Editore"s Note
Tilting at Windmills

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November 20, 2007
By: Kevin Drum

GUNS....From the LA Times:

The Supreme Court agreed today to take up one of the great debates involving the Constitution and to rule squarely on whether the 2nd Amendment gives individuals the right to have a gun at home for self-defense.

The justices said they would review a ruling that struck down a 31-year-old ban on handguns in Washington.

Good. Regardless of which side you take on this, I've long been astonished that, for all practical purposes, the Supreme Court has never ruled definitively on whether the 2nd Amendment protects individual gun rights.

Of course, the bad news is that this puts gun rights front and center in next year's election, which is almost certainly something that Democrats would prefer to avoid. They better get their talking points ready.

(FWIW — which is pretty close to nothing — my own view has long been that both the wording and the history of the 2nd Amendment support a limited individual right to own guns. You can't ban 'em, but you can regulate 'em.)

Kevin Drum 2:18 PM Permalink | Trackbacks | Comments (155)

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Comments

Gosh. I can't wait to see what the court decides.

Posted by: Pat on November 20, 2007 at 2:26 PM | PERMALINK

Assuming the Court rules narrowly, which Roberts like to encourage, whichever side loses this case will still have a sliver of hope. That is because the case deals with Wash DC. There is a chance that it will be an open question whether the 2nd amendment applies the same way to the states as it does to Wash DC.

Posted by: Jim E. on November 20, 2007 at 2:28 PM | PERMALINK

I suggest it may be interesting if the Court does uphold Wash, DC's right to ban guns. Would the gun rights activists blame the "conservative" court as appointed by Republicans as the focus of their scorn?

Posted by: pencarrow on November 20, 2007 at 2:31 PM | PERMALINK

The only citizens who have a right to own guns are members of the National Guard. Read the 2nd Amendment carefully.

Posted by: Old Hat on November 20, 2007 at 2:35 PM | PERMALINK

great. this is probably one of the only courts in history that could actually rule guns are protected outside of militias.

Posted by: shams on November 20, 2007 at 2:35 PM | PERMALINK

The conservative Supreme Court decides to take this case going into an election that is nearly un-winnable for conservatives.

8 years ago I would have said coincidence, today, we can assume this was not.

Posted by: ScottW on November 20, 2007 at 2:35 PM | PERMALINK

The problem here is that the Second Amendment is close to gibberish. The people who gave us the Constitution and Bill of Rights -- drafters, voters, and everybody in between -- over all did a very good job. They weren't perfect, however, and this is one of the striking imperfections. If they were trying to say that government cannot interfere with a citizen's right to own a flintlock pistol (or whatever), they did a lousy job of saying so. If they were trying to say that states may raise militias regardless of the federal government's authority over armies, they a lousy job of saying that. If they were trying to say something else, they did an even worse job. This is, by the way, a dirty little secret of appellate law: a great deal of high price arguing and pontificating over the true meaning of language that, very often, is actually gibberish -- and, usually, neither side dares to admit it.

Posted by: kendo on November 20, 2007 at 2:35 PM | PERMALINK

They ought to allow everyone who wants to own a gun to have one. Statistically guns are used most frequently against people who live in the house in which the gun is kept. Let 'em all win the Darwin awards, I say.

Posted by: Diana on November 20, 2007 at 2:36 PM | PERMALINK

I have no doubt the court will let the ruling stand. As a DC resident I have paid a bit of attention. While I do wonder that the ban was unconstitutional, on the mundane level I am not thrilled with the idea of my neighbors having weapons. Too many of them are careless and too many of them are idiots.

They think weapons make them safer, they think they would actually use it to defend themselves - I am not so sure either are necessarily true.

To me, weapons are a false sense of security because most people overestimate themselves and their abilities. No one should own a gun if they don't secure it properly, learn how to use it, be willing to kill someone with it, and live with the consequences of killing someone. They have to have the quick thinking skills to use a weapon in the first place, then there is the fact that they would have to differential between friend (which you don't want to shoot) and foe (which you do). They also think just pointing and threatening or wounding someone will work. It won't. They are more likely to have their own weapon turned on them.

Posted by: ET on November 20, 2007 at 2:37 PM | PERMALINK

Minutemen with blackpowder rifles to protect the citizenry from Redcoats and marauding Indians suddenly transformed into any yahoo at a gun show with a hankering to own an AR-15 with an infrared scope and a armor piercing bullets.

Makes sense, right?

Posted by: Old Hat on November 20, 2007 at 2:39 PM | PERMALINK

That's funny. My reading is that the 2nd Amendment specifically doesn't protect individual ownership of firearms. It very specifically establishes that local governments be armed.

Nevertheless, with 200 years of legalized gun ownership behind us, it's a moot point.

If anything, the way to limit individual gun ownership might be to require military training and service as a prerequisite of gun ownership. Seems like that would be perfectly in keeping with the Constitution.

Posted by: Saam Barrager on November 20, 2007 at 2:40 PM | PERMALINK

As the Bush administration goes towards its end on I become more nervous--particularly if a Democrat wins. Will they give up power?

I think its an open question.

Posted by: MNPundit on November 20, 2007 at 2:41 PM | PERMALINK

You stupid liberals don't understand HOW GOOD, STRONG, AND SAFE GUNS MAKE US FEEL. We don't care how you feel. We care about how WE feel. You idiots. Go ahead with your sex and your drugs. You're all selfish babies with no respect for our great traditions.

Posted by: Free Lover of Freedom and Free Liberty on November 20, 2007 at 2:42 PM | PERMALINK

For all the strict constructionists, here's what you have to work with:

"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."

Looks like you could regulate guns to me. Otherwise everyone has to be in a militia.

Posted by: Sebastian on November 20, 2007 at 2:44 PM | PERMALINK

I agree with Diana. The Feds ought to buy everyone in a Red state a couple dozen guns. All with hair triggers. And while they're at it back up a beer truck to the front porch. Then spread rumors Jed boinked their Mama. Stir lightly and duck.

Posted by: steve duncan on November 20, 2007 at 2:45 PM | PERMALINK

It has always been my interpretation that the second amendment guarantees all US citizens to use whatever weapons are used by the Army, including rocket launchers, tanks and Apache helicopters.

Posted by: Mark on November 20, 2007 at 2:47 PM | PERMALINK

The case itself, and the Supreme Court's hearing of it, is probably not too relevant: one of the NRA's key strategies of the last 10-15 years has been to lobby for changes in state constitutions that make it extremely difficult to introduce gun regulation at the state level.

I think that ScottW above nails it.

Posted by: JM on November 20, 2007 at 2:47 PM | PERMALINK

The 2nd amendment doesn't mention guns at all; it talks about "arms". There are hundreds of laws on the books regulating everything from switchblades to fissile materials. Try invoking the 2nd amendment when you're caught with those things and see how far it gets you.

Posted by: shams on November 20, 2007 at 2:48 PM | PERMALINK

For what its worth, again probably not much, your reading comports with mine. The 2nd amendment provides an individual right to own guns. That right is not absolute, of course, and it is for the purpose of enabling a citizen's militia. Thus, the number and type of guns allowed to be owned could be limited to those an individual could personally carry to a muster. The militia's command needs to know what sort of arms are available so required registration of guns would be permitted. Etc.

Posted by: dwight Meredith on November 20, 2007 at 2:49 PM | PERMALINK

Personal firearms are the biggest damned deal mankind ever unleashed on itself. Everything changed the second that lead first pierced the chest of an opponent. A handgun started World War I, and if a person does not realize what the hell kind of power they are holding every time they pick one of the things up, they shouldn't be allowed in the same area code with firearms, let alone own them. (And for the record, I freely admit that I own an arsenal.)

Posted by: Blue Girl, Red State (aka G.C.) on November 20, 2007 at 2:51 PM | PERMALINK

why do you have an "arsenal", blue girl?

Posted by: shams on November 20, 2007 at 2:54 PM | PERMALINK

Unless I have missed something, this case will deal solely with the DC ban (every story I have read mentions only that case). As such, I expect the court to unhold the individual right to own a gun. The amendment clearly reserves the right to the people, not militias, and not the states. I have always thought it clear that the first part of the amendment was protecting the individual states' rights to form such militias.

A secondary question is whether this right makes unconstitutional state laws banning guns. The post Civil War amendments would seems to suggest this is the case.

There will be further cases defining their proper extent, but it is safe to write that regulations will still be applied to gun ownership in the future.

Posted by: Yancey Ward on November 20, 2007 at 2:55 PM | PERMALINK

We hunt. We are "slow food" all the way. (And we have both inherited quite a few firearms from uncles as they passed on.)

Posted by: Blue Girl, Red State (aka G.C.) on November 20, 2007 at 2:57 PM | PERMALINK

I have never owned a hand gun, but a personal biological or nuclear weapon might be desirable. According to a strict reading of the constitution, these weapons should be just as constitutionally protected as any other arms.

Posted by: Brojo on November 20, 2007 at 3:02 PM | PERMALINK

if a person does not realize what the hell kind of power they are holding every time they pick one of the things up, they shouldn't be allowed in the same area code with firearms
The argument starts when you ask who should decide.

..."slow food"...
If it's that slow, you shouldn't need guns!

Posted by: thersites on November 20, 2007 at 3:03 PM | PERMALINK

Blue Girl,

Hmmm. I suppose I shall never say anything bad about you in the future (not that I can recall doing so in the past, but now I have additional incentive to be nice).

Posted by: Yancey Ward on November 20, 2007 at 3:04 PM | PERMALINK

The second amendment isn't all that contradictory and doesn't require a lot of arm-waving. One simply has to consider the framing of the issue at that time.

Remember that the first battle of the Revolutionary War occured when British troops were dispatched to confiscate arms and ammunition held by the citizen-militia in Concord.

The second amendment recognizes:

1) Need for a militia. A milita is an organization of armed citizenry.

2) To have an armed citizenry, the citizens must be allowed to keep and bear arms.

Simple enough.

Posted by: Buford on November 20, 2007 at 3:06 PM | PERMALINK

I don't disagree, Buford, but you have to remember that you couldn't kill 20 people in 10 seconds with a musket. It's well past time to re-evaluate what an armed citizen militia means in the modern age.

Posted by: mmy on November 20, 2007 at 3:12 PM | PERMALINK

The argument starts when you ask who should decide.

Me, of course!

If it's that slow, you shouldn't need guns!

I came up against some stubborn carrots and shell beans last fall when we harvested. The Browning was necessary...

Posted by: Blue Girl, Red State (aka G.C.) on November 20, 2007 at 3:12 PM | PERMALINK

I have trouble with the second amendment because I think it clearly states that people should be able to keep weapons. The reason given is that the local government might need to pull together a militia, and everyone needs to bring their own firearms. The reasoning behind the amendment is "no longer operative". (I mean, the amendment could have read "In order to make sure everyone has a pony, the right to bear arms shall not be infringed" and it would still say people have the right to bear arms).

But as has been pointed out, it says "arms" not "guns" -- and the sorts of "arms" that are available now far outstrip anything available in the 18th century. (There were cannons, though....I'm pretty sure the second amendment doesn't allow anyone to keep a cannon in their home....)

Surely there's a domestic tranquility argument to be made somewhere.

I took a trip out west, driving alone, a few years ago. Miles of nothing. I suddenly understood why many people who don't live near the coast feel the need to have a gun.

Posted by: zmulls on November 20, 2007 at 3:23 PM | PERMALINK

It's the bullets, stupid.

Posted by: RobertSeattle on November 20, 2007 at 3:27 PM | PERMALINK

If they wanted to employ the liberals' "reasoning" that was used in Roe, maybe Scalia and the boys will discover a "penumbra" emanating from the 2nd Amendment that would require the government to provide arms and ammo to all citizens so as to better exercise their 2nd Amendment rights.

All kidding aside, apart from the fun of watching all the Dem candidates tie themselves up in knots having to answer the question do they believe that the 2nd Amendment provides an individual right to bear arms while maintaning their belief in gun control, I do not believe that the either side on the Court would grant cert without already knowing that they would win on the merits. While I'm know for a fact that Justice Kennedy will be in the majority, I'm only pretty sure (80-90%) that he will be on the right side of upholding the Circuit Court's decision striking down DC's ban.

Posted by: Chicounsel on November 20, 2007 at 3:36 PM | PERMALINK

you have to remember that you couldn't kill 20 people in 10 seconds with a musket

I could.

Posted by: D. Cheney on November 20, 2007 at 3:36 PM | PERMALINK

If firearms can be regulated, then handguns can be outlawed. Rifles, shotguns, etc. would still be legal, but concealable handguns, no.

Sawed-off shotguns and pistol-grip stocks for rifles/shotguns are already illegal, because they allow for concealment. Outlaw handguns, let the hunters and home-defenders keep their rifles.

Seems a reasonable line to draw.

Posted by: luci on November 20, 2007 at 3:36 PM | PERMALINK

This article by Garry Wills might be useful.

http://www.potowmack.org/garwills.html

Shorter version: the Second Amendment deals with the militia, and only the militia. There may very well be other bases for the individual right to own a gun, such as the Ninth Amendment, natural law, tradition, etc.

Posted by: DJ on November 20, 2007 at 3:37 PM | PERMALINK

Just a quick observation-- when I was teaching law school, I published a couple of articles that touched on the Second Amendment and I was overwhelmed at the massive email attack the NLRA generated on a nobody like me.

As for Mr. Drum's substantive reading of the Second Amendment, I would only point out that the text DOES talk about well-regulated militias, explicitly, but it DOES NOT ever mention guns or firearms or rifles or the like. Its reference to "keep and bear arms" is, of course, a term of art used in British law going back to centuries before there were firearms. We still use the same word today the same way-- "arms" as in "Strategic Arms Limitations Treaty"-- so unless one believes the Second Amendment's protection of well-regulated militias means I have an individual right to keep and bear nuclear weapons, then I cannot see how the amendment has anything to say about guns in particular or individual rights of any sort.

On the other hand, I suspect Mr.Drum's reading, which I honestly believe is the product of the most successful PR campaign of all time, may well prevail in the current judicial/social environment. Proof that a well-financed public campaign can influence jurisprudence quite significantly.

Posted by: J. R. Prince on November 20, 2007 at 3:37 PM | PERMALINK

Since the Court re-wrote the question presented to include both DC's ban on guns and its mandatory trigger lock provisions, I would guess that the likely outcome is to split the baby: Absolute ban prohibited, reasonable regulations upheld. Just an educated guess, though.

Let's remember, though, that the 2d Amendment by its terms applies only to the federal government. Even if the Court rules that it protects some individual right to bear arms, in order for them to apply it to bar state/local regulation of firearms they would have to (in a later case) decide that the 2d Amendment was "incorporated" through the 14th Amendment's Due Process clause. (That's how certain of the other rights in the Bill of Rights -- not all of them, mind you -- have been deemed applicable to the states.) "Incorporation" is really going to go against the grain of the conservatives here -- at least, against their professed principles. Not that that will necessarily stop them, but it will be interesting to see the intellectual knots they would have to tie themselves up in.

Posted by: Glenn on November 20, 2007 at 3:46 PM | PERMALINK

So, if the court rules against DC, and that individuals have a right to own handguns, does this mean John Hinkley can buy a gun?

How do they wiggle out of the laws forbidding certain people from owning guns? When those people are not mentioned in the Constitution?

Posted by: Tigershark on November 20, 2007 at 3:46 PM | PERMALINK

Sebastian writes:
"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."

Looks like you could regulate guns to me. Otherwise everyone has to be in a militia.

Looking at it the other way, everyone can keep and bear arms, but by that act, they become members of the militia, and the state has the power to regulate them. In particular, it needs to know who has arms, and where they are. It can summon them at need, and require them to be trained. And just as an army allows only certain soldiers to have certain kinds of arms, the state can regulate (within reason) what kinds of arms a citizen can possess.

Posted by: Jonrysh on November 20, 2007 at 3:47 PM | PERMALINK

"You can't ban 'em, but you can regulate 'em"

Well, you can ban them all you want, but just because the ban is in effect doesn't mean everyone just ups and says, "yep, no gun here."
Reality trumps theory.
That said, the smart course is that we regulate them, which is just fine with me. I would love to seem some regulations in place because there are some firearms that are just simply not meant to be in the hands of idiots (which imo, constitutes about 80% of the gun owners in this nation).

I actually had a guy ask me at work one day, "should I get a .357 magnum for home defense, or a .44 magnum?"
I asked him, "have you ever go shooting with one of those before?"
His look went blank, "A pistol...no."
I said, "You live in an apartment, don't you?"
To which he said, "yeah, I do...uh...why do you ask?"

Anybody who can't put together the two aforementioned ideas and reach a knowledgable conclusion should not own a gun, ever, period, end of discussion.

Posted by: sheerahkahn on November 20, 2007 at 3:55 PM | PERMALINK

small correction to my earlier comment: the 2d Amendment does apply only to the federal gov't (so far), but it's probably not correct to say "by its terms." By its actual wording, it doesn't say one way or the other (most of the Bill of Rights amendments don't), but the Bill of Rights was very early on interpreted to only apply to the federal gov't (until the 14th amendment incorporation began in the 20th Century).

Posted by: Glenn on November 20, 2007 at 3:55 PM | PERMALINK

Wouldn't Original Doctrine (or whatever the gaggle of people who claim they want the Constitution to be "interpreted according to the knowledge of that time") mean that sure, you can have a gun, providing it's a flintlock musket?

Posted by: grumpy realist on November 20, 2007 at 3:55 PM | PERMALINK

There is no conflict whatever between individual gun ownership and regulation.

We have individual automobile ownership, with regulation. Appropriately, since cars, like guns, are potential deadly weapons and are often used in crimes. Why not simply apply the same level of licensing, identification, and regulation to guns as we do to cars?

If the Constitution had said something about the right to own donkey carts, I wonder if we would now have a crowd arguing that licensing of cars is unconstitutional.

Posted by: Virginia on November 20, 2007 at 3:56 PM | PERMALINK

It's the bullets, stupid.

"It isn't the bullet that kills you. It's the hole." Laurie Anderson

Posted by: Blue Girl, Red State (aka G.C.) on November 20, 2007 at 3:59 PM | PERMALINK
The Supreme Court agreed today to take up one of the great debates involving the Constitution and to rule squarely on whether the 2nd Amendment gives individuals the right to have a gun at home for self-defense.

Wow. That's pretty amazingly misleading summary of anything the Supreme Court could conceivably have done. They certainly did not agree to rule on a specific issue (much less squarely) they agreed to take a particular case, which centers around a specific issue, which means they are somewhat likely to rule on something related to that issue (though, of course, its always possible that they'll find some completely unrelated issue in the case dispositive and avoid the issue everyone cares about altogether; it would hardly be the first time they've done that.)

To portray them as agreeing to not only rule on a particular issue, but to rule squarely on it is beyond hyperbolic.


Posted by: cmdicely on November 20, 2007 at 4:03 PM | PERMALINK

We have individual automobile ownership, with regulation. Appropriately, since cars, like guns, are potential deadly weapons and are often used in crimes. Why not simply apply the same level of licensing, identification, and regulation to guns as we do to cars?

That precise analogy was advanced by Chief Justice Warren Burger.

Posted by: DJ on November 20, 2007 at 4:04 PM | PERMALINK
Otherwise everyone has to be in a militia.

The Constitution presupposes and ascribes the federal and state governments set roles in respect to a universal militia.

Posted by: cmdicely on November 20, 2007 at 4:05 PM | PERMALINK

"It's the bullets, stupid."

And here in lies the genius of which I support.
Chris Rock mentioned about the fact that you cannot effectively regulate guns...which he is right.
However, you can certainly tax the hell out of the ammo, and price fixing ammo is a good thing too.

You want to own a .50 cal, high powered rifle...okay, how does $30.00 a round ($300.00/box of 10) sound to you?

You like the nifty sound of a .223 popping off early in the wee hours of the morning, excellent, how does $1.50 per round (or $30.00/box of 20) sound to you?

You like to flex your manliness with that Ruger .44 magnum, right on, how's $3.00 a round (or $150.00/box of 50) sound to you?

I think once the price is adjusted we'll find out how many people are willing to spend the money to support their Right.

Posted by: sheerahkahn on November 20, 2007 at 4:10 PM | PERMALINK

Didn't the Supreme Court rule on the 2nd amendment in 1939?. And I think that case hasn't been overturned yet.

Posted by: Indiana Chaz on November 20, 2007 at 4:12 PM | PERMALINK

Well, the Second Amendment certainly doesn't say, "Congress shall pass no law respecting" the bearing of arms, does it?

I've looked at the history behind some of this in passing. Every able-bodied man was in the "militia" at the time (not women), so the intended effect of the "militia" phrase in the amendment is an interesting question, if that's an aid to construction.

Posted by: David in NY on November 20, 2007 at 4:12 PM | PERMALINK

Incidentally, my opinion is that the 2nd Amendment clearly creates an individual right, but that it is unusual in explicitly including a purpose clause. Since no Constitutional rights are ever interpreted as being unlimited, and their limitations are inferred from their (usually inferred) purposes, the boundaries of the 2nd Amendment right should be easier to infer since its purpose is explicit. Thus, the 2nd Amendment right will apply most strongly against the federal government within the jurisdiction of one of the 50 states, and when exercised in a context essential to the maintenance of a state militia; the more distant it gets from that situation, the more heavily other rights of persons, powers and prerogatives of government (state or federal) should be weighed against the 2nd Amendment right to keep and bear arms.

Where the federal government is acting in a direct governing role over federal territory, it will take on the role of the state, and where a state (or the feds acting in place of a state) restriction on weapon ownership is consistent with and part of the regulation of the militia, rather than a barrier to the existence of a citizen militia, the 2nd Amendment should be at its lowest ebb, and probably succumb to the police powers of the state (or the feds governing directly).

Now, again, that's my personal opinion, not the way the Court is likely to rule.

Posted by: cmdicely on November 20, 2007 at 4:14 PM | PERMALINK

Political correctness is the supreme law of the land, but:

http://www.box.net/public/5ytbz81p68

"To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them." (Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.)

"The great object is that every man be armed . . . Everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)

"The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in his Federalist Paper No. 26.)

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -Thomas Jefferson

"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first." -Thomas Jefferson

Posted by: Luther on November 20, 2007 at 4:22 PM | PERMALINK

Didn't the Supreme Court rule on the 2nd amendment in 1939?. And I think that case hasn't been overturned yet.

Yes. United States v. Miller, 307 U.S. 174 (1939).

Posted by: DJ on November 20, 2007 at 4:23 PM | PERMALINK

"Looking at it the other way, everyone can keep and bear arms, but by that act, they become members of the militia, and the state has the power to regulate them."

The germ of an interesting idea, here.

Whenever Kevin posts on a topic like this, it becomes difficult to differentiate parody from advocacy -- at least in the case of comments like those of Mark and "Free Lover of Freedom and Free Liberty" (the latter of which is parody all by itself) above.

Posted by: David in NY on November 20, 2007 at 4:23 PM | PERMALINK

Everybody knows a sawed off shotgun is the best home protector. But they're probably illegal. Make a terrible mess, too.

Posted by: slanted tom on November 20, 2007 at 4:25 PM | PERMALINK

It's vague as to what is meant by "militia," and what is meant by a "free state." Does the 2nd Amendment exist to provide further protection of the national entity state or armed citizens to protect the individual states from central tyranny?

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.

Clearly a "militia" isn't necessary for a nation-state with a standing army.

To me it can only be interpreted that the Founding Fathers didn't even trust the central government of the democracy they were creating to not abridge the rest of the constitution on a regular basis, and that the vaguely described "well regulated militia" was something completely different than today's National Guard, which others have suggested, but is just an extension the military.

In other words, did they have in mind today's yahoos who run around in the woods in camo "playing army" with personal arsenals as the militia? Are these people, as most of them would argue, the last defense against internal repression and/or the UN forces they believe to be waiting in Canada to enslave us under one world government?

Posted by: JeffII on November 20, 2007 at 4:25 PM | PERMALINK

Luther, stop cherry-picking those quotes. Especially the Patrick Henry one. Here's the full quote:

Our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall he doubly armed. The great object is that every man [of the militia] be armed. But can the people afford to pay for double sets of arms, &c? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case.

Henry is clearly pointing out that if the various state governments could not properly equip their militias, the federal government could not, either.

Posted by: DJ on November 20, 2007 at 4:26 PM | PERMALINK

I think cmdicely's construction is a nice elaboration of Jonrysh's point that I quote above.

Posted by: David in NY on November 20, 2007 at 4:27 PM | PERMALINK

One of the forgotten points about gun rights: if you really believe in strict construction/original intent, then shouldn't strictness apply to the interpretation of concepts referred to? For example, the right to keep and bear should refer to the sort of "arms" referenced by the writers, using what existed at the time. Maybe the Framers wouldn't have wanted citizens to have semi-automatic, rifles shooting ogive bullets at 3,000 fps, no? Conservatives never bring that up, when they talk about original intent (and the issue goes beyond just application to guns, or course: communications media, military issues, etc.) I still think we have the right to keep and bear modern arms (which BTW does not imply either secrecy of ownership nor concealability), but I don't believe in strict construction/original intent, so I'm not a hypocrit.

tyrannogenius

Posted by: Neil B. on November 20, 2007 at 4:27 PM | PERMALINK

I got skin in this one -- a brother and his wife murdered in a robbery by a junkie. The weapon was a .40 calibre pistol owned by a guy who kept it in his house -- by his bed, I think, with the (relatively hard to get) bullets. A heroin addict graduated from smash and grab burglaries when he kicked in the door, found some cash -- and the weapon. The guy's first victim, not long before my brother and his wife, was also killed in a robbery: he had a gun for protection in his store. It was in the back room when he died.

IIRC, the Supremes have long held that We, the People gave Congress the authority to regulate firearms, including handguns: US v Miller was about a sawed off shotgun. (Okay, so I dunno if Miller actually sawed off the barrel: it was short.) The only limitation the Second Amendment places on the Congress is that it cannot regulate firearms SUCH THAT the regulations interfere with the states' capacity to organize a "well regulated militia".

"In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense...." thus, the 1939 case.

Seems to me that anybody could argue to the Supremes with that exact language, replacing the words that mean 'sawed off shotgun' with basically any weapon that any state chose to regulate: cuz it's up to the STATES how their militiae are regulated. Since Miller has been Constitutional law for 70 years, and I dunno that the need for less well regulated state militia has been established since, the precedent looks solid.

Kevin may be correct that the Supremes will wiggle out of this on the theory that the District is not a state, of course: but I dunno that this particular NRA argument looks compelling.

Posted by: theAmericanist on November 20, 2007 at 4:27 PM | PERMALINK

The true test of political leadership involves forthrightly and publicly confronting real problems, regardless of any inherent or perceived risks, and developing responsible and practical proposals for the public to consider as potential solutions.

Political cowards will seek always to maintain the present status quo, however fleeting it might be, either by ignoring such problems altogether, or by proposing painless, risk-adverse solutions that merely postpone the consequences until someone else is on watch.

Political demagogues and tyrants are often defined by their willingness to manufacture faux controversy in order to distract the public's attention from real problems. Failing that, they will seek to misrepresent those same problems by either presenting the public with a series of patently false choices, or by offering up to citizens one or more all-too-conveniently available scapegoats.

Posted by: Donald from Hawaii on November 20, 2007 at 4:29 PM | PERMALINK

Any research into who owned the artillery? I bet not your Minutemen. And was there any restriction on owning artillery, or was that not necessary given the cost and the absence of "gunnutus modernicus" at the time.

Posted by: David in NY on November 20, 2007 at 4:29 PM | PERMALINK

@Kevin

Your response is unfortunately what I have come to expect. Moderation without a basis in reason.

Posted by: adam on November 20, 2007 at 4:30 PM | PERMALINK

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

Jefferson should have realized how easy it is to get people to go along with tyranny. The first step for a would-be tyrant is to get an NRA endorsement.

Posted by: apm on November 20, 2007 at 4:30 PM | PERMALINK

Jonyrsh

If I follow you, then in order to own a gun, you must serve in a national militia at the very least. By serving, you still aren't guaranteed the ability to own every gun made by mankind. Or shoot them either.

The closest thing to that militia being the National Guard.

I've got no problem with that. Now there's a reason for wingnuts to join up. Buy a gun, serve your country. But for real.

Posted by: Sebastian on November 20, 2007 at 4:33 PM | PERMALINK

I don't disagree, Buford, but you have to remember that you couldn't kill 20 people in 10 seconds with a musket. It's well past time to re-evaluate what an armed citizen militia means in the modern age.

In 1787 the .75-caliber Brown Bess musket was standard issue to the British army and was one of the most fearsome and man-portable weapons of its day. It was the state-of-the-art in infantry weapons.

The men who wrote the First Amendment were surely thinking of quill pens, tongues and hand-operated printing presses. They couldn't send dangerous ideas around the world with the push of a button. Would you also say it is well past time to evaluate what freedoms of speech/press mean in the modern age? ;)

The Bill of Rights as a salad bar? Haven't we had enough of that from the Bushevicks?

Posted by: Conservative against Bush on November 20, 2007 at 4:34 PM | PERMALINK

TWO POINTS:

1) Any student of American history knows the early drafts of the 2nd Amendment contained a prohibition on a standing army, which makes the meaning and intent of the dependent clause, "A well-regulated militia, being necessary to the security of a Free State...", very clear.
2) The test of any law is, when taken to it's logical extreme, if it makes any sense. Therefore, if any person has an unrestricted right to bear arms, should Bill Gates be allowed to bear nuclear arms? He could certainly afford them! How about Warren Buffett? Should he be allowed to "bear" chemical weapons? If there are no limits on this right, why not?

It's pretty clear, isn't it? The Founders never intended the 2nd Amendment to ban any regulation of deadly weapons.

Posted by: The Conservative Deflator on November 20, 2007 at 4:36 PM | PERMALINK

Well, Google coughed this up: "American Artillery grew out of a small number of militia artillery companies in the Colonies. When war came, the members of these companies brought to the Patriot cause their expertise and their guns."

Wonder if "their guns" refers to "members" or "companies"? Did the members have cannon on the back porch? Kind of doubt it.

Posted by: David in NY on November 20, 2007 at 4:41 PM | PERMALINK

::Since the Court re-wrote the question presented to include both DC's ban on guns and its mandatory trigger lock provisions, I would guess that the likely outcome is to split the baby: Absolute ban prohibited, reasonable regulations upheld. Just an educated guess, though.::

Wonder if they could pull from precedent in another area and apply an "undue burden" standard...

Posted by: tam1MI on November 20, 2007 at 4:49 PM | PERMALINK

There were no privately owned artillery pieces on land in North America in 1787. There were lots of cannon and mankillers on ships, but that's a different Constitutional story -- "to RAISE an army and maintain a navy", plus the letters of marque clause.

"In 1787 the .75-caliber Brown Bess musket was standard issue to the British army and was one of the most fearsome and man-portable weapons of its day..." It was also more or less useless as a hunting weapon -- too big for small game, and not accurate enough for big critters.

If you owned one, it wasn't dual-use. You could argue that cuz the Founders intended to protect the people to own big honking muskets in 1787, in addition to the smaller calibre rifles they used for food, so a 21st century American can own.... well, all the weapons that the Supreme Court has ruled both Congress and the states can regulate.

It was PRECISELY private ownership of the standard issue military weapon "being necessary for the security of a Free state" that caused the Founders to write and accept "a well regulated militia" as the premise and purpose of the right.

If the Constitutional Convention had wanted to write "Congress shall make no law to infringe on the right of the people to bear arms..." they'd have SAID so.

Posted by: theAmericanist on November 20, 2007 at 4:55 PM | PERMALINK

If the Constitutional Convention had wanted to write "Congress shall make no law to infringe on the right of the people to bear arms..." they'd have SAID so.

Another way to look it is to examine those whose religious scruples (for example, Quakers) forbade them to serve in the military. Did this mean that they could not have a rifle for hunting? Of course not, because "keeping and bearing arms," which is a legal term of art, does NOT refer to possessing guns for personal use.

Posted by: DJ on November 20, 2007 at 5:02 PM | PERMALINK

It is quite depressing that an 18th century shoe should be required to fit a 21st century foot. So much of the deal of 1787 is anachronistic and inapplicable to our current interests, or it simply does not address our present concerns in any meaningful way. The militia interests of the time were practical and temporal; they were not derived from the reflections of John Locke. One of the problems of old and unreformed constitutions is that any meaning can be injected into the text as the conditions of life become ever more abstracted from the realities of past. The Bush administration’s lawyers have no problem constructing an argument for a constitutionally mandated unitary executive. If you get enough of them on the Supreme Court it becomes true.


Posted by: bellumregio on November 20, 2007 at 5:04 PM | PERMALINK

Wonder if "their guns" refers to "members" or "companies"? Did the members have cannon on the back porch? Kind of doubt it. Posted by: David in NY

David, is this just some coy spin on the army and marine boot camp mantra "This is my rifle, this is my gun"?

Posted by: JeffII on November 20, 2007 at 5:13 PM | PERMALINK

Conservative Against Bush: "In 1787 the .75-caliber Brown Bess musket was standard issue to the British army and was one of the most fearsome and man-portable weapons of its day. It was the state-of-the-art in infantry weapons."

The single-shot, muzzle-loaded "Brown Bess" was at its most fearsome when such weapons were fired en masse and in rolling sequence across a broad front line, thus allowing a military unit to achieve maximum firepower over a wide swath of the immediate territory before its aformentioned front line.

However, its effective range as an individual weapon was perhaps 100 yards, and that was only for the very best of marksmen. Further, the finest soldier or sharpshooter could at best squeeze off one round every fifteen seconds.

Therefore, a solitary rifleman who failed to bring down or immobilize his fast-approaching enemy with that one shot was laid entirely vulnerable. In such close-quartered combat, his 10-lb. rifle was most effective when fixed with it's standard-issue 17-in. cross-section bayonet, or when it was wielded as a club or bludgeon.

Posted by: Donald from Hawaii on November 20, 2007 at 5:14 PM | PERMALINK

Deflator, the Founders discussed this very issue. It's in the Federalist Papers. They wanted the
citizens to have parity with infantry soldiers. Soldiers in the late 1700s were issued muskets, but not large field pieces. In 2007, soldiers are issued M-16s, M-249s, grenades, etc. but not 105mm howitzers, tanks and and atomic bombs.

Google "The Embarrassing Second Amendment" by LIBERAL law professor Sanford Levinson.

Virginia sez: "We have individual automobile ownership, with regulation. Appropriately, since cars, like guns, are potential deadly weapons and are often used in crimes. Why not simply apply the same level of licensing, identification, and regulation to guns as we do to cars?"

For one thing, I don't know of anyone arguing that the mere desire to own an automobile is evil and the mark of a potential killer. As far as I know automobile registration was not advocated as a "first step" by automobile-haters who stated that they'd just as soon not have ANY cars in private hands. Driving is also a luxury not explicitly mentioned in the Bill of Rights. But I will overlook all that for the sake of argument. Here in the America you can buy as many motorcycles, cars, or trucks of any size as you want, and you only need to register them if you plan to operate them on public property. If you DO want to use them on public property, you can get a license to do so at age 16. This license is recognized in all 50 states. NO waiting periods, no background checks, nothing. No, treating guns like cars doesn't sound half-bad... ;-)

Posted by: Conservative Against Bush on November 20, 2007 at 5:14 PM | PERMALINK

Well, heck. Isn't this one the American Historical Association ought to file an amicus in, perhaps favoring neither party (not sure you can do the latter)?

Posted by: David in NY on November 20, 2007 at 5:15 PM | PERMALINK

Here's a question. What do people think the odds are of the Supreme Court holding that citizens have an unregulated right to own an M-249 (to wit, a machine gun)? (This is, I think the implication of Conservative Against Bush's argument.)

I say close to zero, but am interested in others' opinion (leave aside considerations of Constitutional construction and go with your gut).

(And no, JeffI, hadn't thought of that.)

Posted by: David in NY on November 20, 2007 at 5:23 PM | PERMALINK

Google "The Embarrassing Second Amendment" by LIBERAL law professor Sanford Levinson.

Perhaps you should. And go past the first entry, where you will learn that Professor Levinson is mistaken in his opinion.

Posted by: DJ on November 20, 2007 at 5:25 PM | PERMALINK

It might also be helpful to note, for purposes of this discussion, that most able-bodied males in the late 18th century colonial America were required by law to own muskets, because they were inherently considered part of the local militia, which was immediately -- and more often than not, solely -- responsible for the safety and well-being of their respective towns and villages. That is the genesis of the Constitution's Second Amendment.

Posted by: Donald from Hawaii on November 20, 2007 at 5:28 PM | PERMALINK

Deflator, the Founders discussed this very issue. It's in the Federalist Papers. They wanted the citizens to have parity with infantry soldiers.
Posted by: Conservative Against Bush

Careful there. The "Founders" indeed discussed this issue. But that's not necessarily the same discussion that went on in the Federalist Papers, which was written by just three of the Founding Fathers. The Federalists, in many ways, are analogous to today's right wingers. Hamilton and Jefferson were often on the opposite of many issues.

Posted by: JeffII on November 20, 2007 at 5:31 PM | PERMALINK

If you DO want to use them on public property, you can get a license to do so at age 16. This license is recognized in all 50 states. NO waiting periods, no background checks, nothing. No, treating guns like cars doesn't sound half-bad... ;-)
Posted by: Conservative Against Bush

It's not "nothing" There's the significant amount of classroom work and behind-the-wheel training that you have to have; the written, driving, and vision test that you must pass; the requirement that you must have auto insurance in order to exercise that right...are you sure you want to treat guns exactly like cars?

Posted by: DJ on November 20, 2007 at 5:33 PM | PERMALINK

David in NY--the AHA will probably steer clear of anything as even-handed as a "plague upon both your houses" amicus brief--my professional colleagues tend to be NAW, or Nervous About Weapons (I won't call this liberal or left-wing, since it's really neither, although often mistaken for one or the other). The NAW syndrome is often found afflicting those who have been made the victims of coercion with a weapon without having been similarly outfitted (which just might have either prevented or at least terminated the coercion). It also springs from a fundamental belief in the possibility of a non-violent society (admirable!) and a conviction that such is impossible without forced abandonment of private weapons (debatable and likely foolhardy). Since it's a hybrid of emotion and belief, it is ultimately unchallengeable; to do so leads to frustration on the challenger's side and defensiveness on the part of the true believer. Sigh.

By the way, I noticed some discussion earlier about the merits or deficiencies of the famed Brown Bess musket. I speak from some years' practice with a similar weapon when I note that it is an admirable small-game getter. Yes, it was designed as a volley weapon and yes, with round-ball it's not accurate out past 100 yards or so, but as with any hunting technology, it works just fine as long as the user figures out what it _will_ do, rather than ticking off all of the things that it won't, can't or doesn't. Hey, sounds like an approach to studying the Constitution.

Posted by: hdware on November 20, 2007 at 5:34 PM | PERMALINK

It's not "nothing" There's the significant amount of classroom work and behind-the-wheel training that you have to have; . . . Posted by: DJ

Not unless laws have changed. Oregon, which used to have some of the worst drivers in the country, didn't require driver's education up through the 1980s. I don't know if this has changed.

But the point, often made, is well-taken. No one should be allowed to own a gun of any kind without passing a licensing class with both a written and "practical" examination.

Posted by: JeffII on November 20, 2007 at 5:38 PM | PERMALINK

I once got into a discussion with a certified gun crazy. He asked me if I believed that everyone had a right to a gun. I said no, I had a right to have a gun but obviously he didn't.
He had no answer.

Not to beat it to death, but guns aren't the problem, they need to be heavily regulated.

Posted by: Anne Cole on November 20, 2007 at 6:03 PM | PERMALINK

I think this talk about citizen militia is moot. It has already been pretty much nullified, under Bush and a Republican led congress, no less.

In early 2006, the 109th Congress passed a controversial bill which grants the President the right to commandeer federal or state National Guard Troops and use them inside the United States. This bill, entitled the John Warner Defense Appropriation Act for Fiscal Year 2007 (H.R. 5122.ENR), contains a provision, (Section 1076)

Posted by: Ya Know... on November 20, 2007 at 6:09 PM | PERMALINK

Don't we already have (state) laws barring people who have been judged nuts from having guns? How do those square with the 2nd Amendment?

(My own feeling is you shouldn't be allowed to own a gun until you prove you know how to use it correctly. We have enough drunk weekend warriors running around Upstate NY shooting people and cows for me to believe in "unrestricted use")

Posted by: grumpy realist on November 20, 2007 at 6:22 PM | PERMALINK

(It truly never ceases to amaze me how Dice can miss the point: "They certainly did not agree to rule on a specific issue...".)

The question: "“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

The precedent: "In the absence of any evidence tending to show that possession or use of [particular type of weapon] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

The Supremes, particularly this SCOTUS, could choose to overturn Miller: but somebody would have to make a helluva case.

Posted by: theAmericanist on November 20, 2007 at 6:23 PM | PERMALINK

hdware, you are absolutely on the mark in your assessment.

My point was not to engage in a debate over the merits or demerits of the "Brown Bess" musket as a hunting or infantry weapon, but to highlight the folly of conflating that single-shot, muzzle-loading rifle with today's multi-shot, rapid-fire automatic weaponry by disclosing the former's very real limitations as an individual weapon of defense.

Proponents of an unfettered interpretation of the Second Amendment are literally comparing apples and oranges, when they seek to minimize the vast chasm of difference between the respective weaponry of two very distinct historical eras.

Posted by: Donald from Hawaii on November 20, 2007 at 6:25 PM | PERMALINK
It is quite depressing that an 18th century shoe should be required to fit a 21st century foot.

Well, yeah, many of the Founders believed, for good cause, that the Constitution would need thoroughly reviewed and replaced (or substantially updated) regularly, too.

Unfortunately, even people who are dedicated to the original intent of the text rarely pay any attention to that original meta-Constitutional intent.

Posted by: cmdicely on November 20, 2007 at 6:28 PM | PERMALINK
Proponents of an unfettered interpretation of the Second Amendment are literally comparing apples and oranges, when they seek to minimize the vast chasm of difference between the respective weaponry of two very distinct historical eras.

There's a difference between what the crafters of the 2nd Amendment actually intended, and what one thinks they might have intended had they foreseen modern firearms.

And there is a difference, also, between stating (either because of "original intent" or based on some other interpretive theory) that one reading of the Constitution is the right way to apply the Second Amendment and, on the other hand, saying that it is good policy. It is quite possible to believe (and certainly many people claim to) that the Court shouldn't be substituting its policy judgements for proper application of the substantive provisions of the Constitution where those provisions don't call for such a judgement, and if the substnative provisions of the Constitution are bad policy, they should be changed through amendment, not by the Court.

Posted by: cmdicely on November 20, 2007 at 6:33 PM | PERMALINK

It's odd that this seems so important. Remember, Washington DC is the only place in the country that has, or is likely to have, as stringent a law as this. It may be the only place that has ever had such a law. The Court could strike it down and make hardly a ripple in the legal or practical framework of the country. I think the same could probably be said of upholding the law, except for the exploded heads of most NRA members.

The real question is the degree of regulation of arms-bearing that is permitted. My guess: It will certainly be constitutional to criminalize possession of all firearms by felons, the mentally unfit and other such categories, as federal law does now. Since no one has taken up my invitation above to consider whether states and the Congress will retain the power to regulate automatic, semi-automatic, explosive, and other weapons, I reiterate my view that they will, almost certainly.

The Supreme Court will fundamentally vote for the status quo.

Posted by: David in NY on November 20, 2007 at 7:02 PM | PERMALINK

Kevin is correct on the proper interpretation of the second amendment. I think the Court will reach a similar conclusion and the issue probably will not be very important in the election.

Posted by: brian on November 20, 2007 at 7:38 PM | PERMALINK

BTW, as for why we need the second Amendment: I would say, not just to defend against an overreaching government, but against an overreaching aristocracy as well if need be. Let the conservatives smoke on that.

Posted by: Neil B. on November 20, 2007 at 7:43 PM | PERMALINK

Firearms are already heavily regulated by the states and the federal government.

Just a few examples: California has magazine capacity laws, bans possession of 'assault weapons' the feds ban full-automatic weapons and manufacture or import of large-capacity magazines, silencers, armor-piercing ammunition, shotguns with barrels shorter than 18" etc etc and yada. (it goes on and on).

Firearms transactions must take place using a Federal Firearms License. (etc). There's already lots of 'reasonable regulation' type laws on the books.

What seems to be at stake in this case is if the state can ban ownership of what would be described as a very common and conventional class of weapon. (pistols).

> "It is quite depressing that an 18th century shoe should be required to fit a 21st century foot."

That's right. In this day of worldwide NSA wiretaps it is simply quaint to imagine such archaic concepts as 'The people being secure in their persons,houses, papers and effects agains unreasonable searches and seizures... and that speedy and public trial part... what a hoot! How are we ever going to have secret courts with sealed verdicts?

The above are examples of why many people resist tampering with the bill of rights. They are fragile, and history teaches that given an inch, governments will take the proverbial mile.

(This is also why the NRA reacts with what appears to be paranoia about any gun laws)

Posted by: Buford on November 20, 2007 at 7:46 PM | PERMALINK

The idea of that having small arms widely distributed so that the federal government can't go all totalitarian is simply not supported by the history of modern warfare.

The simple fact is that a militia can't go mano-a-mano with a well-trained, well-equipped regular army, guns or no guns, if that army is prepared to use all the means at its disposal to fight.

What a militia can do is use bombs and booby traps, neither of which are protected by most interpretations of the 2nd amendment.

Look at what's happening in Iraq. It's not guys with hunting rifles picking off American troops, it's guys taking old artillery shells and turning them into IEDs.

Should the right to keep your own supply of shaped-charge IEDs be protected?

Posted by: Robert Merkel on November 20, 2007 at 7:54 PM | PERMALINK

David sez: "The Supreme Court will fundamentally vote for the status quo."

That's true, but it's also more significant than it sounds: for several decades, the NRA has essentially organized a vocal minority to consider the status quo unConstitutional AND a slide down the slippery slope toward confiscation.

I dunno how you get a 'status quo' decision out of the question: do the DC laws "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

As is his habit, Dice steers the discussion away from that, the central point on which the Supremes decided to hear arguments. (Why anybody thinks this yutz knows the cardinal directions is, well...)

If the Supremes say "no", a major piece of the NRA's symbiosis with the Republican Party evaporates.

If they say "yes", they will have overturned a precedent on the scale of Plessy, but WITHOUT any proven need: no facts to show that lockless privately owned handguns in DC are as essential to its nonexistent militia, the way 'separate but equal' wasn't possible.

We're gonna get the arguments AND the decision during a Presidential election year -- so NOT following analyses by the likes of Dice might be kinda important: FOCUS.

Prediction: in the end, Roberts is going to side with precedent AND with the Court's credibility: bracketing the Bush administration with two obviously partisan decisions isn't what he wants to do with his Chief-hood.

Posted by: theAmericanist on November 20, 2007 at 8:50 PM | PERMALINK

Actually, Americanist, maybe I'm wrong that they'll keep the status quo. They will certainly, I think, choose a rule that does not invalidate any federal law, disappointing the fondest hopes of the NRA. But they could invalidate the more restrictive laws such as those in cities like New York, which forbids guns without permits, and DC, and maybe other urban places I don't know about. This would piss off the non-NRA, however. Or they could just strike down the DC law, but leave the scope of permissible regulation unclear and "for another day" as they like to say. That would look nice for the NRA, but eventually, they'll be unhappy too.

Posted by: David in NY on November 20, 2007 at 9:02 PM | PERMALINK

From a practical standpoint, the second ammendment provides us with citizens well enough armed to be useful in combat.

Today that means assault rifles, anti-tank weapons and high explosives at least.

I'm one of those people who lives within wide stretches of nothing out in the West, so the thought doesn't bother me. It's already somewhat of a reality out here anyway with some people.

Posted by: Boronx on November 20, 2007 at 9:06 PM | PERMALINK

Should the right to keep your own supply of shaped-charge IEDs be protected?

Yes. Our interpretation of the second Ammendment should change as the nature of war changes.

Posted by: Boronx on November 20, 2007 at 9:09 PM | PERMALINK

Many private individuals did own cannons in the 18th century.

Posted by: PE on November 20, 2007 at 9:11 PM | PERMALINK

The amendment's purpose is to prevent the federal government from abolishing state militias in favor of maintaining a standing army. It did not confer a constitutional individual right to own a gun. Gun ownership was regulated at the state level.

The Framers feared standing armies, and wanted a guarantee that the national government could not abolish the state militias and maintain a standing army during peacetime.

George Mason refused to sign the Constitution w/o a clause restricting the congressional power to raise armies to empowering state militias and "against the dangers of regular troops or standing armies in time of peace." The Virginia ratifying convention proposed an amendment, based on Art. 13 of the Va. Dec.of Rights (still in effect) that included the eventual 2nd amend. language but also stated that: "standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." It was this amendment upon which Madison based his draft of the 2nd amendment.
Hopefully, "bad history" won't carry the day in this case. The notion that the amend. conferred such a right is simply wrong.

Posted by: leitrim on November 20, 2007 at 9:27 PM | PERMALINK

Happiness is a warm gun.

Posted by: John Lennon on November 20, 2007 at 9:46 PM | PERMALINK

Should the right to keep your own supply of shaped-charge IEDs be protected?

Not only that, but the 2ndA also protects the right of Iranians to supply them to Iraqis....

Posted by: Disputo on November 20, 2007 at 9:48 PM | PERMALINK

Thomas Jefferson's own thoughts on the 2nd Amendment:

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."

Those who would surmise otherwise are either extremely naive or are NOT reflecting on the relevant history of the pre-Revolutionary period.

Regardless of the "explanatory" rationale which precedes it, the right itself is stated unequivocally and is thus absolute:

"... the right of the people to keep and bear arms shall not be infringed."

And that explanatory rationale, read properly, merely reinforces Jefferson's assertion:

"A well regulated militia, being necessary to the security of a free state, ...

[Emphasis added.]

No government-controlled "National Guard" ensures the security of free states. And as things stand currently under the Bush Reich, the Guard -- no longer primarily an emergency functionary of state governors -- has been "appropriated" as a potential instrument of Federal repression.

Again, the right itself is specifically ascribed not to "militias", but to the people, so that they may form "well-regulated militias" as needed.

The Founders most assuredly knew exactly what they were doing, since the states themselves had insisted on those restrictions to the power of the Federal government as a pre-condition for ratification of the Constitution.
.

Posted by: Poilu on November 20, 2007 at 9:59 PM | PERMALINK

Can anybody dig up any writing or public speaking that Roberts, Alito, or Kennedy has done on this issue? From what I can remember, it did not come up during Roberts' or Alito's confirmation hearings.

I think that this id a great discussion, but trying to predict how the court will rule will be an exercise in futility unless more research into the individual justices is done.

I'll be interested to see how strict constructionists Scalia & Thomas wiggle their way around the fact that the word "guns" is not mentioned anywhere in the 2nd amendment!

Posted by: mfw13 on November 20, 2007 at 10:15 PM | PERMALINK

My reading:

There is a right to bear arms, but it isn't protected except in the context of a militia.

Posted by: captcrisis on November 20, 2007 at 10:55 PM | PERMALINK

For what it's worth, I'll go with the idea that the 2nd amendment is intended to maintain parity between the citizenry and the typical infantryman. So grenades, rpg's, etc.. are protected. I'll also go with the idea that it grants a right to regulate to the govt, to the effect of automobiles: You should be required to carry liability insurance, the govt. has the right to require registration, competency tests (but must also provide training adequate to meet the regulatory requirement at either no charge or at a trivial cost), and may hold you accountable for any harm caused by your weapons, i.e., if stolen and used in a murder, you are not guilty of murder, but are liable for wrongful death, and would have to carry appropriate liability insurance. For a rifle, even a semi-automatic assault rifle, this should be trivial, perhaps subsidized, as high rates would impose an unfair burden and effectively deny or restrict the basic ownership guaranteed in the 2nd amendment. If you want an RPG or a fully auto, or machine gun, the insurance burden would be greater, proportional to the potential for harm. At a million a life, a fully auto m16 would be a bit pricey to own in your home. However, you could perhaps keep it at a gun club, which, with a good vault and 24/7 security & owner access ( just in case the fictional UN forces don't call ahead before invading), would pay vastly lower liability than an easy to burglarize private home would.

I favor ownership. I'm a buddhist-taoist, and hold all life sacred, but I none the less accept the truth in the old western adage "god made man and colt made him equal."

I think too few contemporary progressives have sufficient experience with self defense of any kind to understand how important guns were in establishing democracy.

I've studied various Martial arts on and off since I was a kid. I'm 46 now. I have almost 17 years in AIkido (my favorite) alone, but I also have significant training in Wing Chun Kung Fu, Nisei Goju Karate-Do, and some Tai Chi Chuan. I also have Japanese sword and spear training. An untrained person twice my size (I'm 6' 1/2", and weigh 163 lbs. I have about 8% body fat, and ride a bike about 50 miles everyday since my teens, in NYC traffic.) has absolutely NO chance against me at all, unless he has a gun, which will stop me dead, instantly, with only a few months training. The armies of the Crowned heads of Europe were professionals, highly trained in sword, spear, bayonet, horsemanship, archery, etc... This was part of the lawful obligation of the nobility (my father's ancestors were the hereditary Lords of County Decies in Ireland), and the purpose for which they were deeded & entitled in the first place. Until the development of light, man portable, cheap firearms, a peasant revolt lasted until the knights showed up, and then they were defeated. Any reluctance to execute every last one was predicated entirely on the impact it would have on farm labor, and, thence the lord's income and wealth, since the peasants were part of his wealth and property.

I wouldn't stand a chance against 17th century nobility in a head to head. My training is good, but not as good as theirs was. I am a left-wing, green, progressive. BUt I have to agree with the right wing on this one. It's supposed to establish parity, and that's the only way you keep democracy. The only way.

Nuff said.


Posted by: Nobody's Bizness on November 20, 2007 at 11:12 PM | PERMALINK

I wonder if they'll rule that there's a constitutional right to take your gun on an airplane.

Posted by: denise on November 21, 2007 at 12:02 AM | PERMALINK

Disputo - do people really think they're going to defend themselves against the government with GUNS? They'd better at the very least have nerve gas. Does that fall under the Second Amendment?

Posted by: denise on November 21, 2007 at 12:05 AM | PERMALINK

You should be required to carry liability insurance, the govt. has the right to require registration, competency tests... and may hold you accountable for any harm caused by your weapons, i.e., if stolen and used in a murder, you are not guilty of murder, but are liable for wrongful death, and would have to carry appropriate liability insurance.

I've been advocating for this for years, but getting your average gunnut to accept responsibility for their actions is about as easy as getting your average wingnut to accept responsibility for their own actions.

Posted by: Disputo on November 21, 2007 at 12:10 AM | PERMALINK

You should be required to carry liability insurance, the govt. has the right to require registration, competency tests... and may hold you accountable for any harm caused by your weapons, i.e., if stolen and used in a murder, you are not guilty of murder, but are liable for wrongful death, and would have to carry appropriate liability insurance.


Ya know, I think that is a stellar notion, and, speaking as the resident "armed liberal wacko gun nut" in this forum, I am on board with it.

Posted by: Blue Girl, Red State (aka G.C.) on November 21, 2007 at 12:21 AM | PERMALINK

Denise said:
"Disputo - do people really think they're going to defend themselves against the government with GUNS? They'd better at the very least have nerve gas. Does that fall under the Second Amendment?"

Well, gee, the Viet Cong and the Iraqi Militias seem to be doing a pretty darned good job of it without those things. In fact, lots of guerilla armies have defeated vastly better armed military with small arms and booby traps.

A regular army depends on a strong economy to support it. A guerilla war disrupts commerce, and effectively halts the supplies of the regular army, while raiding on it for it's own replenishment. See "Guerilla Warfare" by Che Guevara for details on strategy.

Posted by: Nobodys Bizness on November 21, 2007 at 12:25 AM | PERMALINK

"Everybody knows a sawed off shotgun is the best home protector. But they're probably illegal. Make a terrible mess, too."

From a weapons instructor of many years ago..."At a distance of 15 feet or less, nothing on the North American continent can survive a head or thorax shot from a 12 gauge regardless of the shot size."

I'm not sure how technically accurate he was, but, it does make a lot of sense. Although, I would love to see someone do the basic physics calcs to prove/disprove it.

As for me, I don't need a handgun for home protection. A short barreled Browning autoloader will do just fine, thank you. It would still force me to think before I acted. But, would provide all the stopping power I could ask for. Handguns (in my opinion) are for professional law enforcement usage.

Posted by: MLuther on November 21, 2007 at 12:49 AM | PERMALINK

Nobodys Bizness: In fact, lots of guerilla armies have defeated vastly better armed military with small arms and booby traps.

Hanoi, 1975:
Col. Summers (US Army): "You know, you never defeated us on the battlefield."
Col. Tu (NVA): "That may be so, but it's also irrelevant."

Force of arms is not the determining factor in such conflicts. To suggest that US citizens with small arms are the ultimate barrier between tyranny and freedom is poppycock.

Posted by: has407 on November 21, 2007 at 1:24 AM | PERMALINK

: "To suggest that US citizens with small arms are the ultimate barrier between tyranny and freedom is poppycock."

Then might I suggest, instead, that U.S. citizens with small arms all too often serve as an effective barrier to the peaceful resolution of domestic disputes and arguments?

Posted by: Donald from Hawaii on November 21, 2007 at 3:50 AM | PERMALINK

"No one should be allowed to own a gun of any kind without passing a licensing class with both a written and "practical" examination."

What an interesting opinion. Many variations of it have been expressed in the body of comments. But try this variation on for size...

No one should be allowed to VOTE without passing a licensing class with both a written and practical examination.

Now do you begin to understand?

What I love about the timing of this SCOTUS case, is the way it will expose the true beliefs of so many anti-gun liberals and democrats during the peak of the election cycle. Lately the Democrats have tried to fly under the radar on this issue.

The question POTUS candidates will have to face is quite simple regardless of which way the court eventually rules, "Should the Washington D.C. handgun ban be struck down for violating the U.S. Constitution? Yes or no?" When democratic candidates are confronted with such a question the clever ones such as Hillary will try sophistry and evasion while the dumber and more honest candidates will just openly say no.

But more importantly the most visible of the body of supporters of Democratic candidates will speak their true minds, as so many have here in the previous comments. It is always valuable to be reminded of what the democratic party represents at it's core.

Posted by: Brad on November 21, 2007 at 5:03 AM | PERMALINK

On treating guns like cars:

How about we treat cars like guns, instead?

That would make it a federal felony crime for anyone with a felony criminal record to possess a car or fuel for a car. Felons, those with restraining orders against them, the mentally ill, drug users and non U.S. residents would be prohibited by law from buying a car or fuel for a car. To verify purchases are legal a federal car dealers license would be required for all those who sell cars for a living with stringent rules compelling elaborate record keeping of every purchase and shipment. A computerized network would be established for background checks on anyone attempting to buy from a licensed car dealer.

So yes, let us begin to treat cars just like guns are already treated! If anything cars facilitate criminal violence in America more than guns do.

But can you imagine the hysterical reaction if a move was made to criminalize car possession by felons? That's because in this nation even though everyone is familiar with the saying that "driving is a privilege", in reality driving is treated as a right. Wheras gun ownership is a right which is treated like a privilege!

Posted by: Brad on November 21, 2007 at 5:40 AM | PERMALINK

"It is quite depressing that an 18th century shoe should be required to fit a 21st century foot."

As opposed to, say, permitting a book written between 2 and 5 thousand years ago to provide an inflexible blueprint for how we're supposed to live today?

Excuse me while I get out of the way...the irony bus is about to mow me down.

Posted by: jprichva on November 21, 2007 at 7:48 AM | PERMALINK

A moderately interesting development. I'll merely point out a few things.

One, the 2d amendment does not give anyone the right to own arms or to use them. Perhaps a minor distinction, perhaps not.

Two, DC is in a rather unique position since it is not a state (recall the introductory portion of the 2d amendment) and since it is ultimately controlled by Congress. The Court may very well rule that DC did not have the power to enact the gun ban on the basis that Congress did not give them the power to do so. That would avoid the 2d amendment issue altogether.

Three, if the Court decides to rule on the 2d amendment issue, it still might not apply to regulation by the states. This is because application of (some of the) provisions of the Bill of Rights apply only indirectly to the states via incorporation through the 14th amendment. That is not an issue in DC's case, since the federal government has plenary powers over DC--as well as the territories.

Four, it will be interesting to see how the opinions turn out. If the opinions of the conservative members of the Court can be read broadly enough to suggest that states cannot regulate "RKBA" (right to keep and bear arms) they will be essentially reading the introductory clause of the 2d amendment out of the Constitution. That, of course relates to "well-regulated" state militias, which, of course, are mostly regulated by the states, according to Article I.

Posted by: raj on November 21, 2007 at 8:12 AM | PERMALINK

Honest -- Dice's delusions notwithstanding -- it helps to focus on the question the Court will take up: do the DC laws "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

The precedent is clear from Miller in 1939: for nearly 70 years, the plain Constitutional law has been that specific kinds of weapons can be restricted or banned by the Congress so long as they are not important to a state's militia, which of course is up to the state.

You can plug any particular type of weapon, e.g "handguns", or "lockless firearms", etc., into the Miller language. THAT is the Constitutional precedent. The rest of the policy arguments aren't relevant: the Supremes don't legislate.

So the only question is whether THIS Supreme Court will stick with precedent, or over-ride it. The Court COULD thread all sorts of needles -- so focus on the precedent rather than speculation.

There aren't that many examples of settled 70-year old precedents being overturned. How many Americans think an interstate ban on sawed off shotguns is like Jim Crow?

The most important and famous are like Plessy, which was precedent for more than 10 years LESS than the Miller case that is now at risk: and when the Warren Court overturned "separate but equal" in Brown, they used EMPIRICAL evidence to the point, that the Court had wrongly ruled in 1986 because 'separate but equal', we know now, is not possible. Separate MUST be UNequal.

There isn't any similarly decisive set of facts to erode the Constitutional basis for Miller.

So this isn't about POLICY. It's about the Constitution.

Frame the issue properly for once, willya? I'd hate to see us lose the case cuz we create a political climate where SCOTUS lunacy is possible cuz we're arguing on the NRA's terms.

And for those who advocate better training, etc., for firearms: quote Winfield Scott Hancock more: ""The object of the NRA is to increase the military strength of the country..."

If anybody thinks the standards of firearms safety reflected in America's crime statistics serve that purpose, I got a bridge....

Posted by: theAmericanist on November 21, 2007 at 8:53 AM | PERMALINK

Militia: By 1781 the militia was used as decoys, in the front ranks to mislead the British, who expected them to retreat after an exchange of fire, the second line of regulars then delivering a punishing fire against the advancing British. All American commanders knew their militia would run under fire.

Jefferson: Demonstrated that he could run even faster than the militia when the British raided Richmond in 1781. His statements about an armed populace being the last defense against tyranny, like most of his statements, may be taken as cant.

A well-regulated militia: can start taking its place in the defense of America; since the front line of that defense now seems to be Anbar province, the NRA membership can start forming up under the command of Wayne Lapierre for convoy escort duty. Bring sunscreen, boys.

Posted by: Steve Paradis on November 21, 2007 at 10:13 AM | PERMALINK

If the Supreme Court does incorporate the legislative history of the Bill of Rights, specifically the 2nd Amendment, I think the evolution of the phrasing has some bearing on the meaning. The Committee of Eleven which reported out to the House as a Committee of the Whole, which the House adopted, offered this language:

"A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."

The Senate passed the Amendment worded this way:
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.

The Senate version was adopted by the Congress after conference and sent to the states for ratification.

The House version seems to lean solidly to bearing arms as to the body of the people not to the person individuals since they included the religious exemption. If it were entirely an individual right, without regard to the body comprising the militia, why include the religious exemption?

The English version, adopted when the Dutchman came, might work for the NRA, though:

That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.

Posted by: TJM on November 21, 2007 at 11:04 AM | PERMALINK

So what's the spread on whether the Supremes will pick up a case where they'd be deciding whether or not an explicit right to privacy is in the Constitution?
Anybody care to suggest what kind of case it would have to be?

Posted by: kenga on November 21, 2007 at 1:15 PM | PERMALINK

We can argue till the cows come home for a month of Sundays about the public policy merits or lack thereof re: gun control (my take is that Kevin is right that the individual RKBA does exist but also that govt can regulate it...much as the 1A doesn't protect human sacrifice or threatening the president's life, the 2A doesn't protect drunks, violent felons, madmen, and terrorists from the govt's efforts to disarm them, futile though they may be).

But speculating about what the Founders intended re: the private ownership of arms is silly.

Instead of doing that, just ask them what they were up to:

“…Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”
- James Madison– The Federalist, No. 46

“Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them.”
- Thomas Paine — Thoughts On Defensive War, 1775

“…who are the militia, if they be not the people of this country…? I ask, who are the militia? They consist of now of the whole people, except a few public officers.”
- George Mason

“The great object is, that every man be armed.”
–Thomas Paine

“Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possesion and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?”
- Patrick Henry

“… of the liberty of conscience in matters of religious faith, of speech and of the press; of the trail by jury of the vicinage in civil and criminal cases; of the benefit of the writ of habeas corpus; of the right to keep and bear arms…. If these rights are well defined, and secured against encroachment, it is impossible that government should ever degenerate into tyranny.”
- James Monroe

“Arms in the hands of citizens (may) be used at individual discretion…in private self-defense…”
-John Adams –A Defense of the Constitution of the Government of the USA

“No free government was ever founded or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for the defense of the state…. Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.”
- State Gazette (Charleston), September 8, 1788

“Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
-Thomas Jefferson –Commonplace Book 1774

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed….” -Noah Webster –An Examination of the Leading Principles of the Federal Constitution 1787

Can you really envision Sam Adams, TJ, Pat Henry, Ben Franklin, James Madison, and the like sitting around the fire prattling about "collective rights"? Please.

If you don't like private gun ownership...great, lobby for a repeal of the 2A (and the 35-odd state constitutions that also forbid gun grabbery). But pretending the 2A doesn't say what it pretty obviously says (because we need a militia from time to time, the PEOPLE better be armed and know how to use guns) is sophistry. The Founders were uniquely fearful of standing armies, and it's hard to imagine in the 1780s they were trying to protect the right of the National Guard (a Federal force), which wouldn't even be formed for another 110+ years.

FWIW, if you want Democrats to do well in '08, you better hope the court doesn't overturn Heller/Parker before the election.

Posted by: Sebastian-PGP on November 21, 2007 at 4:08 PM | PERMALINK

There's a false dichotomy floating around here. Even if the Court determines that there is a constitutional right to bear arms, that doesn't mean governments will never be able to regulate them. It merely means that proposed government restrictions on bearing them will need to meet a higher standard -- probably "compelling" versus "reasonable." There is unequiivocally a right to free speech under the constitution, but that doesn't mean that all regulation of speech is prohibited. Even purely political protests can be subject to restrictions on time, place, and manner.

Unless the Court simply ducks the merits, presumably one of two things will happen here. The Court mayy decide that the right to bear arms was linked to militias or is otherwise a collective right, in which case there is no constitutional right to bear them individually. In that event, governments will be free to pass gun regulations upon a showing of mere reasonableness. Alternatively, the Court may decide that there is an individual and fundamental right to bear arms. But that result won't mean that the government will need to allow anyone to own anything, up to and including nuclear weapons; it merely will mean that the government will need to have a stronger-that-merely-reasonable justification for regulating them. For instance, even if there is a constitutional right to bear arms, the Court would almost certainly uphold bans on felons owning handguns, given the compelling governmental interest in doing so.

Posted by: Chris T. on November 21, 2007 at 4:25 PM | PERMALINK

Chris T,
Ayup, that's pretty much the case.

Even if the SCOTUS overturns Heller, it doesn't mean all the guns disappear tomorrow. Most states have constitutions that enshrine the RKBA as well (often in language not as subject to conjecture and debate as the 2A).

Much as the individual rights protected in the 1A, 4A, 5A, 8A, etc aren't absolute and are subject to reasonable regulation (don't think so? Go yell "fire" in a crowded theatre or say that you're going to kill the POTUS within earshot of a USSS agent and let us know how that goes), our 2A rights are no different.

FWIW, even if the SCOTUS rules you can only have a gun if you're in the militia (which pretty clearly isn't what the 2A says, it's right of the PEOPLE not right of the militia), not much will change. Read the Federal statute defining the militia--it expressly and deliberately makes it clear that the militia is NOT limited to the Natl Guard. Indeed, it states quite plainly that the militia is more or less all of us (it says able bodied males, but I don't think anyone really thinks in this day and age you'd get away with excluding the handicapped or the non-male).

Posted by: Sebastian-PGP on November 21, 2007 at 4:33 PM | PERMALINK

No one should be allowed to VOTE without passing a licensing class with both a written and practical examination. Now do you begin to understand?

Yes. We now understand that you are too stupid to understand the difference between voting and discharging a weapon. Thx for enlightening us!

Posted by: Disputo on November 21, 2007 at 4:36 PM | PERMALINK

"But speculating about what the Founders intended re: the private ownership of arms is silly.

Instead of doing that, just ask them what they were up to:"

Let's not forget that these same people gave us the electoral college. If one idea can outlive its time, so can another.

Posted by: Ex - Republican Yankee on November 21, 2007 at 4:44 PM | PERMALINK

Ex-Repub--

Indeed; like I said, if you think the idea in question isn't good, the COTUS fortunately has a means to correct it. It's been changed before, it'll be changed again I'm sure. I certainly wasn't trying to argue that the Founders were providing immutable, uncorrectable, unmoving sacrosanct holy law with those words.

I was just pointing out that the idea that they didn't favor an individual RKBA isn't supportable; you won't find a whole lot of "collective rights" (whatever they might be) in the Federalist papers.

So we largely agree--the COTUS can be changed. If you don't like the RKBA, the path to fixing it is pretty clear.

The problem is that A) any such effort gaining any sort of momentum will pretty much mean the Democrats are a permanent minority party and B) the majority of Americans really aren't going to get behind it.

The plain reality is that like em or not...guns aren't going anywhere. Rather than pull our hair out trying to legislate away or remove the RKBA by judicial fiat, we should focus on dealing with the socioeconomic ills that make their existence problematic.

Posted by: Sebastian-PGP on November 21, 2007 at 4:58 PM | PERMALINK

>"Yes. We now understand that you are too stupid to understand the difference between voting and discharging a weapon. Thx for enlightening us!"

I think most of us are bright enough to recognize that voting and firearms ownership are both examples of exercising a constitutional right.

The point, quite logically made, was that an unscrupulous government can deny constituional rights by instituting tests or conditons for their use.

This was most famously used as a means for disenfranchising blacks and other minorities. It has been recently reborn by Republicans under the guise of various 'voter ID' initiatives.

Note that concerns of citizens are based based on the premise that the government might act unlawfully or despotically.

Fortunately there is no danger of that happening here eh? It's not like the NSA would wiretap the entire nation or secret 'Star Chamber' courts would arise, or the president could claim the right to kill anyone, anywhere, and anytime he chooses or... (fill in the blanks).

Our constitutional rights should be protected and defended vigorously... or the constitution should be changed to reflect the new will of the people.

This SHOULD be the primary plank of the democratic party platform. Always come down on the side of protecting our freedoms. Always. Even when it hurts.

Unfortunately the current generation of Americans seems willing to give up their rights (privacy, public trial, equality under law) in exchange for vague promises of 'security'.

Good luck with all that.

Posted by: Buford on November 21, 2007 at 6:07 PM | PERMALINK

It would seem that we agree on every point. :-)

In particular, the anti-gun image (true or not) of the the Democratic party costs votes. I also think it is way too late to change that image (at least for the current generation).

Posted by: Ex - Republican Yankee on November 21, 2007 at 6:11 PM | PERMALINK

Buford: The point, quite logically made, was that an unscrupulous government can deny constituional rights by instituting tests or conditons for their use.

There are no unconditional rights; every one of them always has, and always will, come with "tests or conditions".

Posted by: has407 on November 21, 2007 at 6:47 PM | PERMALINK

Sebastian, you're cherry-picking quotes out of context. And even so, look at your first quotation:
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition,"

Right there is the point of the Second Amendment, to preserve the rights of the local, state governments against the federal government by reserving to them the power to regulate the militia. Read up on the history of the Constitutional Convention, the number one issue was how to limit the central government -- partly because memories of England made the drafters allergic to a strong central government, partly because the small states were terrified of being ruled by the big ones (read, by Virginia. Ever notice how almost all Presidents were Virginian for a generation after the founding? Virginia was the local superpower. Think Germany in the EU). The Second Amendment was an answer to proposals to keep a national standing army. He11 no, said the states-rights proponents, you can't even regulate our militia.

Bear in mind that none of the Bill of Rights originally applied to the states, until the 14th Amendment was passed 80 years later. And even then, the Supreme Court had to rule as to whether each Amendment applied to the states. The Second Amendment is not a good candidate by the Court's standard ("essential to a concept of ordered liberty," or some such, as I recall), and Justice Thomas is on record as despising the expansion of the "incorporation" of rights into the 14th Amendment.

Reinforcing these points, as more than one court has found, "bear arms" was a military term. A person does not "bear arms" in an 18th-century sense by carrying a pistol in his belt. You "bear arms" when you serve in a militia or army. The only reason we hear that phrase differently now is that the NRA has been drumming a dishonest interpretation into our ears for decades.

Now, "keep and bear arms" is less clear -- it may be a mere rhetorical flourish, like "cruel and unusual," or it may mean that the federal government cannot confiscate militia armories. That would have been a real concern to survivors of the Revolution. They would not have worried about the Government going door to door confiscating guns -- no central government of the time had anything like the manpower for something like that. Given that "bear arms" refers to the right to volunteer for an armed militia, it seems unlikely that "keep and bear arms" was meant to create an individual right outside the militia context, but it's possible. But at most, that would create a constitutional right to have legal title to arms without federal interference. Probably, only the sorts of arms an individual militia member could use -- so, no bazookas, no nukes, no tanks. The Federal Government could still require that the arms be stored outside the home, and could forbid carrying except to militia functions. State and local governments can regulate freely, including licensure or outright prohibition. State and local governments have done just that continually for the last 200 years.

And yes, I think John Adams (Sam did not participate in the debates) and Madison, both of whom often expressed a typical 18th-Century gentleman's fear of "the Mobb" were talking about collective rights, not individual rights. It was exactly the sort of thing they did talk about.

Posted by: trilobite on November 21, 2007 at 7:23 PM | PERMALINK

"....an unscrupulous government can deny constituional rights by instituting tests or conditons...

There are no unconditional rights; every one of them always has, and always will, come with "tests or conditions"."

Er... well, yes... and an unscrupulous government can institute tests or conditions designed to deny basic constitutional rights.

I guess that's the point I was trying to make... if unchecked, the government can 'test' a constitutional right out of existence.

Posted by: Buford on November 21, 2007 at 8:24 PM | PERMALINK

This 2nd Amendment debate is interesting, but what's lost in the debate is the fact that the DC gun ban has done nothing to keep guns out of the hands of criminals.

By now both sides on the issue (NRA, Brady) have sent out their umpteenth fund-raising letter invoking dueling 2nd Amendment interpretations... yet the DC gun ban has done precious little to stop the carnage on the street.

Even the law's promulgators said they didn't expect the DC gun ban to cut down on shootings unless neighboring states adopted similar blanket bans barring citizens from owning guns.

Gotta admit the chances of that happening today are less than Dennis Kucinich winning the White House in an electoral landslide.

May not be the best analogy but: drunk drivers kill people, yet no one proposes we reduce alcohol related traffic fatalities by passing laws that bar all people drunk or not from driving.

Good riddance to a bad law. Let's focus on methods to keep guns out of the hands of criminals and give law enforcement what they need to go after crooked dealers and other bad actors who are arming criminals.

(With condolences to the Americanist I note that most criminals get guns NOT by burglary, but through straw purchasers and other methods of evading laws that bar felons and minors from gun ownership.)

We've wasted 30 years and thousands of lives debating the wrong issue. Whatever the 2nd Amendment means vis individual / collective rights, everyone agrees criminals should not have access to guns.

Posted by: Back to Basics on November 21, 2007 at 8:39 PM | PERMALINK

Buford: I guess that's the point I was trying to make... if unchecked, the government can 'test' a constitutional right out of existence.

Understood. And it is up to the the courts to determine if the other branches have overstepped. Thus the question whether DC's ban oversteps, not whether there is some irrevocable right for anyone to own a gun--such a right is and has been revocable for any number of reasons.

Thus I find arguments that invoke a claimed absolute consitutional guarantee of that right--or any right--less than compelling. Moreover, of all the rights that could provide a check against despotic government, the second amendment is at the bottom of the list. NB:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
(emphasis added)

Posted by: has407 on November 21, 2007 at 9:17 PM | PERMALINK

At a speech Justice Scalia gave to a bunch of high school students in D.C. last week, he mentioned that selective incorporation (the application of the Bill of Rights to the states) was an idea of questionable merit. He also reinforced his preference for an originalist interpretation of the Constitution.

But he didn't explain (and no one asked) how an originalist would interpret the 2nd amendment. And I'm guessing that the fact that this case comes of of D.C. will be relevant to the final ruling......e.g., even if the the ban is approved, it may not apply to the states.

And I share the view that this is a bummer for Democrats.

Posted by: Stacy on November 22, 2007 at 12:19 AM | PERMALINK

Do NOT be surprised if the Court comes down on the side of DC. Remember that their Constitutional adherence is a figleaf; they are really obsessed with centralizing and concentrating executive power. Surest way to do this of course is to ban weapons.

Posted by: Orion on November 22, 2007 at 11:22 AM | PERMALINK

"Sebastian, you're cherry-picking quotes out of context."

If you say so; you fail to provide any of the context you claim I'm failing to recognize. For example, you ignore this part in the quote you're trying to contextualize: Besides the advantage of being armed, which the Americans possess over the people of almost every other nation

Your silence there is deafening. I'm not sure what context you can add that changes the point he's making there--being armed is a good thing in his mind.

"Right there is the point of the Second Amendment, to preserve the rights of the local, state governments against the federal government by reserving to them the power to regulate the militia."

Even if we assume arguendo you're right there (and that's quite a stretch), there's nothing in that concept that negates the second, operative clause of the 2A. Again, if they wanted it to say the right of the MILITIA or the right of the STATES to be armed, it would have said that. It doesn't. The SCOTUS has already ruled (Verdugo-Urquidez, among others) that "the people mentioned in the 2A is the same as "the people" mentioned elsewhere in the BOR. Why wouldn't it be? Again, there's nothing in the 2A that indicates militia membership is a prerequisite for gun ownership. Quite the contrary. And, even if we further posit you're right that such a pre-req exists, Federal law and precedent make it pretty clear who the "militia" really is--you and me and every other law abiding citizen.

There's no there, there.

"Reinforcing these points, as more than one court has found, "bear arms" was a military term. A person does not "bear arms" in an 18th-century sense by carrying a pistol in his belt. You "bear arms" when you serve in a militia or army. The only reason we hear that phrase differently now is that the NRA has been drumming a dishonest interpretation into our ears for decades."

Have you actually read Judge Silberman's decision? (A rhetorical question, it's quite clear you haven'.) The pc I'm on doesn't have adobe, but I'll provide quotes if you insist when I return home from Turkey Day. One of the more interesting aspects that I found reading it was that he provides many examples of how you're dead wrong here. Bear arms means exactly what the NRA thinks it means. That said, again, even if we posit that you're right here about what it means to "bear arms", it would have been expected that the militia members would supply their own arms in the 18th Century sense.

Another deafening silence from your POV: you're ignoring the keep part. I'd love to see you wiggle out of that one trying to explain how "keep" doesn't mean "keep."

"And yes, I think John Adams (Sam did not participate in the debates) and Madison, both of whom often expressed a typical 18th-Century gentleman's fear of "the Mobb" were talking about collective rights, not individual rights. It was exactly the sort of thing they did talk about."

Putting aside what obvious hogwashery that statement represents (authortarian tendencies of John Adams aside), what then to prevent a "collective reading" of the rest of the BOR? Is your right to free speech satisfied because George Bush can say whatever he wants? What exactly is a collective right anyway? How exactly can the collective enjoy it without individuals participating in it?

Yours is a patently perfect recipe for semifascist authortarianism that dictators everywhere drool over. "The people enjoy the right because the agents of the state do" is exactly what you're describing. And even if you enjoy the dubious victory of convincing us that John Adams would have been all for such a concept, the rest of that list I offered up would surely dump their ale steins on your pate as soon as you suggested such a thing. Pretty hard to explain how people in fear of over-zealous centralized govt would advocate a right of "the people" being satiated by reserving it only to agents of the state.

The intellectual contortions you have to go through to suggest that the 2A was designed to protect the right of govt to not have other branches of govt disarm themselves are amazing to me.

Again...if you don't like guns, lobby to repeal the 2A, and be intellectually honest at least. The reason so many of us on the left don't is we know goddamn well the populace is NOT going to give up its arms lightly. Most of us on the left live in fear of the authortarian, we-don't-answer-to-anyone approach the Bushies use daily...and yet our solution is to make sure only the govt is armed?

Insanity.

Posted by: Sebastian-PGP on November 22, 2007 at 1:34 PM | PERMALINK

"The point, quite logically made, was that an unscrupulous government can deny constituional rights by instituting tests or conditons for their use.
This was most famously used as a means for disenfranchising blacks and other minorities. It has been recently reborn by Republicans under the guise of various 'voter ID' initiatives." -- Buford.

Buford, you seem an honest enough fellow unlike most of the quasi-authoritarian anti-gun sophists posting in this thread. So I have a question for you regarding your statement about voter ID.

A person today under Federal Law doesn't have to pass any test, but does have to present valid ID to legally purchase a firearm from a federally licensed firearms dealer. Are you suggesting that presenting ID for a firearms purchase is an unfair scheme designed to deprive people of the right to keep and bear arms? Even as hard-core as I am about RKBA, I don't have any problem with the current Federal paperwork and ID requirements to purchase a firearm.

Your bringing up voter-ID is just another reminder of how hard core Democrats are about the exercise of many rights, except when it comes to other rights such as firearms. Requiring ID to vote is not a scheme for disenfranchisement, it is instead a vaild means for preventing voter fraud.

Posted by: Brad on November 22, 2007 at 3:11 PM | PERMALINK

"Our constitutional rights should be protected and defended vigorously... or the constitution should be changed to reflect the new will of the people.

This SHOULD be the primary plank of the democratic party platform. Always come down on the side of protecting our freedoms. Always. Even when it hurts." -- Buford.

Admirable.

If democrats supported gun-rights to the same degree they support abortion-rights, democrats would be calling for government subsidies for the purchase of machineguns by minors without parental consent!

Posted by: Brad on November 22, 2007 at 3:15 PM | PERMALINK

"I suggest it may be interesting if the Court does uphold Wash, DC's right to ban guns. Would the gun rights activists blame the "conservative" court as appointed by Republicans as the focus of their scorn?" -- Pencarrow.

What shallow understanding.

If the 'conservative' justices voted to overturn the lower court and uphold the D.C. handgun ban, then of course gun rights activists would blame them!

But that is not a credible scenario for upholding the D.C. handgun ban. Everyone knows about the 4 to 4 split within SCOTUS between the liberal vs conservative justices with justice Kennedy holding the deciding tie-breaking power. Everyone it seems except you.

Posted by: Brad on November 22, 2007 at 3:23 PM | PERMALINK

"I have a question for you regarding your statement about voter ID... Are you suggesting that presenting ID for a firearms purchase is an unfair scheme designed to deprive"

No, not at all. I think that proving you are a citizen is a reasonable requirement for purchasing a firearm... after all, it is a right extended only to US citizens.

My point is that historically, various 'tests' were used to disenfranchise voters, depriving them of a constitutional right.

These same sort of tests used to disenfranchise voters can be extended by the government to the second amendment. How about a 'poll tax' equivalent for purchasing a gun... or an IQ test... or maybe a citizenship or history test?

This is the heart of the beef with gun owners and the NRA.

The beef is that gun-owners percieve (not without reason) that the goal of many politicians is to completely remove gun ownership rights. In that context each additional regulation (on the face seemingly reasonable or not) is viewed as a part of a 'death by a thousand cuts' strategy.

In California you do have to pass a written test, get a DOJ background check and prove compentency before you can be issued a Concealed Carry Permit.

Reasonable? My personal opinion is yes.

Would it be reasonable to extend that sort of permitting to all firearms purchases?
In my opinion... as a practical matter, yes.

Ok, now the civil rights portion...

Who are at risk for being disenfranchised by such requirements? Mostly minorities and the poor.

Having a de-facto effect of reducing the ownership of guns by minorities and the poor is a good thing? Your call.

On extending the discusson to voter 'fraud' measures.

I do not really have any quarrel with a requirement for presenting some sort of ID for voting... provided it is implemented in a non-discriminatory manner, the need is communicated long in advance, and the ID is obtainable without burden to the poor, elderly, rural, etc.

What I disagree with is that recent Republican initiatives to eliminate 'voter fraud' seem to not be so much broadly directed at widespread and rampant national fraud but seem to be selectively targeted at districts that vote contrary to their interests. Most famous of these was the 'surprise' removal of voters from the rolls prior to the 2000 elections in Florida.... so let's say I'm just a wee bit cynical.

Who are at risk for being disenfranchised by such requirements? Well, mostly minorities and the poor. Having a de-facto effect of reducing voting by minorities and the poor is a good thing? Your call.

There is a key difference between presenting an ID to purchase a gun and voting... and that is time sensitivity.

If you don't happen to have an ID to buy a gun, you can come back tomorrow... or next week. If you show up at a polling place and are unexpectedly asked to present a drivers' license that you don't have, you can't just come back tommorrow... it's over.

Posted by: Buford on November 22, 2007 at 5:37 PM | PERMALINK

it is quite depressing that an 18th century shoe should be required to fit a 21st century foot.

=================

you go with the Constitution you have....:-)

I agree with Kevin's interpretation.
Those who talk about a broad interpretation of TRTKBA really haven't made clear why you can't have a right to keep & bear swords, bayonets, hand grenades, fully automatic weapons, plastic explosives, and mortars. While the NRA boys are concerned about hunting rifles, the sacred words of the 2nd Amendment says " arms",which should mean at least anything that a modern infantryman can carry into action. Frankly, the gun that I want for self defense is a sawed off shotgun, since I can't aim worth a damn. With a SOS, I just aim in the general direction and let fly at who I think is threatening me. Now there may be some collateral damage, but by golly, I would have exercised my inalienable right of self defense using the weapon of my choice.

Posted by: stonetools on November 23, 2007 at 12:14 AM | PERMALINK

"Those who talk about a broad interpretation of TRTKBA really haven't made clear why you can't have a right to keep & bear swords, bayonets, hand grenades, fully automatic weapons, plastic explosives, and mortars."

Baloney, I'm afraid.

No disrespect, but this sort of thing is a prime example of why this debate so quickly gets out hand--most people don't really understand even the most basic components, and slippery slope efforts like that represent a stark lack of knowledge about firearms regulation (hint: we already have almost every gun control law you could want within reason already...we don't enforce them very well, is all). You CAN own fully automatic weapons, explosives, tanks, etc. Such devices are tightly regulated under the National Firearms Act of 1934; for example, you can own a fully automatic M16--but the tax stamp you have to buy to own a Class III rifle under the NFA of 1934 typically runs $25,000 to $30,000. There are a fixed number in circulation (you can't own one made after 1986) and thus market forces make them cost prohibitive. If you own an old Sherman tank...you can get the rounds to fire out of the main gun, but they're about $6K a shot with the required tax stamp.

"While the NRA boys are concerned about hunting rifles"

Mostly incorrect; the NRA is concerned with the rights of both self defense shooters and hunters. Only about 20% of gun owners hunt--which explains why gun grabbers like Chuck Schumer and John Kerry don't play with gun owners when they try the ole "we don't want to take your hunting weapons" canard. What they fail to understand is that a great majority of gun owners aren't hunters. They're playing to the wrong audience, and it's a patently insulting effort at pandering. They'd be better off just shutting the fuck up on the subject and not wasting time mishandling shotguns at the trap range every four years for photo ops.

"which should mean at least anything that a modern infantryman can carry into action."

Agreed--and if you read Judge Silberman's decision, he points out that that's exactly what the founders had in mind--that Joe Schmoe show up when needed with the contempory infantry man's arms, knowing how to use them safely and effectively (something difficult to accomplish if no private citizens have arms at home to bring with them or practice with...when the fit hits the shan, it's too late to hope the govt can dole them out, vis a vis the shitty job they did re: Katrina and simple things like food and water).

The sawed off is overrated. Get yourself a Mossberg 590 tactical model with the 18" barrel. Holds seven 2-3/4" buckshot shells, which is all you'll ever need when the zombies come for you.

Posted by: Sebastian-PGP on November 23, 2007 at 10:42 AM | PERMALINK

Knock me over with a feather:

http://daysofourtrailers.blogspot.com/2007/11/obama-says-dc-gun-ban-constitutional.html

Heck, even Barack Obama says the gun ban is unconstitutional.

If Democrats could get rid of this mental-gymnastics-to-pretend-the-2A-doesn't-say-exactly-what-it-fucking-says approach and instead focus on a common sense approach that recognizes you do have a right to defend yourself and your home--but within a framework of reasonable regulation (most of which is already in place, just poorly enforced)...they could finally put this bugaboo of an issue behind us.

Posted by: Sebastian-PGP on November 23, 2007 at 11:04 AM | PERMALINK

That should read "constitutional". In other words...the top two candidates on our side both subscribe to the "it's ok to ban them completely" approach that is simply toxic for us on election day. Shucks.

Posted by: Sebastian-PGP on November 23, 2007 at 11:09 AM | PERMALINK

Agreed--and if you read Judge Silberman's decision, he points out that that's exactly what the founders had in mind--that Joe Schmoe show up when needed with the contempory infantry man's arms, knowing how to use them safely and effectively (something difficult to accomplish if no private citizens have arms at home to bring with them or practice with...when the fit hits the shan,
\------------------------

@Sebastian-PGP

are you REALLY OK with the idea of private citizens at home, merrily practicing away with the weaponry that a MODERN infantryman can carry into battle- automatic rifles, hand grenades, TOWs, mortars, plastic explosives, etc, etc?

just thinking about it makes it clearer than ever that some of what's in the 18th century should stay in the 18th century- and that ain't no baloney.
Lets face it, the scheme that the Founding Fathers envisaged for the defense of the country is as obsolete as the four-in hand carriage and no amount of nostalgia can obscure that.

Thanks awfully for the weapons advice. I'm sure that everyone around me will feel a lot safer that an untutored person like me is going around with the right kind of shotgun.

Posted by: stonetools on November 23, 2007 at 6:13 PM | PERMALINK

So... who ARE the Militia? Let's see what the United States Code has to say:

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

http://www.law.cornell.edu/uscode/10/311.html


Posted by: Conservative Against Bush on November 23, 2007 at 9:06 PM | PERMALINK

"are you REALLY OK with the idea of private citizens at home, merrily practicing away with the weaponry that a MODERN infantryman can carry into battle- automatic rifles, hand grenades, TOWs, mortars, plastic explosives, etc, etc?"

Are you REALLY OK with making it so obvious that you didn't read what I actually wrote and instead lobbed out that ludicrous strawman? Go back and read my comment again, where I point out that to have any of those things legally, you need to have a NFA tax stamp that costs tens of thousands of dollars. In your defense, I forgot to mention that to get that stamp, the Feds crawl up your ass with a flashlight and do a background check that'll make the back of your teeth hurt. So I really fail to see what the problem is. I hardly said that every Joe Schmoe gets a full auto rifle and a tank in unregulated fashion. Do yourself a favor and google "national firearms act of 1934".

That said, I can go to the soap making store and the local farm supply store and make something a LOT more dangerous than TOWs, automatic rifles, hand grenades, and mortars without any license whatsover. If it makes you feel better that I have to drop $25K on a rifle less powerful than any hunting rifle going...well, ok, but you really obviously don't know much about riflery.

In other words...the people willing to undergo extensive background checks and pay ridiculous sums on hobbies and collecting aren't the people you need be worried about. Can you point to any example of an NFA class weapons collector committing crimes? It's pretty freakin rare if it happens at all. The drug dealer on your corner with the cheap .25 semi auto junk gun or the .38 spcl is a lot more worrisome if you have clue number one about gun crime.

In any event, the point of the 2A today is the same as it was in the 18thC--the militia man needs to show up armed and trained in the safe, accurate use of his rifle, shotgun, and pistol. Why should he be deprived of the technological improvements? It's like saying your 1A rights are limited to the printing press because Jefferson didn't anticipate blogs and the Internet. Spare me the handwringing about how much deadlier an M16 is than a musket. Almost all gun crime is carried out with handguns that hold six rounds, and the rest is shotguns. Rifles all together make up about 1% of gun crime, according to the FBI.

"just thinking about it makes it clearer than ever that some of what's in the 18th century should stay in the 18th century-"

Nonsense--it makes perfect sense that the modern militia man be afforded the use of modern weapons. FWIW, modern infantry men use their rifles in semiauto mode 99% of the time--and the main battle rifle most of the guys in Iraq carry today (M16A3 or M4 variant) fires 3 shot bursts, not full auto. Full auto isn't combat effective in shoulder fired rifles and is largely a red herrring in these discussions as even our army guys don't use it. Battles are won with AIMED fire, not spray and pray.

"Lets face it, the scheme that the Founding Fathers envisaged for the defense of the country is as obsolete as the four-in hand carriage and no amount of nostalgia can obscure that"

Remember Katrina? They weren't just talking about defense from outside threats. The Founders knew that you couldn't always count on govt to maintain order and protect the citizenry. That's as true or possibly more true today. The govt has NO obligation to protect you (see Castle Rock v. Gonzales). It's not nostalgia--it's the plain reality that in the end, the only person you can count on is YOU, and that notion certainly isn't obsolete at all.

"Thanks awfully for the weapons advice. I'm sure that everyone around me will feel a lot safer that an untutored person like me is going around with the right kind of shotgun."

That's like saying "gee thanks for the advice on the Corvette vs. Viper...too bad I'm too much of an idiot to go to the track and get training on how to drive it." If you're untutored on firearms, then show some personal responsibility and educate yourself. Any range will show you the basics of firearm safety. I take newbies shooting all the time.

Heck, I recently took the former president of Ceasefire Maryland shooting...she'd LOVED it and is going again shortly. Educate yourself, don't be proud of being untutored.

Posted by: Sebastian-PGP on November 24, 2007 at 1:07 AM | PERMALINK

I am struck by how some here quickly call for the ban of a class of articles about which they obviously know nothing, and characterize gun owners as mouth-breathing morons. This is lazy thinking, informed only by your prejudices.

When your opponents act like this, you call them on it, as you should. But here, the shoe is on the other foot. You yourselves are backward, ignorant, and provincial, in your own effete way.

Posted by: Dave in VA on November 24, 2007 at 1:11 AM | PERMALINK

A simpler way to put it--when the fit hits the shan and it is militia time...the bad guys will have rifles, shotguns and pistols. The 2A simply says I should as well. Make sense, stonetools?

It's really about choice--if you want to choose to face them down with a sabre, spear, or sharp stick...knock yourself out. Not the choice I'd make, however...

One thing most of us lefties worry about is the authortarian tendencies of Dubya and the gradual glidepath toward tyranny we see in the neocon cabal...and our answer is give govt an ever greater monopoly on arms and power? Insanity indeed.

Posted by: Sebastian-PGP on November 24, 2007 at 1:24 AM | PERMALINK

Good points, Sebastian.

To all you anti-gun libs:

For all the talk about Bush as a dictator (and I certainly DO think he has done dictatorial things) I don't think anybody believes that either George W. Bush or his successor is going to suspend habeas corpus or start throwing the opposition in concentration camps, etc. But think of your worst nightmare of a jackbooted authoritarian demagogue. Isn't it possible that a person like that MIGHT reach the White House sometime in the next 30, 40 years, with 51% of the Congress and 51% of the Senate behind him (or her?

Soap box, ballot box, jury box... and if all else fails, cartridge box.

Posted by: Conservative Against Bush on November 24, 2007 at 1:49 AM | PERMALINK

Soap box, ballot box, jury box... and if all else fails, cartridge box.

Wow! That exactsentiment is in the left sidebar of my blog!

Posted by: Blue Girl, Red State (aka G.C.) on November 24, 2007 at 2:33 AM | PERMALINK

Thanks Against Bush; typically these arguments devolve into that rather silly effort at a reductio ad absurdum that suggests a pro-2A position necessarily means you have to let every Tom, Dick and Harry walk down the street with a howitzer under his arm with fissile material in his truck and a Ma Duece on his SUV. Of course this bears no resemblance to reality; even the NRA supports the NFA of 1934--the progun side pretty much agrees that there's nothing wrong with the govt tightly regulating explosives and automatic rifles.

The court will probably rule that you have an individual right to be armed and to self defense, and the only question is where you draw the line on "reasonable regulations". Not sure how you can make the argument that an outright ban on the most common and useful self defense tools as "reasonable". It's like arguing that a ban on email, the phone, and TV isn't unreasonable because you have access to a Ben Franklin era printing press.

Posted by: Sebastian-PGP on November 24, 2007 at 8:32 AM | PERMALINK




 

 

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