and one aspect of that relationship relates to the type of weapon.

That is the whole point of law. What is not a point of law is the following: A "shotgun having a barrel of less than 18 inches in length" is not a type of weapon used in a militia.

The significance of the lack of evidence language is that in this case there is no basis on which to find that such a gun is of that type. Look at the last sentence, the part about "Judicial Notice." What that means is that such a fact is not so obvious that it can be assumed by the court. If in a later case the defendant can show such a gun is used for militia purposes, the outcome would be different. (Save the "innocent until proven guilty" argument that popped into your head. That applies only to elements of a crime. In this circumstance they are arguing the constitutionality of a statute, and the burdens are not the same.)

I addressed what would happen if Miller would have been able to produce such evidence in my earlier post. The court would have then continued the analysis and maybe made a more definitive statement of law. It does not mean he would have won. But even if he did win, the point of law wouldn't change, just the outcome. When assessing the legal effect of an appellate opinion (which I often have occasion to do) the reasoning of the court behind the decision is far more important than who wins.

Notice also that the court did not rule that only militias can keep and bear arms. They did not rule that the Second Amendment is a collective right rather than an individual right. They only said that the kind of arms that the people can keep and bear should be the kind used by a militia. How can this not be interpreted as an acknowledgment that the Second Amendment protects individual rights. As AS already pointed out, this ruling would seem to make bans on assault rifles unconstitutional.

They never really got to the issues you mention because they didn't need to. If the shotgun question was answered differently, they may have. They stated a general principle that for the second amendment to apply, the weapons must have a reasonable relationship to a well regulated militia. However, since they are not of a type where that is possible, they went no further. From above:

"''n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

They are saying that to satisfy proposition "A" (having some reasonable relationship to the preservation or efficiency of a well- regulated militia) one must show element "B" (the weapon in question is of a type that is commonly used in a militia).

In other words, If not B then not A, as B is a necessary condition for A.

The court never said B was the only necessary condition for A, just that it was necessary. They had no need to get into any other necessary conditions, so the question was left unanswered.

Taking "If not B than not A" to mean "If B then A" is a false contrapositive. There can be other necessary conditions for A.

So, saying that Miller holds that: If the weapon is of a type used in a militia then it "has some reasonable relationship to the preservation or efficiency of a well- regulated militia" is a false contrapositive, As Miller actualy says that if the weapon is not of that type, it does not have a reasonable relationship...

Miller neither establishes nor does it preclude additional necessary conditions. They never got that far.

 

[Tony]

AmateurScientist:No, but that is because freedom of speech is fundamental to democracy. The freedom to own a particular type of technology is not.

Owning a snow cone machine isn’t fundamental to democracy either, does that mean we should not have the right to own them? I don’t get it, where does this absurd idea that rights should be dependant on whether they are "fundamental to democracy" or not come from?

Because they provide additional reasons why this anachronistic right should be done away with.

No they don’t. That's like saying 911 provided additional reasons to do away with certain civil liberties.

The right to bear arms is not essential to a democracy (or a constitutionally limited republic, before a pedantic comes along). Hell, even the existence of a constitution is not required.

Lets just do away with everything that isn’t "essential to a democracy".

I can perhaps understand how this right was included in the US Constitution, given how the US had to wrest independence from a colonial power. However, I don't see how you can think there are still "sound modern reasons" for this right. The idea that an armed population could make one whit of difference if the men and women of the military somehow decided to be a tool of oppression against the citizenry, is ludicrous.

This is just dumb. I think the idea of you being able to defend yourself against a gang of thugs is ludicrous. Therefore, lets cut off your arms.

 

[Tony]

Danish Dynamite - the term 'frontier mentality' comes to mind. And of course, thos naughty Canadians could invade at any moment.

Your naiveté is amusing but pathetic. This is the second incredibly naive thing you have said in this post.

 

[xouper]

DanishDynamite: ... freedom of speech is fundamental to democracy. The freedom to own a particular type of technology is not.

I have no illusion that you and I will ever agree on this point, but "the freedom to own a particular type of technology" is fundamental to the notion of personal liberty. Fundamental rights do not have to be justified only in terms of democracy. In fact they aren't. I have a fundamental right to defend myself, with a firearm if I so choose. That individual right is also acknowledged by the Constitution of the State of Michigan where I currently reside.

Article I, Section 6 of the Michigan Constitution reads: "Every person has a right to keep and bear arms for the defense of himself and the state."

 

[severin]

Tony - <yawn>

 

[DanishDynamite]

Tony:

Owning a snow cone machine isn’t fundamental to democracy either, does that mean we should not have the right to own them?

No. You should have the right to own anything which isn't prohibited by a law passed via the democratic process.

I don’t get it, where does this absurd idea that rights should be dependant on whether they are "fundamental to democracy" or not?

From AmateurScientist's post.

No they don’t. That's like saying 911 provided additional reasons to do away with certain civil liberties.

No. Given that there is nothing fundamental about the right to own arms (or toasters or leisure suits), it is normal procedure, when considering a law against something, to consider the pros and cons.

Lets just do away with everything that isn’t "essential to a democracy".

Indeed.

This is just dumb. I think the idea of you being able to defend yourself against a gang of thugs is ludicrous. Therefore, lets cut off your arms.

 

[DanishDynamite]

xouper:

I have no illusion that you and I will ever agree on this point,

I know, but it can be fun debating it.

but "the freedom to own a particular type of technology" is fundamental to the notion of personal liberty.

How?

Fundamental rights do not have to be justified only in terms of democracy. In fact they aren't. I have a fundamental right to defend myself, with a firearm if I so choose.

Yes, the right to self-defense is indeed fundamental. We agree completely. And the right to use a gun, a knife or any other implement in the vicinity to do so, is perfectly alright, if indeed your life is in danger. This, however, has nothing to do with declaing the right to own guns as a fundamental right. It isn't.

That individual right is also acknowledged by the Constitution of the State of Michigan where I currently reside.

Article I, Section 6 of the Michigan Constitution reads: "Every person has a right to keep and bear arms for the defense of himself and the state."

I don't doubt it.

 

[Cleopatra]

My main point is that the Second Amendment was enacted precisely to provide the citizenry a means of protecting the basic liberties and rights guaranteed by the constitution and upon which this nation was founded. Three main threats to such liberties were recognized at the time: 1) foreign invasion; 2) insurrection; and 3) tyrannical use of force against the citizenry by the government (or its military).
AS

I finally read that thread! Many excellent posts.

I have a question. How many times in the 20th ce the American citizens used their guns in order to resist to "the tyrannical use of force against the citizenry by the government (or its military)".

If the citizens have never exercised this right was because they haven't experienced a major violation of their rights?

What would constitute according to your opinion a major violation that it would justify the use of the guns by the citizens?

 

[Tony]

Tony:No. You should have the right to own anything which isn't prohibited by a law passed via the democratic process.

The "democratic process"? You mean, the majority dictating to the minority how to live their lives? Sorry, that is the fundamental flaw with democracy and the very reason why the US isnt one. The constitution is to prevent the majority from oppressing the minority.

From AmateurScientist's post.

Huh?

No.

Yes.

Given that there is nothing fundamental about the right to own arms (or toasters or leisure suits), it is normal procedure, when considering a law against something, to consider the pros and cons.

Self defense IS a fundamental and human right. Just because you dont recognize it as such doesnt make it so.



What's wrong?

 

[DanishDynamite]

Tony:

The "democratic process"? You mean, the majority dictating to the minority how to live their lives? Sorry, that is the fundamental flaw with democracy and the very reason why the US isnt one. The constitution is to prevent the majority from oppressing the minority.

Indeed and we are discussing whether a right written in the constitution should be there or not. It should be there if it is fundamental right relevant to a democracy. It shouldn't be there if it isn't. If isn't fundamental, the "right" is subject to the normal democratic process.

Huh?

Double "Huh?".

Self defense IS a fundamental and human right. Just because you dont recognize it as such doesnt make it so.

I just said it was fundamental.

What's wrong?

I don't understand your point.

 

[DanishDynamite]

Cleo, poochy, what happened to your avatar? And what exactly does your new avatar show?

 

[Cleopatra]

Indeed and we are discussing whether a right written in the constitution should be there or not. It should be there if it is fundamental right relevant to a democracy. It shouldn't be there if it isn't. If isn't fundamental, the "right" is subject to the normal democratic process.

The relevancy of a right to a political system ( democracy in our case) is judged by its mileage.

Do they use this right? This is the fundamental question.

edited to add DD concentrate to our discussion

 

[Wolverine]

Do you have to show your gun permit when you buy bullets?

This varies from state to state.

Most states do not require permits to own firearms. Here in Texas, for example, no permit is required for purchase of arms or ammunition -- the only permit one must acquire is a CHL (Concealed Handgun License), if one wishes to legally carry a concealed handgun. In this state, you must be 18 years of age to purchase long guns (rifles and shotguns) and corresponding ammunition, and 21 years of age to purchase a handgun. The only thing required to purchase ammunition is proof of age demonstrated via driver's license or other photo ID.

To contrast, in Illinois, residents must acquire a FOID card (Firearms Owner Identification), and present that card whenever seeking to purchase firearms or ammunition.

This page contains a clickable map of the United States, where you may, if interested, view the gun laws in each state.

 

[AmateurScientist]

AmateurScientist:No, but that is because freedom of speech is fundamental to democracy. The freedom to own a particular type of technology is not.

Read Justice Story's comments on the Second Amendment, which I posted on the 2nd page of this thread, and which I will repeat here (proper attribution is provided on Page 2 of this thread):

One of the most influential early commentators on the U.S. Constitution was Supreme Court Justice Joseph Story. In his Commentaries on the Constitution of the United States, vol. 3 at pp. 746-747 (1833), he has the following to say about the Second Amendment:

"§ 1889. The next amendment is "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.

"§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time ofanding armies in time of peace, both from the enormous expenses, with which they are attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. [FN1] And yet, thought this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How is it practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. [FN2]

"§ 1891. A similar provision in favour of protestants (for to them it is confined) is to be found in the [English] bill of rights ofll of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law." [FN3] But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege."

Because they provide additional reasons why this anachronistic right should be done away with.

The right of the people to protect themselves from invasion, insurrection, or military coup is never anachronistic. Once it's done away with, those threats become even more threatening and imminent.

The right to bear arms is not essential to a democracy (or a constitutionally limited republic, before a pedantic comes along). Hell, even the existence of a constitution is not required.

I never said either was essential to a democracy. Both are essential and integral to the formation and continuation of the United States of America's unique federal system, however. It is premised upon the individual's being endowed with certain unalienable rights, and upon the people's granting to the state certain enumerated powers. All others they retain. The right to defend one's self is one of those rights the people retained, and indeed one they guaranteed by placing it right up front in the Bill of Rights.

I can perhaps understand how this right was included in the US Constitution, given how the US had to wrest independence from a colonial power. However, I don't see how you can think there are still "sound modern reasons" for this right.

Modern reasons?

--Hitler's rise to power in Germany
--The ease with which the Germans occupied nearly all of continental Europe
--The continued existence of dictatorial, murderous regimes on the planet
--the loud cries for a ban on weapons from within the U.S.
--the U.S. Government's fondness for sloganeering and declarations of a "War on Drugs" and a "War on Crime" and the public's ready acceptance of them
--anti-self defense rhetoric and propaganda
--the constant barrage by the media of images and stories of violence against children and other innocents by guns (it's not by guns, it's by people)
--the cultural divide between the average civilian and the military culture in the U.S.
--the natural inclination for any government to expand its powers ("benevolence" notwithstanding)
--the resultant erosion of individual liberties whenever government powers expand

The idea that an armed population could make one whit of difference if the men and women of the military somehow decided to be a tool of oppression against the citizenry, is ludicrous.

Probably sounded pretty ludicrous in the colonies in 1775 too. Or in 1861, when 11 states seceded from the union and kept a bloody war going for 4 years.

The idea of the Soviet Union simply dissolving voluntarily almost overnight most certainly was unthinkable from 1945 thoughout the 1980s, no?

You forget that the U.S. is very large and diverse geographically. A military coup in this country, although very unlikely at present, would be difficult to achieve at any time. Pockets of resistance throughout the cities and the country would prove to be quite a thorn in the sides of anyone attempting such a thing, modern military weapons notwithstanding.

Small arms are the weapons of guerillas. Guerilla resistance has indeed been quite effective against heavy military armaments in modern times. Vietnam, Honduras, El Salvador, 1970s Afghanistan, and now Iraq come to mind.

AS

 

[severin]

'It is unlawful to sell or give to a minor, without written consent of the minor's parent or legal guardian, a firearm or ammunition.'

This is the law in Arizona (I haven't checked the other states yet). So does this mean that a twelve year old can buy a gun with a letter from the parents? And how is it checked that the letter isn't forged?

 

[Tony]

It should be there if it is fundamental right relevant to a democracy. It shouldn't be there if it isn't. If isn't fundamental, the "right" is subject to the normal democratic process.

This is crap, where are you getting this? Please show me the constitutional evidence you have for this view. What you advocate isnt democracy, but a dictatorship of the majority.

I just said it was fundamental.

You did? Then tell me how an unarmed person is supposed to defend themselves against criminals with guns?

I don't understand your point.

Its an anology, what about it do you not understand?

 

[Cleopatra]

Modern reasons?

--Hitler's rise to power in Germany
--The ease with which the Germans occupied nearly all of continental Europe
AS

Amateur Scientist

There is nothing to indicate that if German people were armed, Nazism wouldn't turn to the phaenomenon we experienced.

Let me post my favorite quote of Alexis de Tocqueville and Democracy in America.

" No man can struggle with advantage against the spirit of his age and country,and however powerful a man may be, it's hard for him to make his contemporaries share feelings and ideas which run counter to the general run of their hopes and desires"

( quoted almost verbatim because I quoted it by memory since I have learned it by heart....)

 

[Wolverine]

'It is unlawful to sell or give to a minor, without written consent of the minor's parent or legal guardian, a firearm or ammunition.'

This is the law in Arizona (I haven't checked the other states yet). So does this mean that a twelve year old can buy a gun with a letter from the parents?

No. The Gun Control Act of 1968 (federal law) mandated that the nationwide cutoff age for purchase of long guns is 18. I don't know how long that statute has been on the books in Arizona, and what its limitations are, but to the best of my knowledge it is superceded by federal law. I will research the matter.

 

[AmateurScientist]

Tony:Indeed and we are discussing whether a right written in the constitution should be there or not. It should be there if it is fundamental right relevant to a democracy. It shouldn't be there if it isn't. If isn't fundamental, the "right" is subject to the normal democratic process.
Double "Huh?".
I just said it was fundamental.
I don't understand your point.

We aren't discussing just any democracy. We are discussing the radically new at the time form of America's constitutional republic.

Unlike more traditional democratically controlled governments, it placed individual liberties above and beyond the reach of government's power to take them away. It was a radical idea, and perhaps remains alien to most non-Americans.

The right to defend one's self isn't necesarily essential to forming or functioning under a democracy. It is recognized as a necessary check upon the tendency of government to seize ever more powers from the people, however. It is a check against factionalism and tyranny by the majority, which is at odds with traditional notions of democracy.

Tyranny by majority and by government were the primary ills the founders of the United States sought to guard and protect against. Achieving a mere democracy was not their aim. Forging a new nation founded upon a constitution guaranteeing certain unalienable rights to its people, and keeping it, was the intent of the founders.

The keeping it part is the hardest part of what the founders did. Benjamin Franklin recognized this when asked by Mrs. Powell what had they wrought in Philadelphia at the Constitutional Convention in his reply, "A republic, madam, if you can keep it."

President Andrew Jackson, paraphrasing John Philpot Curran, said, "eternal vigilance by the people is the price of liberty."

Franklin, again, said quite aptly even before our country was founded, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

The Second Amendment simply cannot be understood outside the historical context in which it was framed. Its continued importance can be understand by a thoughtful examination of recent, modern history.

AS