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View Diary: What gun control does the Second Amendment allow? (226 comments)

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  •  If you read it literally (4+ / 0-)
    Recommended by:
    Loge, SilentBrook, Miggles, sfbob

    The "well regulated militia" part strongly suggests that the authors had no issues with gun control per se (to the extent it was an issue) but also strongly felt that both state militias and guns were a matter for states to regulate.

    So the permissible range of Federal law is probably relatively constrained (e.g., automatic weapons, and rather importantly, interstate transport rules and registration).  But states should be able to do what they want -- if New Jersey decides that well regulated militias shouldn't have to duke it out with armed psychos, they can regulate themselves accordingly with strict handgun laws, no open carry, and very restricted concealed carry rules.  Illinois can ban handguns if they want (the court rulings otherwise are wrong; period.)   If other states want to allow open carry and all that, well, the rest of us have the right to tell them to check their iron at the border of our state.

    I'm not sure what to say about DC.  On one hand, it's a "federal" jurisdiction, on the other hand it's not affecting any state's 2nd amendment rights to not have gun laws.

    And the 2nd amendment is primarily about states, not necessarily individuals.  Both sides have it wrong.  The 2nd amendment clearly does not require laissez-faire policies toward guns, but it's not silent on gun ownership either.

    •  These are the issues (4+ / 0-)
      Recommended by:
      Adam B, sfbob, BachFan, Justanothernyer

      the Court confronted in Heller.  Because of D.C.'s special status, SCOTUS could rule on the second amendment directly.  And then as for states, it held in McDonald that the Second Amendment (as interpreted by Heller) was "incorporated" into State constitutions via the 14th amendment.  The prevailing test for incorporation is that the right be "implicit in the concept of ordered liberty," i.e., we can't have a free society without it.  That's how radical the GOP 5 have gotten.  (Indeed, by this standard, I can see how the criminal procedure amendments had to be incorporated as they were systematically ignored to perpetuate racial inequality, but there are a number of largely free societies that don't have anything near our 1st Amendment.  Fodder for another day.)  

      Difficult, difficult, lemon difficult.

      by Loge on Tue Dec 18, 2012 at 11:13:37 AM PST

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    •  The usual response from the pro-gun community ... (1+ / 0-)
      Recommended by:
      BachFan

      ... is to say that "well-regulated" in that context means only that the militia is to be well-armed.

      Yes, but ...

      ... I read it as clearly alluding to the concept of a regular army, then sort of a new thing (Cromwell had introduced it as the New Model Army a little over a century earlier. To be "regular", i.e. the first real modern army, a force had to be more than just adequately armed but extensively trained and disciplined. That's how you kick Royalist butt up and down England. (I suppose they could have been constipated, too, although it would help if they weren't. Ba-DUMP-ump ).

      Merely having enough arms to equip a small guerrilla force while not training and, yes, establishing rules about how soldiers are to handle weapons in non-combat capacities does not make gun owners as a whole a "well-regulated militia" within the meaning of the Second Amendment as it had originally been understood (I think).

      •  More-or-less on a similar page (5+ / 0-)
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        sargoth, BachFan, VClib, fuzzyguy, Debby

        The phrase "well-regulated," back then, meant well-functioning.

        •  Also remember (3+ / 0-)
          Recommended by:
          BachFan, Odysseus, Daniel Case

          This was in an era when your choices were (1) a smoothbore musket that fired 4 times a minute and expelled a musket ball that was so aerodynamically stable that it was hard to aim at anything and it had a very short lethal range; (2) a rifle that took a very long time to load but with which you could actually aim at food and expect to hit it; and (3) pistols, with which you couldn't hit a barn door standing on it and which frequently didn't go off when you pulled the trigger.  There were no issues around high capacity magazines on assault rifles.

          The gun obsession is a function of the postwar South and is tied to the exurbia obsession. The Civil War was one of the first major wars to benefit (?) from huge advances in technology for armaments.  Even the muzzleloaders were rifled, and the US Army was beginning to equip the entire army with breechloaders, with some use of repeating rifles as well.  And handguns were commonly of the Colt .45 design of revolver (they are still made today).  All of these were reliable and lethal.  The sheets and crosses boys knew they were going to be heading for the (lily white) hills and began to arm themselves.

          "Heading for the hills" meant heading west, where they encountered the incumbent occupants of the local real estate.  Native Americans didn't take well to a bunch of crude, racist white guys tearing up the land, and thus was born the myth of "winning the west."

          They don't have these problems in Europe.

        •  If that is so, do we believe, given the gun (2+ / 0-)
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          Debby, CA wildwoman

          violence we see, that our "militia" is well-functioning? Hasn't seemed to function very well, actually, for quite a long time.

          202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

          by cany on Tue Dec 18, 2012 at 02:23:40 PM PST

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        •  Yep, regardless (1+ / 0-)
          Recommended by:
          CA wildwoman

          of whether "well-regulated" means "well-equipped," "well-regulated," or "well-wishing," clearly the situation in the US doesn't meet that definition.

          Neither does the flood of weaponry contribute to the security of a Free State. Just one more prefatory clause on the garbage heap of history, right, Justice Scalia?

        •  I read well-disciplined and well-trained, (0+ / 0-)

          with some ideological shading of the time, that well-disciplined is well-trained is about the same thing as well-functioning.

        •  Actually, (0+ / 0-)

          when Revolutionary War militias were set up, "well-regulated" had a precise meaning of answerable to some form of properly constituted, i.e. responsible/representative, government.   My town's militia, which took eight fatalities on that morning of April 19, 1775, was fully answerable to the town meeting for every decision and action and funded by it in part.  Likewise with all the town militias that came in and fought the British army forces that day.

      •  And who has the authority (1+ / 0-)
        Recommended by:
        CA wildwoman

        to call forth such a militia?

        Section. 8.

        The Congress shall have Power

        To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

        To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.

        The NRA seems to forget about this part of the Constitution...

        It's about time I changed my signature.

        by Khun David on Tue Dec 18, 2012 at 02:45:41 PM PST

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