Gun control/2nd Amendment

[Ned]

Originally posted by Imran Siddiqui

Actually, the Presser decision (language quoted above) seems to indicated that States (read cities as well) cannot ban the keeping and bearing of arms under the body of the Constitution as the Militias exist for the defense of the United States as well for the States

There is your proof that the 2nd applies to the states .

Article 1, sec. 8 seems to counter the argument that the 2nd only applies to state militias, as it says Congress (which is what Art. 1 is about) has to power to organize and arm the militia. The states only have the right to appoint militia officers and training militia.

If the 2nd is about militias then it directly contradicts Art. 1, Sec. 8, and thus would not be interpreted as simply dealing with milita.

Imran, that it contradicts the "arming" portion of Art. I, Section 8 was the whole point of the amendment. Read the 9th Cir. opinon. The anti-Federalists feared the exclusive power of the Feds to arm the Militias gave the Feds the power to destroy the Militias. That is why the Federal Government is handcuffed in this regard by the Second Amendment. The Federal Government cannot ban the right of the people to keep and bear arms under the Second Amendment. The States cannot do it under Art. I, Section 8.

[Sikander]

Originally posted by Ned


Sikander, the Bill of Rights does not automatically apply to the states. To the extent that a right protected by the Bill of Rights is an individual right, it may apply to state actions through the Fourteenth Amendment. There are a number of Supreme Court cases that have addressed individual of the Bill of Rights and have decided that those rights are protected by the Fourteenth amendment. Among these of course the rights protected by the First and the Fifth Amendment's.

If the Second Amendment is a fundamental right of the people and not a right of the states, I believe the Supreme Court will eventually hold that it applies to the states through the Fourteenth Amendment. It would then limit the right of the states to ban the keeping and bearing of arms. But no case that I know of has held that the Second Amendment applies to the states through Fourteenth Amendment.

If in contrast, the Second Amendment is intended to protect the right of the states to form Militias, it would not apply to Fourteenth Amendment because it is not an a fundamental right of the people that has to be protected against infringement by state action.

As I have said before, I believe the amendment's purpose is to protect the right of the states to form Militias. For this reason, the Second Amendment does not apply to the states through the Fourteenth Amendment. States can, therefore, ban the keeping and bearing of arms.

I would be interested in reading the case cited by Dr. Strangelove, as it seems to equate "State" in the amendment to the "United States" and not to the "States." This is a fundamental point and quite at odds with the history of the Second Amendment cited by the Ninth Circuit.

I think you and the 9th Circuit have it wrong. Notice that the only mention of state seems to indicate the United States as opposed to one of its constituent states (note especially the use of the singular "state"), and in any event is contained in the explanatory clause. Notice that the word People is used to describe whose rights may not be infringed. It seems obvious to me that the rights being protected here are those of the people, with the overall goal of protecting the state by allowing the people to defend it actively with their personal arms, and training supplied by the states or their agents.

[Sikander]

Originally posted by Dr Strangelove

Ironically, studies done by the army back befroe WWII showed that in general recruits who had experience with using guns as civilians did worse with army training than recruits who had no experience. They came to the conclusion that bad habits acquired during unsupervised civilian training impeded army training. Thus it appears that the keeping and bearing of arms by civilians is not a useful resource for maintaining public security and actually hampers the performance of their duty to the general government.

Tell that to Sgt. York, or for that matter my uncle who grew up during the depression nailing squirrels with a single shot .22, and ended up as a Marine sniper in 3 campaigns in the Pacific. There is certainly a difference in the way you shoot while hunting compared to a firefight, but I never saw anyone who wasn't already an experienced shooter shoot expert with the M-16. That Troll won't hunt!

[Ned]

Originally posted by Sikander


I think you and the 9th Circuit have it wrong. Notice that the only mention of state seems to indicate the United States as opposed to one of its constituent states (note especially the use of the singular "state"), and in any event is contained in the explanatory clause. Notice that the word People is used to describe whose rights may not be infringed. It seems obvious to me that the rights being protected here are those of the people, with the overall goal of protecting the state by allowing the people to defend it actively with their personal arms, and training supplied by the states or their agents.

I do not disagree with this. State, being singular, means both the United States and the States.

However, Militias were state military entities. The purpose of the Second Amendment was to assure that the Federal Government could not destroy Militias by refusing to arm them. The Miller decision, quoted above, clearly holds that the Second Amendment fully intends that Militias be formed from privately armed citizens. Congress cannot infringe this right under the Second Amendment. The Presser decision seems to hold that the States cannot ban gun ownership under Art. I, Sec. 8.

I think that the people who want to get rid of NYC or Chicago bans on gun ownership should rely on Presser and Art. I, Sec. 8 as reinforced by the Second Amendment.

[Kontiki]

Originally posted by jimmytrick


You put a convienent if in there. Fully backed by the military. Its one thing to enforce authoritarian rule against an unarmed populace and quite another to kill your fathers and cousins. Which is what the teenagers and young adults that comprise our military would have to do? And they never would.

Its the willingness to take up arms that makes us free. And the refusal to give them up that keeps us able to resist.

Well, you keep clinging to that belief that the moment you give up your guns, the government's going to kick down your door and make you their b*tch. That still doesn't explain why Canada, Britain, Australia, New Zealand, Sweeden, Switzerland, etc. have managed to maintain freedom and democracy for generations.

Are you contending that the only thing stopping the US from becoming totalitarian is that a minority of its population has guns at home? I guess using your logic, those teenagers and young adults that comprise the US military would have no problem pointing a gun at their fathers and cousins, threatening to kill them and ordering them around, as long as their fathers and cousins don't point one back.

[Capt Dizle]

Originally posted by Kontiki

Well, you keep clinging to that belief that the moment you give up your guns, the government's going to kick down your door and make you their b*tch. That still doesn't explain why Canada, Britain, Australia, New Zealand, Sweeden, Switzerland, etc. have managed to maintain freedom and democracy for generations.

Are you contending that the only thing stopping the US from becoming totalitarian is that a minority of its population has guns at home? I guess using your logic, those teenagers and young adults that comprise the US military would have no problem pointing a gun at their fathers and cousins, threatening to kill them and ordering them around, as long as their fathers and cousins don't point one back.

Yes I believe that in the long run the only thing that is going to perserve freedom in America is the guns in the hands of private citizens.

Yes, I believe that the military would be a willing tool against an unarmed public.

No, I am not going to comment on other nations. It's not my business.

[Kontiki]

I desperately hope for all of our sakes that you're wrong about how democracy in the United States is hanging by a thread, and the only thing that will keep the whole thing from falling down is that you and the other 40% of Americans own a firearm.

[korn469]

Kontiki

I desperately hope for all of our sakes that you're wrong about how democracy in the United States is hanging by a thread, and the only thing that will keep the whole thing from falling down is that you and the other 40% of Americans own a firearm.

it isn't so much that gun ownership keeps the people free or not, it is respect for the laws of the land

instead of gun ownership, the 2nd amendment could say:

A well maintained bladder being vital to the security of a free state, the right of the people to piss in the street shall not be infringed

and if there were any attempts to regulate outdoor pissing except by a constitution amendment i'd be in an uproar as well

i don't know much about canadian politics, but in the last century, the federal and state governments have done many things that would turn a person's stomach

the federal government turned a blind eye as the states segregated blacks and whites, and basically said that black's constitutionally guaranteed right to vote did not exist

many states practiced eugenics programs sterilizing thousands of the mentally handicapped and those in jail

the government has conducted various tests on the population, everything from the syphilis tests in alabama, to various chemical, biological, and nuclear tests (radiation fallout tests) on it's own civilian population

the pentagon papers, nixon, watergate, the people have a good reason to distrusts politicians and to ask what they are keeping from us

prohibition and the war on drugs certainly haven't increased the scope or the interpretations of civil liberties, and the supreme court ruled recently that drug testing for after school programs was ok because the needs of the many triumphed the rights of the few...that basically means people don't have rights

the supreme court itself had had it's fair share of horrible rulings, everything from ruling that blacks were property to seperate but equal was ok down to the current rulings that anything it takes to win the war on drugs is ok completely makes me lose faith in that institution

we have a constitution and a process to change it, we also have a number of listed rights that the founders of this nation thought were of the highest importance, moreover, they even said that people have rights that go beyond the constitution, that is both implied in the constitution, implied in many of the amendments, and stated in the 9th amendment, yet everyday it seems that all of our rights are under constant attack

all of these things lets me realize is if i don't exercise my right to complain about government abuses, one day i won't have that right, and the government trying to limit firearms is something i consider an abuse of governmental power. i simply don't think that the government is being honest or every using the facts to pass good legislation, america has a sky high murder rate compared to the rest of the world, not to mention a number of other social problems and yet when the government tries to solve these problems it does so under the assumption that every problem no matter how complex has one easy answer, and if we set back and let them ban guns, speech, or protections from searches and seizures, or even jury trials could be next

[Kontiki]

korn, I don't disagree with much of what you are saying. My beef is with people like jimmytrick who actually and explicitly believe that having an armed populace is what's keeping America free. And while I'm pretty much anti-gun, I too would be worried if, at this point in time, the government took some radical step towards taking away previously legal firearms.

I simply think it is important to realize that the freedom and democracy you enjoy in the US, I enjoy in Canada, and others enjoy elsewhere is not contingent upon an armed populace, but rather by shared ideals and solid institutions. Sure, governments have made their share of collosal mistakes, but it wasn't the fact that the common man had a gun that did anything to change rediculous things like, say, segregationist or property laws or voting rights. The act of speaking out against the government and keeping an eye on questionable actions is indeed good and necessary - I'll never dispute that. I will, however, vehemently dispute the notion that the gun in your hand is what's keeping me free.

[korn469]

Kontiki

i believe that guns in the hand of an armed populace are the last line of defense against tyranny, if it comes down to an armed populace being forced into armed resistance then we are in a worst possible situation, most likely tyranny would win out, simply because armed citizens aren't very good at beating soldiers

around 150 US special forces with air support fought 10,000 armed civilians to a standstill in somalia about a decade ago, since then the US military has learned some lessons and introduced some new technologies that would give them an even bigger edge in combat, and an average group of 10,000 american or canadian citizens probably would be as well armed or as battle hardened as the civilians + militias in somolia were, so if the US military ever did launch a coup the people would be in trouble no matter if they were armed or not, still though, even though the US wasn't defeated on the battlefield they still pulled out because fighting at the time wasn't worth it, so an armed populace could possibly defeat it's opponent by simply resisting, certainly doing nothing won't win any kind of victory at all

that being said, i do think that nonviolent civil disobedience is a much more effective way to cause political change in the United States or Canada. both nations have a long tradition of democracy, and while the record's not perfect the US probably the prototypical example of a democratic republic.
as far as i know there hasn't been ever been a coup by the US military, we've have very few cases of armed insurgency, and only one full blown civil war. not only that, even though we have a very quirky and sometimes problematic electorial college system to elect our president, each one of our leaders has been legitimate since the adoption of the constitution. in fact, i'd say that the tradition of freedom is one of the most powerful concepts that act as a limit on the government trying to institute a dictatorship. however, at the time they wrote the constitution there was no guarantee of a loyal military, and there was no long established tradition of constitutionally guaranteed rights. it was something that was completely new, and we were lucky. just look at how many new democracies in places like south america have had problems with the military taking over the government, or the president setting himself up as a dictator, so the founding fathers fears weren't unfounded. though i do agree on with you about one thing...

I will, however, vehemently dispute the notion that the gun in your hand is what's keeping me free.

i agree that for the moment, what freedoms we do have don't exist becaus of gun ownership, though i would argue you that at some point in the future it could come to that, and if i did i'd rather have a gun than not have one

my points are that people should be allowed to own guns because the constitution says they can, and because civilian owned guns do have a useful place in society for both recreational and self defense reasons. any gun control laws passed at this point that aren't part of a program to erase america's gun culture will simply disarm law abiding citizens and will do nothing to stop criminals. to get the guns out of the hands of most criminals we'd have to repeal the 2nd amendment, then launch a nationwide education, mandatory buyback, and strict enforcement policy to disarm the public and give it possibly decades to work. short of that, i think gun control is ineffective at keeping guns from criminals, and does nothing for stopping crime at all. badly designed gun control could even possibly cause more crime in my opinion. furthermore, besides target practice, recreational hunting earns state governments money from hunting licenses, and it saves the states money and effort from having to cull deer and other animals on a yearly basis since in many places their natural predators are long gone.

that's basically why i am pro gun, and it's certainly not because i'm a conservative, if i wasn't so anti corporations i'd be a libertarian, but i think that the government is often simply just an errand boy for corporate interests

[gsmoove23]

Originally posted by Sikander
It's an explanatory phrase, not a condition or a qualifying term. There is no question in the author's mind that this is true, nor any suggestion that this could change. There is no "If".

and when the logic that the phrase was created with no longer holds up the entire statement is called into question. No other amendment is coined in this way, why is this?

The idea that freedom is based on gun ownership in this country is ludicrous. Who is to say that the owners of guns don't fight for tyranny instead of freedom, Somalia is brought up here, paramilitary groups in pre-war Germany. Exactly what is so wholesome about a man and his gun?

[Sikander]

Originally posted by gsmoove23
and when the logic that the phrase was created with no longer holds up the entire statement is called into question.

It can be (and has been) called into question, but it remains in force until a constitutional amendment is passed that alters or eliminates it. Again, the explanatory clause can be proved completely false, but as the action clause is not dependent upon it for more than evolutionary reasons it can't negate the guarantees made.

[orange]

Just sneaking in a question here, sorry if it was already asked/answered (Directed at Ramo and David Floyd, primarily):

If the United States government passed an amendment that modified the 2nd amendment (in favour of gun control and redefining the terms of the 2nd amendment to basically allow states to regulate firearms) would you support the government's right to enforce said amendment (IE regulate firearms moreso than it does today), or would you still argue that anyone should have the right to own weapons, no matter what type, in all cases?

[korn469]

orange

if they simply deleted the second amendment i think that there would still be an argument for private gun ownership because of the 9th amendment

however if they changed it completely and said that states or the federal government could regulate guns however they wished, then there wouldn't be anything to argue about except if it was a good law or a bad law

speaking of hunting a local charity called Hunters for the Hungry had to stop taking meat donations from slain deer because it ran out of money for now, but before it ran out of money it distributed more than 250,000 lbs (around 114,000kgs) of deer meat from 5,000 deer to food banks and soup kitchens

[orange]

Korn - I didn't say remove it, I said modify it