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View Diary: Guns Are Property, Not Liberty (114 comments)

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  •  It's dependent in part on the premise that the (8+ / 0-)

    "Right to Keep and Bear Arms" gives you a specific right to own the specific, particular, exact, precise weapon that you want. Otherwise, a discrete "ban" or restriction on one particular model, type or category of weapon would not be an infringement, because inter alia any number of other weapons are still available to you. If banning Weapon [X] is an infringement, then the "right" must be the Right to Keep and Bear Weapon [X], and you can't Keep and Bear Weapon [X] unless and until you buy it.

    Moreover, if a weapon is issued to you by the militia, you do have property rights in that weapon, albeit short of full ownership. It's essentially a bailment, i.e., a transfer of right of possession, which is a property right.

    All those are good examples of incidental expenses that accompany the right to do particular things. The question is whether the Second Amendment gives you the right to own guns, full stop, or to do things with those guns that you own.  

    •  But that wasn't your argument. (3+ / 0-)
      Recommended by:
      radmul, ColoTim, rcbowman

      My comment was directed specifically to your claim that you'd have to own something in order to keep and bear it.  I questioned whether that was necessarily true.  As another user has pointed out, soldiers keep and bear arms they don't own.

      Perhaps that sort of transfer of possession is a bailment (although generally one has to pay for a bailment), and a bailment is a form of possessory right.  But it certainly isn't ownership, and that's the question to which my comment was addressed.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Fri May 03, 2013 at 12:10:38 PM PDT

      [ Parent ]

      •  Well, if you want to split hairs, perhaps (2+ / 0-)
        Recommended by:
        concernedamerican, Miggles

        I should have phrased it as, e.g., "You'd have to own or have legal possession of something in order to keep and bear it;" or, "You'd have to have property rights in something in order to keep and bear it."

        My argument is that "keep and bear" implies ownership, which in turn implies property rights. "Keep and bear" also implies legal possession, which is also a property right. So maybe I wasn't as thorough or precise as I could/should have been, viz,  used "ownership" to encompass all property rights, including legal possession, which technically it doesn't. But, and please forgive me, it seems you're looking for something to dispute for the sake of having something to dispute.

        The point is to distinguish property rights from civil rights, not to distinguish one kind of property right from another. The fact that legal possession is not ownership does not undermine the proposition that the Right to Keep and Bear Arms is a property right, or convert the Right to Keep and Bear Arms from a property right into a civil right.

        •  I understood what you were arguing. You were (0+ / 0-)

          pointing out that if the guns are property, and if we grant that the first amendment provides for a right to free speech without our interpreting it as providing for everyone's right to own printing presses or television stations or even pens and pencils, then why do we not, in an analogous fashion, bring the same kind of interpretation to the second amendment?  Why do we not say that the second amendment provides for a right (to keep and bear arms), but without granting by extension a right to the material/physical tools and equipment one might require to materially manifest an exercise of that right (the purchase of the property, a gun, itself)?

          That's one more thing to add to my long list of small problems. --my son, age 10

          by concernedamerican on Fri May 03, 2013 at 02:30:18 PM PDT

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          •  No, that's not my argument at all. (3+ / 0-)
            Recommended by:
            Miggles, fumie, Beetwasher

            Not even close, in fact.

            I think you're confused as to the relevance of the First Amendment to my argument, as opposed to the arguments that have been made to me in opposition thereto.

            My argument is that the First Amendment analogy that others have made is inapt and immaterial, because the First Amendment, by its terms, explicitly establishes and protects civil rights, not property rights, while the Second Amendment, by its terms, explicitly does the opposite.

            My further observation is that "conservatives" and libertarians, usually big fans of property rights, don't see the Second Amendment that way because property rights are not heroic enough for them; they think the Second Amendment gives them the right not just to own guns -- which is and can only be a property right -- but to do all the heroic things they imagine themselves doing with their guns.

          •  I think the author said - you don't need a (1+ / 0-)
            Recommended by:
            fumie

            megaphone (property) to exercise your 1A right - you have a voice. Is there an equivalent 2A scenario? Fists? But those aren't "Arms" - ie, property.

            Is the right to keep and bear arms the right to defend oneself? If so, then perhaps that is a civil right.

            You can do that with fists but if you want to do that more "effectively" (similar to more effective exercise of 1A rights with a megaphone) you acquire an "arm" - property.

        •  I'm sorry if I gave this impression: (1+ / 0-)
          Recommended by:
          rcbowman
          But, and please forgive me, it seems you're looking for something to dispute for the sake of having something to dispute.
          I was actually curious about why ownership would be necessary at all in the Second Amendment context.  Again, as another user pointed out, soldiers keep and bear arms they don't own all the time.  So my comment was intended to explore that particular question.  

          I had thought the question's relevance would be obvious.  That is, many people view the Second Amendment as conferring a personal right to own firearms, and five members of the Supreme Court seem to agree.  All I was attempting to do is point out that there doesn't seem to be any necessary relationship between "owning" and "keeping and bearing."  So whatever right(s) the Second Amendment may confer, it is not immediately obvious to me why gun ownership (as opposed to, say, temporary possession of government-issued weapons for militia purposes) is considered part of it.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Fri May 03, 2013 at 04:11:42 PM PDT

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          •  The point is that "a personal right to own (0+ / 0-)

            firearms" is a property right, and a personal right to possess firearms that the possessor does not own is also a property right. "Ownership," strictly speaking, is a property right (in that "property rights" is a category, to which "ownership" belongs. "Possession," meaning lawful possessory interest, is also in that same category.

            The distinction you brought up, viz., between "ownership" and lawful possession, is in this context a distinction without a difference; they are both property rights. The focus and emphasis here is on property rights, not ownership. Whether the misplacement of focus and emphasis was yours or mine is debatable, and at this point irrelevant.

            "Keep and bear" implies ownership, and it also implies possession. Both are property rights. You can't claim a "right" to "keep and bear" something in which you have no property rights, be they ownership or possessory interests.

            •  I appear to have upset you. (0+ / 0-)

              And for that I apologize.  As I have no wish to cause further misunderstandings, I'll just bow out of this diary now.

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Fri May 03, 2013 at 06:18:02 PM PDT

              [ Parent ]

    •  Doesn't this also have to do with the original (0+ / 0-)

      intent of 2A - militia - which was later extended to the individual?

      •  The orginal intent was not militia that later (2+ / 0-)
        Recommended by:
        oldpunk, andalusi

        extended to an individual...unless you can cite me all the laws that originated from the date of the creation of the Bill of Rights that forbade any individual, except those in the militia, from owning a gun.  

        The founding fathers didn't all die the day after they created the Bill of Rights and leave it all up to third party interpretation from that moment on.  If the intent was that only active militia could own firearms....why did not every town in the country make new laws and proclamations stating this?  Why were women who could not be in the militia officially allowed to own guns? Why did the companies on the Oregon Trail require guns and 6 months of ammo and even single women who wish to travel had the same requirement...if all of those weapons were totally illegal?

        The intent was never only for the militia, and you do not even have to figure this out from interpretation or the events that happened right after the Bill of Rights was created.  You can go directly to the source and the many public debates and written writings of the founders themselves and the reason behind the 2A and their opinion on why it needed to be in the Bill of Rights.  They were not in agreement at first over the entire idea of a Bill of Rights being created at all....and so many times they debates and argued and wrote to one another, until they finally were in agreement.

        •  OK, Bailey, I'll listen to you, blogging on DKos. (0+ / 0-)

          Why don't you write a diary about this subject and put your theories to the test? With citations, of course.

          It was a question for a reason - looking for a reasonable answer.

        •  Seriously? (0+ / 0-)
          If the intent was that only active militia could own firearms....why did not every town in the country make new laws and proclamations stating this?  Why were women who could not be in the militia officially allowed to own guns? Why did the companies on the Oregon Trail require guns and 6 months of ammo and even single women who wish to travel had the same requirement...if all of those weapons were totally illegal?
          In answer to your question; Because the 2A doesn't say;
          "A well regulated militia being necessary to the security of a free state...and for anyone not part of the militia it's illegal."

          If Liberals hated America, we'd vote Republican.

          by ord avg guy on Sat May 04, 2013 at 07:18:28 PM PDT

          [ Parent ]

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