2nd Amendment - a quick survey

[ColoNoCoHusker]

While thinking about this thread, I did a little googling and came upon this article. It's amazing that something can be written by what seems to be fairly intelligent people that ends up being so illogical.

I particularly like this quote:

“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,”

Are you friggen kidding me?

Think about the times the founding fathers lived in. Sure there were civilized cities but there were also wild territories that people DID protect themselves with guns. I don't remember anyone from the government coming out here in the wild west taking everyone's guns saying..."Hey....the government doesn't allow you to protect yourself. The second Amendment is only for the military".

So....now these smarty pants people are trying to claim I don't have the right to protect myself with a deadly weapon if someone invades my home at night and tries to do harm to my family?

In our early history (United States), Territories were unregulated and there was little "law of the land" until they became States. This was one way the Federal gov. motivated Territories to pursue statehood. In those Territories, people did carry firearms but they did NOT do this under the guise of the Bill of Rights. Early states guaranteed rights around arms; later States did not. The last few states actually had firearms "rights" decreased overnight due to regulations imposed by becoming a State...

As far as the second bolded, I cannot find any reference to BRB by name so...

 

[cm husker]

In colonial times, wasn't militia service often mandatory?

Nonetheless, those would be local laws -- over which the founders may have intended no federal government should intervene -- not a federally recognized right to private possession of a particular category of item.

There's a debate to be had over which view of the 2nd amendment is the proper one, but the history of its judicial interpretation is more certain, I think. As with other 5-4 SCOTUS decisions, Heller is currently the law of the land.

When you look at the Constitution as a document that doesn't say "this is what you're allowed to do", but instead says "The government can't take these away", then it makes more sense. The states were saying 'we want you to have this" and the 2nd says "the feds can't take it away." This goes down the whole states rights rabbit hole that people are arguing about with both Firearm and Marijuana laws lately.

If that's your perspective, then would you agree with an argument that the constitution doesn't prohibit a state from restricting individual ownership, even if the federal government can't restrict individual ownership?

 

[zoogs]

I agree that the Constitution is a document that protects rights, rather than provides them. However, it doesn't say "the government can't stop you from owning any kind of property" (right?) and the question here -- albeit a recently settled question -- is whether it says "the gov't can't stop you from owning guns in particular" or "the gov't can't stop states from forming militias."

Perhaps it's the result of modern eyes reading, but to bear arms sounds a lot more like joining an armed force than like 'owning' an item.

Not that the centuries of America's existence under the pre-2008 view of the law were ones of gun bans. The absence of a special protection of gun ownership doesn't ban guns; it just means that, like other kinds of private property, they aren't sacrosanct.

 

[BigRedBuster]

While thinking about this thread, I did a little googling and came upon this article. It's amazing that something can be written by what seems to be fairly intelligent people that ends up being so illogical.

I particularly like this quote:

“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,”

Are you friggen kidding me?

Think about the times the founding fathers lived in. Sure there were civilized cities but there were also wild territories that people DID protect themselves with guns. I don't remember anyone from the government coming out here in the wild west taking everyone's guns saying..."Hey....the government doesn't allow you to protect yourself. The second Amendment is only for the military".

So....now these smarty pants people are trying to claim I don't have the right to protect myself with a deadly weapon if someone invades my home at night and tries to do harm to my family?

In our early history (United States), Territories were unregulated and there was little "law of the land" until they became States. This was one way the Federal gov. motivated Territories to pursue statehood. In those Territories, people did carry firearms but they did NOT do this under the guise of the Bill of Rights. Early states guaranteed rights around arms; later States did not. The last few states actually had firearms "rights" decreased overnight due to regulations imposed by becoming a State...

As far as the second bolded, I cannot find any reference to BRB by name so...

Using the word "territories" was probably a poor choice of words. I should have said.."wild areas". It doesn't matter if you were in a State or Territory, people still used weapons to protect themselves and, I don't remember the government ever saying..."Well...you know....you can't actually own that gun. It's against the law".

As for if it's the state's rights or federal government....let me ask you this. Let's say you are correct in that every state has the right to outlaw guns everywhere other than their own National Guard.

In practicality, what law do you want to see your state enact that you think is constitutional under the 2nd amendment as far as individual rights to own a gun?

 

[cm husker]

While thinking about this thread, I did a little googling and came upon this article. It's amazing that something can be written by what seems to be fairly intelligent people that ends up being so illogical.

I particularly like this quote:

“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,”

Are you friggen kidding me?

Think about the times the founding fathers lived in. Sure there were civilized cities but there were also wild territories that people DID protect themselves with guns. I don't remember anyone from the government coming out here in the wild west taking everyone's guns saying..."Hey....the government doesn't allow you to protect yourself. The second Amendment is only for the military".

So....now these smarty pants people are trying to claim I don't have the right to protect myself with a deadly weapon if someone invades my home at night and tries to do harm to my family?

To the bolded, if you look at the history, some of the more ardent supporters of gun restrictions were local frontier towns, including the banning of carrying weapons and the possession of sidearms inside city limits.

Anyway, I'm conflicted on whether it's sound policy to regulate firearm possession; my sense is no because it's a costly gesture of little effect, especially in today's United States where the guns are already plentiful.

That said, we shouldn't confused CONSTITUTIONAL rights with natural rights (e.g., teh right to self defense). Although there's often overlap, the Constitution was not intended, nor could it, codify every natural right, whatever those may be. Instead, that task is left to regular legislation, and if a state wasn't to prohibit a means of self-protection, then that should be left to the community legislature. For example, most states have laws, either civil or common, that prohibit the use of shotgun booby traps to protect home and hearth. Some might argue that's an infringement on their natural right to self-defense, but it's not clear cut and we certainly shouldn't defer to the Constitution for guidance. Playing that out, there's no inherent right to defend yourself with a pistol, any more than you could defend yourself with a howitzer. There's a spectrum.

At some point, we have to rely on common sense and meaningful policies, not just interpretations of a single provision of a 240 year old document.

 

[Saunders]

In colonial times, wasn't militia service often mandatory?

Nonetheless, those would be local laws -- over which the founders may have intended no federal government should intervene -- not a federally recognized right to private possession of a particular category of item.

There's a debate to be had over which view of the 2nd amendment is the proper one, but the history of its judicial interpretation is more certain, I think. As with other 5-4 SCOTUS decisions, Heller is currently the law of the land.

When you look at the Constitution as a document that doesn't say "this is what you're allowed to do", but instead says "The government can't take these away", then it makes more sense. The states were saying 'we want you to have this" and the 2nd says "the feds can't take it away." This goes down the whole states rights rabbit hole that people are arguing about with both Firearm and Marijuana laws lately.

If that's your perspective, then would you agree with an argument that the constitution doesn't prohibit a state from restricting individual ownership, even if the federal government can't restrict individual ownership?

I'm not exactly sure. On one hand, it seems like common sense. On the other, you have to grant equal weight to other discriminatory laws, which would allow states to pass racial or orientation oppression laws.

 

[Saunders]

I agree that the Constitution is a document that protects rights, rather than provides them. However, it doesn't say "the government can't stop you from owning any kind of property" (right?) and the question here -- albeit a recently settled question -- is whether it says "the gov't can't stop you from owning guns in particular" or "the gov't can't stop states from forming militias."

Perhaps it's the result of modern eyes reading, but to bear arms sounds a lot more like joining an armed force than like 'owning' an item.

Not that the centuries of America's existence under the pre-2008 view of the law were ones of gun bans. The absence of a special protection of gun ownership doesn't ban guns; it just means that, like other kinds of private property, they aren't sacrosanct.

That line of thinking really didn't start to come to prominence after the civil war, when racism was used to keep freed slaves from exercising their rights (and protecting themselves).

During second half of the 19th century the courts continued the trend of upholding laws that banned the concealed carry of certain "dangerous" weapons. But the renegotiation of norms after the Civil War, racial tensions in the South and North, the continued growth of cities, and the labor movement in the latter half of the century spurred conflicts that pushed the courts to interpret the expectations and limits of the right to bear arms more specifically. Legislation was torn between those trying to develop laws that healed and developed the changed country and those who fought to regain control and reestablish past social norms. Black Codes in the South and North heavily restricted the right to bear arms by African Americans. In some states militias were legally recognized as white only to effectively disarm blacks while others enacted strict licensing so that even knives could not be easily acquired.[27]

http://lawsonline.com/LegalTopics/SecondAmendment/judicial-interpretation-second-amendment.shtm

 

[zoogs]

In practicality, what law do you want to see your state enact that you think is constitutional under the 2nd amendment as far as individual rights to own a gun?

Currently, states are constrained by Heller (2008) and McDonald (2010).

If not, then for example a city or state could ban all handguns if they wanted, whether or not it's a good idea. To counter these moves, you would have to appeal to popular opinion and elect different-minded legislators -- rather than invoke the 2nd amendment. In my opinion, it's fine in a representative democracy for this to fall under the purview of popular tides. The nature of society is ever-changing, and so is technology; in the face of that, major metro areas might develop different approaches than rural areas and so forth. In most cases, heavy gun restrictions probably won't fly, because people don't want them to.

On one hand, it seems like common sense. On the other, you have to grant equal weight to other discriminatory laws, which would allow states to pass racial or orientation oppression laws.

This is only true in a world where individual gun ownership, beyond general private property ownership, is a sacred right protected by the Constitution. That is our world, to be fair

Otherwise, states being constitutionally free to impose different restrictions on certain types of property is not the same as being free to impose discriminatory laws on certain types of people (though for a long time, that was also recognized as OK).

 

[ColoNoCoHusker]

While thinking about this thread, I did a little googling and came upon this article. It's amazing that something can be written by what seems to be fairly intelligent people that ends up being so illogical.

I particularly like this quote:

“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,”

Are you friggen kidding me?

Think about the times the founding fathers lived in. Sure there were civilized cities but there were also wild territories that people DID protect themselves with guns. I don't remember anyone from the government coming out here in the wild west taking everyone's guns saying..."Hey....the government doesn't allow you to protect yourself. The second Amendment is only for the military".

So....now these smarty pants people are trying to claim I don't have the right to protect myself with a deadly weapon if someone invades my home at night and tries to do harm to my family?

In our early history (United States), Territories were unregulated and there was little "law of the land" until they became States. This was one way the Federal gov. motivated Territories to pursue statehood. In those Territories, people did carry firearms but they did NOT do this under the guise of the Bill of Rights. Early states guaranteed rights around arms; later States did not. The last few states actually had firearms "rights" decreased overnight due to regulations imposed by becoming a State...

As far as the second bolded, I cannot find any reference to BRB by name so...

Using the word "territories" was probably a poor choice of words. I should have said.."wild areas". It doesn't matter if you were in a State or Territory, people still used weapons to protect themselves and, I don't remember the government ever saying..."Well...you know....you can't actually own that gun. It's against the law".

As for if it's the state's rights or federal government....let me ask you this. Let's say you are correct in that every state has the right to outlaw guns everywhere other than their own National Guard.

In practicality, what law do you want to see your state enact that you think is constitutional under the 2nd amendment as far as individual rights to own a gun?

In practicality, my personal concern is I want people that own guns to be responsible with them (i.e. free from mental illness & intent to harm)** and for the weapons to be appropriate for the purpose of defense. I don't think everyone should have stinger missiles or 50 caliber machine guns. I also don't think limiting clip size for semi-automatic weapons makes sense. I really do not have a good feel for exactly when a firearm goes beyond personal defense. I think that line is different in Aurora, CO versus out by Holyoke, CO.

While I may not agree with a lot of State laws regarding gun control/ownership, I believe it is a State's right to limit individual ownership, NOT the Federal government. As long as restrictions on ownership are done at a State level, the Constitutionality piece I am concerned about has been met. I think "crazy" in CO is wwwaaayyy different than "crazy" in AK; let each state manage to its own...

** This is a more recent belief. I worked with one of the first folks to receive (and lose) a conceal carry permit. He lost it after choosing to carry his firearm in the workplace... The way that went down was close to being very bad for a lot of people.

 

[Saunders]

Some might argue that's an infringement on their natural right to self-defense, but it's not clear cut and we certainly shouldn't defer to the Constitution for guidance. Playing that out, there's no inherent right to defend yourself with a pistol, any more than you could defend yourself with a howitzer. There's a spectrum.

At some point, we have to rely on common sense and meaningful policies, not just interpretations of a single provision of a 240 year old document.

I kinda agree with this, but like I said above you don't see people arguing that free speech doesn't apply to Audio/Video recordings and the internet.

 

[Saunders]

While thinking about this thread, I did a little googling and came upon this article. It's amazing that something can be written by what seems to be fairly intelligent people that ends up being so illogical.

I particularly like this quote:

“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,”

Are you friggen kidding me?

Think about the times the founding fathers lived in. Sure there were civilized cities but there were also wild territories that people DID protect themselves with guns. I don't remember anyone from the government coming out here in the wild west taking everyone's guns saying..."Hey....the government doesn't allow you to protect yourself. The second Amendment is only for the military".

So....now these smarty pants people are trying to claim I don't have the right to protect myself with a deadly weapon if someone invades my home at night and tries to do harm to my family?

In our early history (United States), Territories were unregulated and there was little "law of the land" until they became States. This was one way the Federal gov. motivated Territories to pursue statehood. In those Territories, people did carry firearms but they did NOT do this under the guise of the Bill of Rights. Early states guaranteed rights around arms; later States did not. The last few states actually had firearms "rights" decreased overnight due to regulations imposed by becoming a State...

As far as the second bolded, I cannot find any reference to BRB by name so...

Using the word "territories" was probably a poor choice of words. I should have said.."wild areas". It doesn't matter if you were in a State or Territory, people still used weapons to protect themselves and, I don't remember the government ever saying..."Well...you know....you can't actually own that gun. It's against the law".

As for if it's the state's rights or federal government....let me ask you this. Let's say you are correct in that every state has the right to outlaw guns everywhere other than their own National Guard.

In practicality, what law do you want to see your state enact that you think is constitutional under the 2nd amendment as far as individual rights to own a gun?

In practicality, my personal concern is I want people that own guns to be responsible with them (i.e. free from mental illness & intent to harm)** and for the weapons to be appropriate for the purpose of defense. I don't think everyone should have stinger missiles or 50 caliber machine guns. I also don't think limiting clip size for semi-automatic weapons makes sense. I really do not have a good feel for exactly when a firearm goes beyond personal defense. I think that line is different in Aurora, CO versus out by Holyoke, CO.

While I may not agree with a lot of State laws regarding gun control/ownership, I believe it is a State's right to limit individual ownership, NOT the Federal government. As long as restrictions on ownership are done at a State level, the Constitutionality piece I am concerned about has been met. I think "crazy" in CO is wwwaaayyy different than "crazy" in AK; let each state manage to its own...

** This is a more recent belief. I worked with one of the first folks to receive (and lose) a conceal carry permit. He lost it after choosing to carry his firearm in the workplace... The way that went down was close to being very bad for a lot of people.

I'd agree with most of this. However, I have said that if we're going with a national BG check, then I think it's appropriate for there to be a national license for carrying as well.

I'm curious what happened with the conceal carry thing? Did he go off, or was it simply a work no-no?

 

[ColoNoCoHusker]

In practicality, what law do you want to see your state enact that you think is constitutional under the 2nd amendment as far as individual rights to own a gun?

Currently, states are constrained by Heller (2008) and McDonald (2010).

If not, then for example a city or state could ban all handguns if they wanted, whether or not it's a good idea. To counter these moves, you would have to appeal to popular opinion and elect different-minded legislators -- rather than invoke the 2nd amendment. In my opinion, it's fine in a representative democracy for this to fall under the purview of popular tides. The nature of society is ever-changing, and so is technology; in the face of that, major metro areas might develop different approaches than rural areas and so forth. In most cases, heavy gun restrictions probably won't fly, because people don't want them to.

On one hand, it seems like common sense. On the other, you have to grant equal weight to other discriminatory laws, which would allow states to pass racial or orientation oppression laws.

This is only true in a world where individual gun ownership, beyond general private property ownership, is a sacred right protected by the Constitution. That is our world, to be fair

Otherwise, states being constitutionally free to impose different restrictions on certain types of property is not the same as being free to impose discriminatory laws on certain types of people (though for a long time, that was also recognized as OK).

^^^ Great Post!

 

[BigRedBuster]

OK...the founding fathers were in the process of fighting against the government they didn't like. Everything in the constitution is protecting the PEOPLE/public against the government. There is nothing in the constitution or the Bill of Rights that grants more power to the government over the people.

So....looking at the second amendment, it makes no sense to me that they were meaning only a "well regulated militia" (meaning the National Guard). The National Guard is the government. They are a branch of our government's military. How in the world is the second amendment granting rights of any kind if it is only pertaining to a branch of the US military?

That defies logic.

The bolded is of course factually untrue; the Constitution grants all sorts of powers to the government that may not be exercised by the people.

As to the "National Guard" being "the Government," that's not exactly true either, at least if you're referring to the national government, which arguably (logically, but not legally) is what the Constitution was meant to check. It would make sense that the Founders intended to codify an individual state's right to organize and maintain a militia, even if the federal government didn't want it to. That doesn't necessarily implicate the individual right, and it certainly doesn't explain why we should read the first clause out of that amendment.

Which constitutional amendment was put in place to give the government more power.

 

[cm husker]

Some might argue that's an infringement on their natural right to self-defense, but it's not clear cut and we certainly shouldn't defer to the Constitution for guidance. Playing that out, there's no inherent right to defend yourself with a pistol, any more than you could defend yourself with a howitzer. There's a spectrum.

At some point, we have to rely on common sense and meaningful policies, not just interpretations of a single provision of a 240 year old document.

I kinda agree with this, but like I said above you don't see people arguing that free speech doesn't apply to Audio/Video recordings and the internet.

True, but we also know that there are limits on the right to speech (e.g., government enforces defamation claims, certain permits may be required for assembly (as long as fairly administered), and limits on dangerous speech such as inciting language and yelling "fire" in a crowded theater).

I think most people are pretty close on gun regulations. It's just that it's such a convenient "hot topic" for both sides that we continue to have a massive debate on the fridges. That tends to happen when we bring the Constitution to bear.

 

[Saunders]

On one hand, it seems like common sense. On the other, you have to grant equal weight to other discriminatory laws, which would allow states to pass racial or orientation oppression laws.

This is only true in a world where individual gun ownership, beyond general private property ownership, is a sacred right protected by the Constitution. That is our world, to be fair

Otherwise, states being constitutionally free to impose different restrictions on certain types of property is not the same as being free to impose discriminatory laws on certain types of people (though for a long time, that was also recognized as OK).

I was looking at it specifically from the states right perspective as proposed by cm husker.