2nd Amendment - a quick survey

[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.

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.

+1

And alot of that simply has to do with blatant misinformation, of which there is a boatload on both sides (Hello NRA, Hillary, & Feinstein).

 

[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?

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.

Yeah, it's a sticky issue, honestly. The way I generally look at things is this: laws must be fairly applied (and not just superficially fairly).

For example, a law that discriminates against people of a race or orientation is wrong on equal protection grounds, rather than substantive due process. If I say blacks can't do X, but asians may do X, then that is a fundamentally unequal law and can't be justified. On the other hand, if I say no one may do X, then it's not inherently problematic. That's why, in my line of thinking, you may implement gun restrictions, as long as they apply to everyone.

It all boils down to the thought that society shouldn't impose restrictions on certain members of society that those imposing it wouldn't be willing to live under. The example of "superficially equal laws" is around orientation. Of course someone could argue "all people may enter into heterosexual marriages" is "equal" on its face because it's a right available to everyone, but clearly it has an unequal effect in practice. For the record, I don't think government should be involved in defining marriage for anyone... if there's value in the rules around that bilateral contract, then it should be available to any two people who are legally able to enter into contracts and should be referred to in all cases as a "civil union." Leave the marriage label to the churches.

I guess an exception would be Person under 18 can't do X, but people 18 or older may do X. However, I can reconcile that by pointing out that a person under 18 is not a "full legal person" under the law. It's a bit conclusatory, but I'm ok with that level of discomfort.

 

[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.

Yeah, it's a sticky issue, honestly. The way I generally look at things is this: laws must be fairly applied (and not just superficially fairly).

For example, a law that discriminates against people of a race or orientation is wrong on equal protection grounds, rather than substantive due process. If I say blacks can't do X, but asians may do X, then that is a fundamentally unequal law and can't be justified. On the other hand, if I say no one may do X, then it's not inherently problematic. That's why, in my line of thinking, you may implement gun restrictions, as long as they apply to everyone.

It all boils down to the thought that society shouldn't impose restrictions on certain members of society that those imposing it wouldn't be willing to live under. The example of "superficially equal laws" is around orientation. Of course someone could argue "all people may enter into heterosexual marriages" is "equal" on its face because it's a right available to everyone, but clearly it has an unequal effect in practice. For the record, I don't think government should be involved in defining marriage for anyone... if there's value in the rules around that bilateral contract, then it should be available to any two people who are legally able to enter into contracts and should be referred to in all cases as a "civil union." Leave the marriage label to the churches.

I guess an exception would be Person under 18 can't do X, but people 18 or older may do X. However, I can reconcile that by pointing out that a person under 18 is not a "full legal person" under the law. It's a bit conclusatory, but I'm ok with that level of discomfort.

The problem is, there are ways around it if you have enough money or political sway. My other issue with this, is that for something like a blanket ban (ala D.C. before Heller) is that you're telling regular citiziens that they are not afforded the same ability to protect themselves that law enforcement, politicians or celebrities who can afford private (or government funded) security are afforded.

I have a massive problem with that. It smacks of the old "rich white land owners" model used in voting.

 

[cm husker]

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.

Your original statement didn't limit your claim to the amendments, for the record, so I guess you accept that you were overzealous on that point?

But, if we limit it to amendments (and further, to only the original 10 or "Bill of Rights"), there are still examples of where grants of power are implicit or explicit. Some examples:

Government may search homes upon probable cause

Government may charge people with crimes, subject to indictment and a prohibition on double jeopardy

Government may seize private property, provided the owner is compensated

Government may impose bail and punishment, provided that it is not cruel and unusual

There was a lot of controversy around whether a bill of rights should even be included because it could be read to implicitly grant powers not prohibited by the bill of rights to the government (whether federal or state).

 

[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.

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

National license - That's where this whole thing gets very difficult. I agree with a National BG check but how do we avoid going too far and abridging State rights? It's a difficult balance but one that we need to find/keep.

As far as the CC, it was explicitly against company policy and Federal requirements. It was a large financial company. The employee knew these requirements explicitly. He used to keep his firearm in his vehicle in a secure parking lot which was allowed. There were vehicle break-ins outside the secure parking lot down the road & the individual decided it would be "safer" for him to carry his firearm into the workplace. Once this was known, we had to file an incident with the US Treasury department (compliance). We had Secret Service, FBI, & County Sheriff on-site in the morning to disarm him. They caught him just outside the lobby before he walked into the building (between double set of secure doors with bombproof glass). The employee argued semantics for 10 minutes while brandishing his handgun before relinquishing his weapon. I do believe had he been confronted in the office itself, somebody would have been hurt. The bombproof glass kept it from escalating...

EDIT - In the employee's defense, he had some major personal issues (child illness, divorce, unexpected family deaths all within a few months) occur after getting his CC permit that affected his mental state. I don't think the system failed, everyone has their breaking point and he reached his...

 

[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 curios what happened with the conceal carry thing? Did he go off, or was it simply a work no-no?

National license - That's where this whole thing gets very difficult. I agree with a National BG check but how do we avoid going too far and abridging State rights? It's a difficult balance but one that we need to find/keep.

As far as the CC, it was explicitly against company policy and Federal requirements. It was a large financial company. The employee knew these requirements explicitly. He used to keep his firearm in his vehicle in a secure parking lot which was allowed. There were vehicle break-ins outside the secure parking lot down the road & the individual decided it would be "safer" for him to carry his firearm into the workplace. Once this was known, we had to file an incident with the US Treasury department (compliance). We had Secret Service, FBI, & County Sheriff on-site in the morning to disarm him. They caught him just outside the lobby before he walked into the building (between double set of secure doors with bombproof glass). The employee argued semantics for 10 minutes while brandishing his handgun before relinquishing his weapon. I do believe had he been confronted in the office itself, somebody would have been hurt. The bombproof glass kept it from escalating...

Wow, he pretty much broke all the rules that they teach you. Good Lord...

 

[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?

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.

Yeah, it's a sticky issue, honestly. The way I generally look at things is this: laws must be fairly applied (and not just superficially fairly).

For example, a law that discriminates against people of a race or orientation is wrong on equal protection grounds, rather than substantive due process. If I say blacks can't do X, but asians may do X, then that is a fundamentally unequal law and can't be justified. On the other hand, if I say no one may do X, then it's not inherently problematic. That's why, in my line of thinking, you may implement gun restrictions, as long as they apply to everyone.

It all boils down to the thought that society shouldn't impose restrictions on certain members of society that those imposing it wouldn't be willing to live under. The example of "superficially equal laws" is around orientation. Of course someone could argue "all people may enter into heterosexual marriages" is "equal" on its face because it's a right available to everyone, but clearly it has an unequal effect in practice. For the record, I don't think government should be involved in defining marriage for anyone... if there's value in the rules around that bilateral contract, then it should be available to any two people who are legally able to enter into contracts and should be referred to in all cases as a "civil union." Leave the marriage label to the churches.

I guess an exception would be Person under 18 can't do X, but people 18 or older may do X. However, I can reconcile that by pointing out that a person under 18 is not a "full legal person" under the law. It's a bit conclusatory, but I'm ok with that level of discomfort.

The problem is, there are ways around it if you have enough money or political sway. My other issue with this, is that for something like a blanket ban (ala D.C. before Heller) is that you're telling regular citiziens that they are not afforded the same ability to protect themselves that law enforcement, politicians or celebrities who can afford private (or government funded) security are afforded.

I have a massive problem with that. It smacks of the old "rich white land owners" model used in voting.

And I don't disagree with your policy assessment, based on what research I've read and my sense that it would be massively expensive and ineffectual to try to implement some sort of blanket ban.

I'm just not sure if it's sound Constitutional theory/interpretation to head those policy positions off on Constitutional grounds than just well-reasoned arguments.

 

[cm husker]

What are thoughts about linking ownership to mental health checks? Lets expand that to other rights (e.g., the right to vote or avoid involuntary institutionalization).

If we start linking those rights together, do we discourage people from seeking therapy because they fear losing their rights? Do we put too much burden/responsibility on mental health care providers?

Seems like one of those "good in theory" ideas, but would be very very difficult to administer.

 

[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.

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

National license - That's where this whole thing gets very difficult. I agree with a National BG check but how do we avoid going too far and abridging State rights? It's a difficult balance but one that we need to find/keep.

As far as the CC, it was explicitly against company policy and Federal requirements. It was a large financial company. The employee knew these requirements explicitly. He used to keep his firearm in his vehicle in a secure parking lot which was allowed. There were vehicle break-ins outside the secure parking lot down the road & the individual decided it would be "safer" for him to carry his firearm into the workplace. Once this was known, we had to file an incident with the US Treasury department (compliance). We had Secret Service, FBI, & County Sheriff on-site in the morning to disarm him. They caught him just outside the lobby before he walked into the building (between double set of secure doors with bombproof glass). The employee argued semantics for 10 minutes while brandishing his handgun before relinquishing his weapon. I do believe had he been confronted in the office itself, somebody would have been hurt. The bombproof glass kept it from escalating...

Wow, he pretty much broke all the rules that they teach you. Good Lord...

Yep, he did. It was textbook in that regard ;-)

 

[Saunders]

What are thoughts about linking ownership to mental health checks? Lets expand that to other rights (e.g., the right to vote or avoid involuntary institutionalization).

If we start linking those rights together, do we discourage people from seeking therapy because they fear losing their rights? Do we put too much burden/responsibility on mental health care providers?

Seems like one of those "good in theory" ideas, but would be very very difficult to administer.

I'm all for keeping stupid people from voting, so if we can use mental health checks for firearms, can we please do IQ tests before you're allowed to vote?

 

[ColoNoCoHusker]

What are thoughts about linking ownership to mental health checks? Lets expand that to other rights (e.g., the right to vote or avoid involuntary institutionalization).

If we start linking those rights together, do we discourage people from seeking therapy because they fear losing their rights? Do we put too much burden/responsibility on mental health care providers?

Seems like one of those "good in theory" ideas, but would be very very difficult to administer.

From a Constitutionality perspective, that's a challenging line to establish. I think the measure is typically risk of unwarranted direct harm to self/others. You have the right to vote for anyone and that will *NOT* cause direct harm, even if it's Trump/Hillary.

From a law enforcement/military/militia perspective, that check is essentially in place. While it's not perfect, it is reasonable. The interpretation of the Second Amendment pre-2008 would allow State's to require mental health checks. Post-2010, this could be deemed unconstitutional. Will be interesting to see where it goes from there.

 

[Saunders]

You have the right to vote for anyone and that will *NOT* cause direct harm, even if it's Trump/Hillary.

heh

 

[ColoNoCoHusker]

You have the right to vote for anyone and that will *NOT* cause direct harm, even if it's Trump/Hillary.

heh

I knew that would happen as soon as I typed it... lol