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Dumb Arguments About Guns is a series devoted to examining the (il)logic of the modern debate over gun rights, gun laws, gun ownership and gun possession.  The purpose of the series is to help people focus their arguments and avoid falling into the many pitfalls within gun debate in this country.  In the interest of full disclosure, my own position is that current gun laws are far too permissive.  I favor greater restrictions (but not elimination) on the types of guns private citizens should be allowed to own, carry and use.

I ask that people remain polite and on topic in the comments of this diary.  Please ignore overly dickish and/or excessively repetitive participants in this diary, we can only be derailed if we let ourselves get derailed.

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Ah, the second amendment of the US Constitution, the centerpiece of most modern debates about gun rights.  People scream and fight, with some arguing it gives them the individual right to bear arms, with others claiming that right only comes with membership in the militia (National Guard).  Amateur lawyers (and I am as amateur as they get) start arguing over commas, original intent and the definitions of commonly known words and just how regulated "well regulated" means.  But oddly, none of this matters--because the 2nd amendment really has no value in modern debates about gun laws, gun rights, gun ownership and gun use.  

Follow me below the fold to learn why.

Whether someone favors loose gun laws or more restrictive gun laws, the text of the second amendment does not really provide any justification for his/her position.  The reason is simple.  The text of the second amendment, much like the other amendments, is intentionally vague and general.  Its a general statement of principle, not a detailed outline of what is and is not permissible.  It requires interpretation and much legal footwork to bring into practice.  This is not an accident, the amendments in the Bill of Rights are not laws, but rather guiding principles for the evaluation and construction of laws.  

To begin, we must first recognize that, just like the right to free speech, the government can limit people's right to bear arms.  For example, only the most extreme nutjob would argue that a paroled violent offender with a standing restraining order to keep away from his ex-wife has the right to carry a fully-automatic machine gun.  Similarly, only the most extreme anti-gun advocates believe that people should not be allowed to carry single-shot rifles when hunting deer on their own land.  (Note: If you believe either of the these two statements, this diary is not for you.  You can continue screaming about the 2nd amendment to your heart's content).

So, pretty much everyone agrees that there are reasonable and unreasonable restrictions on people's ownership and use of guns.  It is also clear that the 2nd amendment, in no way, spells out what those reasonable or unreasonable restrictions are.  It makes no mention of violent felons, restraining orders, hunting, single-shot rifles or machine guns.  All of the laws that currently exist to regulate firearms are the product of people working to creatively balance the general principal expressed in the 2nd amendment with the danger that guns will be used for illegal ends--the question is not whether a restriction does or does not violate the 2nd amendment, the question is whether a restriction is reasonable or unreasonable in light of the principle expressed in the 2nd amendment.

What does this mean in practice?  Its actually fairly simple.  If someone claims that the 2nd amendment gives them the right to carry a concealed weapon, they are full of it.  You should ask them to point to the language in the 2nd amendment that specifically allows for concealed carry but prohibits violent felons owning machine guns.  It ain't there.  The 2nd amendment simply lacks the specificity to determine where reasonable and unreasonable gun restrictions lie. Seriously, it doesn't even mention the word reasonable. The reasonableness of gun laws can only be determined through logic and arguments unrelated to the 2nd amendment, because the 2nd amendment provides no guidance on what reasonable is.

So, unless you are advocating banning the possession of all arms except for members of the military or National Guard, the 2nd amendment is not an issue.  Unless you are advocating that all people can carry any weapon at any time, the 2nd amendment doesn't preclude specific gun control regulations.

In the modern gun control debate, the question is about reasonable and unreasonable restrictions.  Thus, if we are talking about a ban on assault weapons, or a ban on handguns, concealed carry with or without a permit or what type of bullets are or are not legal...the second amendment, oddly, just doesn't factor into the discussion, for the very simple reason that it has nothing to add to the discussion.

So, while it might seem odd, if you are planning to engage in a debate about gun control--for or against--you can leave your copy of the constitution at home...it won't help you make a good argument.

11:31 AM PT: Unrelated Update: To whoever just gave me a 1 year subscription, thank you.  Don't know who it was, but its a whole new world without ads for ballet tutus and IR night vision goggles (seriously, I get those two a lot--why I couldn't begin to guess).


Originally posted to Empty Vessel on Sat Dec 15, 2012 at 10:14 AM PST.

Also republished by Shut Down the NRA and Repeal or Amend the Second Amendment (RASA).

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Comment Preferences

  •  Tip Jar (15+ / 0-)

    "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

    by Empty Vessel on Sat Dec 15, 2012 at 10:14:40 AM PST

  •  It's too bad (2+ / 0-)
    Recommended by:
    Empty Vessel, nancelot

    Moses or Jesus didn't make any comments about guns, because then we could have endless religious wars parsing ancient texts ... oh wait.

    Republicans: Taking the country back ... to the 19th century

    by yet another liberal on Sat Dec 15, 2012 at 10:26:42 AM PST

  •  I have always felt that there were obvious (6+ / 0-)

    parallels to the abortion issue. The SCOTUS has determined that we have the right to abortion, but that does not mean that we have the unquestioned right to abortion throughout all 9 months of pregnancy. Termination after the point of viability (third trimester) is usually only possible when the life or the health of the mother is at stake. On the other hand, states do not have the right to ban all abortions (although many of the red states have tried).

    •  Yup, and the same issues are all over (2+ / 0-)
      Recommended by:
      blue jersey mom, nancelot

      1st amendment cases, where does reasonable and unreasonable lie.  Its a hard question even among people arguing in good faith and with good will.

      I am still uncomfortable with hate crime legislation (though I support it).

      "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

      by Empty Vessel on Sat Dec 15, 2012 at 10:31:57 AM PST

      [ Parent ]

  •  This is exactly the problem I have w/ this debate. (1+ / 0-)
    Recommended by:
    Empty Vessel

    The two sides are almost never discussing the same thing. One side seems to be debating the question, "Do we have the right, and if we do, what can we practically change?"; while the other is debating a different question: "Should we have the right, and if so, what limits should we place on it?" Honestly, it doesn't matter to me if we do have the right to own assault weapons if I don't believe we should have it. If the nation collectively decides that we should limit the right to own guns, then what we have in place now will be changed.

    "In an individual, selfishness uglifies the soul; for the human species, selfishness is extinction." -Cloud Atlas, by David Mitchell

    by rigcath on Sat Dec 15, 2012 at 10:35:26 AM PST

  •  Obviously we have the right to constrain gun (1+ / 0-)
    Recommended by:
    Empty Vessel

    owners at the federal level with respect to both where they may take their guns and what kind they may own. Otherwise, we wouldn't need to have our carry-on bags checked at the airport, we could all just carry our guns on board, and people would be free to carry around personal missle launchers.

    That said, no law will stop a murderer.

    “Social Security has nothing to do with balancing a budget or erasing or lowering the deficit.” -- Ronald Reagan, 1984 debate with Walter Mondale

    by RJDixon74135 on Sat Dec 15, 2012 at 10:55:57 AM PST

    •  not sure I agree entirely with the last statement (3+ / 0-)

      I agree that no law will stop all murderers.

      But mandatory wait periods may stop some crimes of passion.  If there is a class of people I am scared of, its people who want a gun RIGHT FUCKING NOW!  

      Some restrictions on clip size might stop the 3rd, 4th and 5th murders.

      some gun laws can reduce murder, others perhaps not.  the trick is to figure out which are which.

      "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

      by Empty Vessel on Sat Dec 15, 2012 at 11:02:22 AM PST

      [ Parent ]

      •  You're right, Empty Vessel. (3+ / 0-)
        Recommended by:
        Empty Vessel, Hey338Too, john07801

        I am positive that people can go to a gun show this afternoon and walk out with a gun without showing any ID or seeing any from the seller. I have seen it happen.

        I went to a gun show to sell some guns sent from another state to a friend of mine by his parents. They knew full well that he was both suicidal and had suffered for more than 20 years with schizophrenia, yet that's what they did.

        What I saw at the gun show was equally creepy.

        “Social Security has nothing to do with balancing a budget or erasing or lowering the deficit.” -- Ronald Reagan, 1984 debate with Walter Mondale

        by RJDixon74135 on Sat Dec 15, 2012 at 11:25:24 AM PST

        [ Parent ]

  •  I do think it should hold at least some position (2+ / 0-)
    Recommended by:
    Empty Vessel, Glen The Plumber

    in a debate, for certain wordings.  Is it vague, sure.  Intentionally so, no doubt.  But even with intentional vagueness, the Founders thought it necessary not only to say 'militia', not only 'regulated militia' but all the way to 'well-regulated militia'.  That seems like a pretty strong phrase for an otherwise intentionally vague sentence.  It's still open for interpretation, but it's a clause that's been basically ignored by all sides.

    •  Its there (3+ / 0-)

      but unless I am arguing that arms should be limited to the militia (National Guard and Military), it just doesn't help me much in my argument.  That is, any non-nutjob gun rights supporter must concede that they do not have the right to carry anything, all the time.  

      So, your interpretation of the 2nd doesn't change anything--they don't have a universal right whether your interpretation is right or not.

      I guess, what I am saying is that your interpretation of the 2nd amendment is superfluous (but not necessarily wrong) in the gun control debate.  So why bring it up and derail yourself into debates over original intent and so-on?

      You already have plenty of precedent to make an argument based on reasonable limitations without mentioning the 2nd amendment at all.

      "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

      by Empty Vessel on Sat Dec 15, 2012 at 12:58:18 PM PST

      [ Parent ]

  •  Thank you for your series (0+ / 0-)

    As someone who is uncomfortable with guns, I appreciate you and the RKBA Dkos community for being willing to be open and attempt to be informative.

    What I don't get is how this

    A well regulated militia being necessary to the security of a free state
    is vague. It seems that the whole purpose of the amendment is for the security of a free people.

    My uncle, when I was growing up, was an outdoors man. He fished and hunted. I inherited 2 of his hunting rifles, and while I am uncomfortable with their presence, I am reminded that for Americans past and present, this was a way of life, necessity.

    I am even willing to say that some people are as devoted to their guns as others are to their pit bulls.
    But I am unwilling to sacrifice another American to the god of 2nd Amendment absolutism.

    "I feel like I'm still waiting to meet my true self. I'm assuming it's gonna be in a dark alley and there's gonna be a fight." ---Rachel Maddow

    by never forget 2000 on Tue Dec 18, 2012 at 05:47:07 PM PST

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