Skip to main content

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

Comment Preferences

  •  so (0+ / 0-)

    keeping and bearing are two different things.  But are "militia" and "the people" identical sets?  And if not, which one does the right belong to?

    It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

    by happymisanthropy on Tue Dec 18, 2012 at 01:09:05 PM PST

    [ Parent ]

    •  And neither one is "owning" and neither (0+ / 0-)

      one is related to self defense and neither has to do with a home.

      Bottom line, the states can regulate keeping and bearing arms because they regulate the militia.

      The federal government cannot infringe upon the keeping and bearing of arms to the extent it is pursuant to a well regulated militia.

      There.  No backflips.  No making "keep and bear" synonomous with "owning". No dropping words down the memory hole.  No reading newspapers from 1880 to find some sort of general right of self defense with guns incorporated into the consitution by osmosis.  No crackpot theories about the second providing individuals with the means to rebel.  

      It's.  Just.  Reading.

      One piece of free advice to the GOP: Drop the culture wars, explicitly.

      by Inland on Tue Dec 18, 2012 at 01:35:39 PM PST

      [ Parent ]

      •  but (1+ / 0-)
        Recommended by:
        Adam B
        Bottom line, the states can regulate keeping and bearing arms because they regulate the militia.
        They regulate the militia according to standards provided for by Congress.  How this would be relevant to the regulating of arms kept and borne by people who are not members of the militia is unclear.
        The federal government cannot infringe upon the keeping and bearing of arms to the extent it is pursuant to a well regulated militia.
        Even the Miller court never interpreted the second amendment that narrowly.  There's not one scintilla of evidence that the second amendment was ever intended to apply to militia members only, nor has any supreme court interpreted it thus.  

        Indeed, interpreting it thus is self-negating, since it's obvious that there is no need to prevent Congress from disarming the people Congress chooses to arm.  (Article I:  Congress provides for arming the militia.)

        No making "keep and bear" synonomous with "owning".
        It's not clear to me how a person can exercise his or her right to "keep" or to "bear" arms that he or she does not own.  It seems pretty constrained.
        No reading newspapers from 1880 to find some sort of general right of self defense with guns incorporated into the consitution by osmosis.
        There's no right to breathe in the constitution either.  Some things go without saying.  
        No crackpot theories about the second providing individuals with the means to rebel.  
        Are crackpot theories lifted verbatim from the federalist papers acceptable?
        It's.  Just.  Reading.
        and reading will show you that rights are for individuals.  States do not have any rights.  Neither do militias.

        It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

        by happymisanthropy on Tue Dec 18, 2012 at 03:09:03 PM PST

        [ Parent ]

        •  The word "own" isn't in there. (0+ / 0-)

          You have to walk before you can run.  The claim that the second provides a right to own guns is disproven by the lack of the word "own", which was a word well known to the framers.  

          Once one accepts that...and it's not like you have a choice....it becomes clear.  The intent wasn't to provide a right to own guns, but only to prevent the federal government from infringing on "keeping and bearing", two words consistent with militia service but not implicating private ownerhip.  The first words don't have to be ignored; the intent of safequarding a well regulated militia is again inconsistent with ownership.

          It's not a history lesson.  It's not mystical.  No knowledge of any specialized language is required.  Just showing how, once one recognizes the existence of the word "own" it all makes sense.

          One piece of free advice to the GOP: Drop the culture wars, explicitly.

          by Inland on Tue Dec 18, 2012 at 04:05:11 PM PST

          [ Parent ]

          •  what? (0+ / 0-)

            how does that describe any right at all?

            The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
            My state's constitution specifies self-defense, but it doesn't include the word "own" either.  I guess I'm outta luck.

            Or, you're full of it.

            Signed, someone with no right to own a computer and therefore no right to speak through one.  (The word own is not in the first amendment!  Look it up!  Onoz!)

            States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

            by happymisanthropy on Tue Dec 18, 2012 at 04:23:07 PM PST

            [ Parent ]

            •  I don't understand that: (0+ / 0-)

              My construction describes a right critical to states and the people depending on state militias to suppress slaves and defend against Indian attacks. You seem to think that we have to make it useful to you personally.

              BTW: "self defense" also a concept known to framers.  Not in there.

              Your state is allowed to restrain itself any way it likes. Irrelevant to the second amendment to the fed constitution.  

              One piece of free advice to the GOP: Drop the culture wars, explicitly.

              by Inland on Wed Dec 19, 2012 at 06:25:02 AM PST

              [ Parent ]

              •  The Framers also knew (0+ / 0-)

                about breathing, too  bad it isn't protected under the constitution.

                States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                by happymisanthropy on Wed Dec 19, 2012 at 09:45:01 AM PST

                [ Parent ]

                •  It doesn't have all the rights you want. (0+ / 0-)

                  I dont think that is a surprise to anyone, given slavery and lots of other stuff the founders accepted  You're going to have to rely on voters to judge what additional rights you should have.

                  One piece of free advice to the GOP: Drop the culture wars, explicitly.

                  by Inland on Wed Dec 19, 2012 at 01:11:21 PM PST

                  [ Parent ]

              •  also (0+ / 0-)
                You seem to think that we have to make it useful to you personally.
                I'm not asking you to make it anything.  It's mine.  How I use my individual right is none of your damn business.

                States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                by happymisanthropy on Wed Dec 19, 2012 at 09:46:47 AM PST

                [ Parent ]

                •  Whether you have a right is in question. (0+ / 0-)

                  That is all.

                  One piece of free advice to the GOP: Drop the culture wars, explicitly.

                  by Inland on Wed Dec 19, 2012 at 01:13:10 PM PST

                  [ Parent ]

                  •  Not really. (0+ / 0-)

                    Whether we should have that right is in question.

                    What the limits of that right are, as a restraint on the powers of government, is still being worked out in the courts.

                    But, under our system, unless and until Heller and McDonald are overturned, or the Constitution is ammended, (neither of which I consider likely,) we do have it. The Supreme Court is the final arbiter of the meaning of the Constitution, as it applies to the actions of the government.

                    That's why this diary is so critical, for every side of this debate.

                    --Shannon

                    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
                    "Dissent is patriotic. Blind obedience is treason." --me

                    by Leftie Gunner on Wed Dec 19, 2012 at 08:48:30 PM PST

                    [ Parent ]

                    •  "should" is a question for legislatures (0+ / 0-)

                      not judges.  Let's vote.

                      And don't put much faith in the staying power of the five-four decisions overturning a century of settled law.    There isn't going to be another set of five justices with radical agendas.  

                      One piece of free advice to the GOP: Drop the culture wars, explicitly.

                      by Inland on Thu Dec 20, 2012 at 10:07:25 AM PST

                      [ Parent ]

        •  I can (0+ / 0-)
          It's not clear to me how a person can exercise his or her right to "keep" or to "bear" arms that he or she does not own.  It seems pretty constrained.
          Imagine a regime under which the government issues a weapon to everybody qualified to keep in their home or bear ... and forbids private ownership. It's possible, if not likely. It's also close to the norm on military posts.

          Indeed, I think that was the case in some of the colonies ... that arms were kept generally in some communal location, and only distributed to homes when there was some danger reported afoot.

          •  um, not at all. (0+ / 0-)
            It's also close to the norm on military posts.
            no, guns on military bases are mostly kept locked up.
            Indeed, I think that was the case in some of the colonies ... that arms were kept generally in some communal location, and only distributed to homes when there was some danger reported afoot.
            If there were a serious shortage of firearms or ammunition for
            the militia, as Bellesiles claims, it seems strange that the Provincial Congress on June 17,
            1775 (almost two months after Redcoats fired on Minutemen at Lexington) recommended to
            non-militia members “living on the sea coasts, or within twenty miles of them, that they
            carry their arms and ammunition with them to meeting on the [S]abbath, and other days
            when they meet for public worship.”
            7
              Somehow, there was a shortage of guns and
            ammunition for the militia, but non-militia members still had enough arms and ammunition
            that they were encouraged to bring them to all public meetings.

            States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

            by happymisanthropy on Tue Dec 18, 2012 at 08:35:02 PM PST

            [ Parent ]

            •  Whatever (0+ / 0-)

              My larger point was that it is entirely possible to imagine a society in which all firearms are government property issued to private citizens to keep and bear, and have that be consistent with the wording of the Second Amendment.

              •  if they were property of the government, (1+ / 0-)
                Recommended by:
                Adam B

                individuals would hardly be free to keep them and bear them except as desired by the owners of the issuing authority, making it nothing remotely resembling a right.

                States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                by happymisanthropy on Tue Dec 18, 2012 at 11:40:10 PM PST

                [ Parent ]

                •  The only difference between that ... (0+ / 0-)

                  ... and the existing situation is who owns the guns. If you are qualified (no criminal or psychological history), you get to buy one or however many you wish, and you can carry it around if the government decides you meet its standards, and if you somehow no longer meet those standards (felony conviction or mental illness) you have to surrender the weapon (at least in theory). The government is already, as a practical matter, the "issuing authority."

                  Is that really so much different from my hypothetical? If it isn't a right because the government can make you surrender guns you own under certain conditions not mentioned in the Second Amendment but that no one seriously disputes, then we are long since out of constitutional compliance already and this discussion is moot.

                  •  Yes, it is. (0+ / 0-)

                    And here's why:

                    Under the existing system, you have the right unless the government can prove, in a court of law, that you have taken actions which allow it to be taken away. (Yes, the boundaries of the right are still in flux.)

                    Your thesis turns that upside down.

                    --Shannon

                    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
                    "Dissent is patriotic. Blind obedience is treason." --me

                    by Leftie Gunner on Wed Dec 19, 2012 at 08:50:51 PM PST

                    [ Parent ]

                    •  We've drifted (0+ / 0-)

                      The original question was whether "keep and bear" necessarily implies a right to private ownership, if you want to be a Scalia-level textualist or literalist. My hypothetical case (which is likely to remain a hypothetical) would be a government buying guns and then issuing them to citizens who ask for them and otherwise meet requirements similar to those in place in the real world to keep in their homes and, if they meet the standards, bear at leisure in places allowed by law. The resulting situation would outwardly be the same as the present.

                      The question before a hypothetical court would be, does this situation comply with the Second Amendment because citizens without disability have the right to keep and bear arms even though they don't own them? (It's similar to the situation with police, who generally take their department-issued duty guns home and keep them there until they go back to work. They are government property but otherwise, when an officer is off-duty, indistinguishable from any privately owned firearm).

                      I could see a rational reason why a government might want to do things this way, if a well-regulated militia is necessary to the security of a free people, then perhaps a government would want to make sure that the potential members of that militia have up-to-date arms in good working order, rather than relying on whatever arms people happen to decide to have (you wouldn't want an invasion by a modern army being repelled by people armed primarily armed with the shotgun last fired by grandpa 25 years ago). It could arguably be the sort of policy choice courts have held within the realm of legislatures to make.

                      So, if the criteria for issuing guns to citizens requesting them are broadly applied, and those who would be issued the guns are otherwise unmolested by the law save for anything that currently exists, has the right to keep and bear arms been infringed even though the citizens themselves do not actually own the guns they keep and bear?

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site