Another mass murder by an asshole with a rifle, on a day ending with the letter “y”. But this article! Jesus!
The suspect in a Monday morning massacre at a Louisville bank has been identified as a 23-year-old former varsity hoops star and finance grad-turned-banker who livestreamed the horrific attack.
Louisville Police Chief Jacquelyn Gwinn-Villaroel identified the suspect as Connor Sturgeon, who worked at Old National Bank’s downtown Louisville branch.
Gwinn-Villaroel said Sturgeon was livestreaming as he used a rifle to open fire at about 8:38 a.m. in the Old National Bank Building, which houses the bank and a variety of other businesses, killing four people and injuring nine more, including three police officers. Sturgeon was killed after exchanging gunfire with officers, she said, but it’s unclear if he was killed by police or by self-inflicted gunshots.
The article briefly mentions the victims by name, but after that, it’s got a more important job to do. It spends 22 fucking paragraphs going on and on about what a nice normal guy the killer was. The governor of Kentucky has to tell us what an “incredible friend” he was, they interview old high school friends and buddies from his college fraternity, they reach the depths of banality by getting a quote from the husband of a neighbor.
Sturgeon “seemed like a real normal dude, every day he’d wave to me,” Allgeier’s husband, Michael, added.
What the fuck? The mass murderer was known to sometimes wave to people? This is news? I learned nothing from it other than that the killer was otherwise a mundane person who lived an ordinary, if privileged, life before going on a shooting rampage. The article says nothing about the victims, short of naming them, and should have been slashed to bits by an editor before publishing.
And it took three ‘reporters’ to cobble together this unquestioning story about a bad man.
I hope they feel a little bit of shame today.
I know almost nothing about this massacre, but can say with great confidence that the murderer isn’t black. If he were, we’d know all the bad things he’d even done in his life by now.
Governor Beshear’s friend was a 64 year bank VP who was close enough that the 40-something gave him credit for making him a better father. Another major editing error. Wanted to set the record straight.
Yes, the killer was not a friend of the governor, did it really say that?
Yes, the killer was not a friend of the governor, did it really say that?
It doesn’t now. Might’ve in a previous version (Newsdiffs doesn’t have an archive of this article). It now correctly states that one of the victims, Tommy Elliott, was a friend of the governor.
Speaking of stellar journalism, WaPo (Jeff Bezos’s paper) spent 8 months investigating a story about the SIG Sauer P320, a gun used by “thousands of police officers and civilians”. It has a flaw causing “unintentional discharges” (euphemism for “firing” or “shooting”) without pulling the trigger. This has occurred when people were “making routine movements, such as climbing out of vehicles or walking down stairs” or in the case of the lead in to the story, while getting dressed at home. This flaw has injured more than 80 people. So self-firing guns are unsafe. Who knew!?
Of course, humans pulling the triggers of a lot of guns kill a lot of people but that’s another problem. Maybe WaPo can spend 8 months investigating that.
Sounds like one of those articles that, “Well, we have to report something”, which turns into an article of “We don’t know why he did it” and ends up suggesting that, since he’s so mundane and normal, it’s obviously normal to shoot up public and private venues.
robro, SIG must be losing political influence. Remington’s popular 700 rifle, used by hunters and military for decades, had a defective safety that allowed it to discharge when set to safe – a defect known to exist for well over a decade. No mainstream articles about the issue, only firearms publications discussed the issue until Remington finally recalled the defective trigger mechanism.
Can’t humanise the victims. That might make people want to do something about mundane murderers having unfettered access to guns.
Well, the only thing that can stop a bad guy with a gun is a good guy with a gun. But, how do you stop a good guy with a gun? (hint: the answer includes repealing the second amendment and banning private ownership of guns.)
Articles like this normalize mass murder. The goal being to keep us from doing anything about it and remain the country with the greatest number of guns per capita and an exceptionally high murder rate using them.
Wait, is this what the folks mean by American Exceptionalism?
It’s almost as if they are reviewing the latest first-person shooter video game, Take your gun to work day. What is the point of repeatedly emphasizing that Conner McMurderous was live-streaming? WTF!!
The horrendous ongoing body count is real, but let’s talk about the fine upstanding white boy who violently riddled his co-workers with bullets before he also died via a gunshot.
I’m of the ethical school that says the killer shouldn’t even get their name mentioned to deprive them of the fame they seek replacing that with words like the murderer, the killer, the shooter, the evil piece of shit, etc..
Yeah, this seems the opposite of that.
Disgraceful.
I know this isn’t Faux news but FWIW Fox news is “news” in the same way a urinal cake is a “cake”..
(hint: the answer includes repealing the second amendment and banning private ownership of guns.)
We don’t need to repeal the Second Amendment to accomplish that goal. All we need to do is remember the first half of the sentence.
Raging Bee — Not to mention the numerous Supreme Court rulings that have confirmed our societies right to restrict guns.
The Washington Post had a story last week about the Sutherland Springs church shooting survivors (AKA the lucky ones). Several has lead poisoning from bullet frags that couldn’t be removed. one was adapting to life in a wheelchair and there was survivor’s guilt and kids who were frightened by loud noises – PTSD. Not exciting, not news. Ordinary people trying to adapt to their changed circumstances are not sexy. A rando with a gun who takes vengance on strangers for some slight nobody else was even aware of is the modern macho.
That same news site had an article about anti-vaxer Bobby Kennedy, Junior… who wants to run for president. They claimed he got into the anti-vaccine cult due to the “mercury in the MMR vaccine.” It is a live vaccine, it never contained thimersal. And even got what Wakefield claimed completely wrong (he was a gastroenterologist, so it was gut stuff that he faked):
“The triggering element, literally, was mercury. In 1998, the British doctor, Andrew Wakefield published an article in The Lancet claiming that thimerosal, a mercury preservative contained in the Measles-Mumps-Rubella (MMR) vaccine, caused autism.”
I knew they did not have a clue.
chris @ #15 — It’s true that some anti-vaxxers are still spinning on Wakefield’s BS. Every aspect of that was a crock…including the fuzzy notion of “autism” which became a popular diagnosis of children in the 90s which I know from personal experience.
However, I would point out that there are a bunch of old hippies on the Pacific coast who are anti-vax because it isn’t natural, and they don’t trust the medical establishment. Strikes me as just as stupid as being anti-vax because of Wakefield’s scam.
robro @16, the “it isn’t natural” crowd I have fun with. “So, would you like cassava hydrogen cyanide glycoside or ricin with your tea? Or would you prefer a calcium channel blocker from a sea snail or cytotoxin that digests you from a snake or spider?”. Hey, all known kill humans, all are quite natural. Although, the sea snail calcium channel blocker was being investigated for pain management usage.
If they really want natural, they could try a good case of m-pox, it’ll immunize them against other pox virus strains – at a cost. And a much better premium if they could get smallpox, with its 35% fatality rate. Natural is good, dead is decidedly natural, guess they just want to beat the rush.
wzrd1 @ #17 — Yep, many natural things can kill you. And from what I’ve seen, many of them are doing things every day that aren’t “natural”…like driving their big SUV to their native plant garden. I guess we shouldn’t expect consistency in humans.
The part that says “a well armed and well trained national population [e.g. the plaint text meaning of the archaic English phrase “well regulated militia”] is necessary to prevent tyranny and invasion”? That sounds like the exact opposite of what you are trying to spin. I still don’t get why you are still spreading misinformation about this. So you just not care about lying if it’s politically expedient? Again, basically every author who commented on of meaning of the text from when it was written to at least circa 1850 takes my position, and none take yours, including James Madison, George Mason, and many others. This should be about as open and shut as you can get.
Our side should strive for honesty and integrity. We should be selling ourselves as an alternative to the lies and historical revisionism and unethical judicial power plays of Republicans.
@ ^ GerrardOfTitanServer : Huh?
The words “well regulated” and “militia” seem pretty simple and clear to me. (Emphasis added.)
Obviously (to me anyhow) meaning no,not any and every schmuck can or has the right to carry leathal weaponry around and use it at whim and, no, if you’re going to have guns then you need to join a well regulated group that’s limited in who can use firearms and how and so not just, well, open flippin’ slather for every person and their dog.
Well-Regulated
It’s over 200 years ago. English changed a lot in that time. It’s no surprise that it has. Here’s just one example of many of historical literature that uses the phrase contrary to what you expect.
William Makepeace Thackeray – Vanity Fair, A Novel Without a Hero 1848
Excerpts:
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You can search and find many similar examples from other sources for hundreds of years before and a hundred years after. “Regulated” back then didn’t mean “regulated by government laws“. It had a much more broad and general meaning, something like today’s words “functioning” and “operating”. “Well-regulated” simply meant that it was behaving correctly, or behaving ideally, or behaving properly.
Militia
Regarding the definition of “militia”. The word “militia” has always referred to the whole national population with weapons in its capacity to be a military fighting force. Even today, American federal law defines the militia as basically consisting of all able-bodied adult male citizens between the ages of 17 and 45.
Grammar
You might think that the second amendment grammar implies that the first clause is a limiter on the second clause. This is mostly mistaken. It looks unusual in the federal constitution, but this grammatical construction was quite common in state constitutions of that time. Here’s one example: The 1784 New Hampshire Constitution:
I should hope that we can agree that the writers of this text did not mean for a later judge to be able to overturn this right if the judge decided that it wasn’t essential to liberty to have the trial in the same county where the crime was committed. This right is still a constitutional right. That kind of right means that no mere act of the legislature can overturn it, and no mere act of the judiciary can overturn it. Only by amendment can it be overturned. In other words, it’s not an trigger clause for a later judiciary to declare that the right should not longer be protected.
First, notice how it’s both underinclusive and overinclusive. It’s underinclusive because there are many ways to damage liberty, and the second clause protects against only one kind of damage. It’s overinclusive because surely we can all agree that it’s not necessary in every case whatsoever for the trial to happen in the same county as the offense.
So, what do we make of this construction? Is the first clause meaningless legally? No. It is both underinclusive and overinclusive. The first clause gives a reason, a justification, for the right of the second clause. The first clause colors our understanding and application of that right. It gives a context for the right. It’s not judicially meaningless, but neither is it controlling. Again, the first clause does not allow judges to say “ok, so this case is one of the exceptions, and that’s why we don’t have to uphold the right of the second clause”.
So, what does this mean regarding the second amendment? We should expect the same thing. The first clause is both underinclusive and overinclusive. It’s underinclusive because there are other ways to prevent tyranny and invasion, and other things that are useful for an armed population to resist tyranny and invasion. It’s overinclusive because there are other ways to resist tyranny and invasion besides having an armed national population. However, the first clause does not limit or control the second clause. It merely colors it and explains it, which has some legal effect, but far from being controlling.
I have taken my arguments from the following source. Also, there are many other examples of such grammatical construction in other US State constitutions of the time. Please see this for more information:
THE COMMONPLACE SECOND AMENDMENT
by EUGENE VOLOKH*
https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-73-3-Volokh.pdfIs that really what was intended and understood?
Yes.
Federalist #29:
Federalist #46:
Noah Webster’s pamphlets arguing in favor of the constitution were the second most influential and impactful on public opinion — second only to the Federalist Papers. He is even more explicit, saying:
In the series of pamphlets titled “An Examination Into the Leading Principles of the Federal Constitution” by Noah Webster. Available at:
https://books.google.com/books?id=YJo0AQAAMAAJAn excerpt, translated by me into modern spelling:Thomas Jefferson:
James Madison (author of the constitution) and George Mason (author of the American bill of rights of Virginia which formed the core of the American federal bill of rights):
The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot’s Debates, Volume 3]. Saturday, 14 June, 1788.
https://memory.loc.gov/ammem/amlaw/lwed.html… A direct link to the particular page is sadly unavailable. The search function does work. Excerpt:Notice also how they interchangeably use the terms “the militia” and “the people”.
Not only did they want everyone to have the right to be armed, they even required it by law. The Federalist #29 calls for a law that makes it a legal requirement for all able-bodied adult white male citizens btween 17 and 45 to own and possess a gun. The second federal militia act of 1792 made this a legal requirement. There were stiff monetary fines on individuals who did not comply. (See: Commonwealth v Stephen Annis. Supreme Judicial Court of the Commonwealth Of Massachusetts. Year 1812.) A little bit later, a report prepared for congress says that most of the guns of the militia members were individually provided and individually owned by the individual members. (See: American State Papers. Military Affairs. Volume 1. 1789 – 1819. Year 1812. Page 198. Internal Title: “No. 62” “The Militia”.)
This attitude didn’t come out of nowhere. These people wanted to continue to exercise their rights under English common law, which also included gun rights from the English bill of rights of 1689.
The same attitude regarding gun rights continued for at least a century:
The Dred Scott opinion also said (in dicta) that it was the right of every (white) citizen “to keep and carry arms wherever they went”.
After the civil war, the American congress wanted to ensure that newly freed black people could have weapons to defend themselves from the former slave-owners. They created the Freedman Bureau to accomplish this goal (as well as some others). The existing notes are very explicit that protecting their gun rights was one of the Bureau’s primary goals.
PS:
Bolding added by me:
Original 1789 charter of the University of North Carolina
https://docsouth.unc.edu/unc/unc01-08/unc01-08.html“Well-regulated” does not mean “regulated by the government“. It means “behaving properly” aka “functioning properly” aka “behaving well”.
Well regulated in the context of the time meant well controlled, disciplined and working in the common interests of all.
Note how that is applied to someone’s mind, legislature or militia. The founders feared a large standing army, having lived through parts of various oppressive regimes and a rather lengthy list of oppressive regimes, where the military was wielded against the populace. So, they created barriers against that in our governmental structure and societal structure via the Constitution.
While a few argued that an armed populace could remove an oppressive government, the majority realized how absurd and destructive a notion that was. Meanwhile, with militias consisting entirely of the able bodied military age populace, it’d be unlikely such a force would ever permit themselves to be turned against their friends, neighbors and peers.
Interestingly, the militia is never defined in the Constitution, but as the ink was drying on the Constitution, was defined by Act of Congress quite specifically. Without the Militia Act and second amendment, conscription or even maintaining a National Guard would be legally impossible. Instead, we’d need to repeal prohibitions against quartering troops and force our active military to maintain order in time of emergency. US Marines as policemen sounds like a wonderful idea.
Meanwhile, under the militia acts, militia members were required to purchase and maintain a pack and bedding in common military usage style and their own firearm, again, of common military usage type. Artillery was literally owned at the time by some wealthy individuals, donated to the ports and militia as needed, additional purchased by the local communities. We don’t ask our National Guard to buy tanks, fighter aircraft, attack helicopters, armored personnel carriers, howitzers, mortars, grenade launchers, grenade machine guns, machine guns, etc.
Which is just as well, even if I could afford that crap, I’d not buy it, that would cost me insanely in maintaining even a machine gun.
And the National Guard is only a little over a century old, previously the militia was entirely independently formed and operated, save when called up in time of emergency. My old unit was formed and commanded by no less than Colonel Benjamin Franklin as the Norris City Rifles. Part of which still exists today as the Norris City Rifles, Revolutionary War reenactors, the remainder existing under the 56th Brigade Combat Team, 28th Infantry Division, PA National Guard.
And the only weapon I took home was on my shoulders. The rest stayed happily in a humidity controlled arms room – a room sized safe at my unit.
Although, technically, under the latest and previous militia acts, I’m no longer legally militia, as I’m over the age of 61. But there, were I still to own firearms, we’d run afoul of taking of property under color of law and no orders of a court of law, making all property under threat and the Constitution, being inseverable and indivisible, moot.
But, we do and always have restricted both service and access to firearms. Operable here, by maturity as measured by entry age and by requiring able of mind and body. And again, relatively recently, in response to some crimes of sensational and horrific nature, by destructive capabilities and very narrow specifications. Such as barrel length, suppressors, fully automatic, destructive (such as artillery and bombs), disguised firearms being under Title II NFA and essentially only allowed to be possessed by those given a special trust. Without that trust, a tax stamp shall not be issued and hence, possession is prohibited.
Some minor additions / corrections.
Remember that one of the powers of the federal congress is to issue letters of marque and reprisal, which makes no sense unless there were privately owned ships of war, with privately commanded crews of trained soldiers, with cannon and all.
IMO, most of the founders knew that the militia at large were untrained rabble and were not a particularly effective fighting force, and a lot of the rhetoric that I quoted was to cater to public opinion. This doesn’t detract from my position regarding the legal meaning of the second amendment – public understanding and public opinion should be controlling, and not private opinions to the contrary of certain elites. The hypocrisy is amusing and relevant to today’s issues.
The National Guard is only a hundred years old in name, but not in function. As the Federalist #29 says, it would be foolish to try to train every militia member to full competency of an infantry soldier because that kind of training is not something you can do over a weekend. That’s a huge hit economically, and a huge inconvenience to the individual persons (see other countries that have periods of mandatory military service for all men). Federalist #29 says that you should only try to train a small corps of the militia to full military readiness, and for the rest of the militia, the best that can be done is to assemble them once or twice a year to make sure that they obtained (e.g. bought) their gun, ammo, and laundry list of military equipment.
I disagree with the inclusion of suppressors in the list above of particularly dangerous weapons / weapon properties. In many European countries, suppressors are nowhere near as regulated as they are in the US. Basically, I think too many American reps in congress get their understanding of guns from Hollywood movies and video games, and they really think that suppressors can make a gun “pew pew” super quiet, but that’s not the way it works in real life. Guns are stupidly loud. Like 140 dB loud. A suppressor reduces that by 20 dB, maybe 30 dB at best. IIRC, even the moving pieces of the gun itself, ignoring the primer and gunpowder explosion entirely, produce a sound around 75 dB. Guns are just stupidly loud, and suppressed guns are still very loud. You’re not going to have an assassination where no one hears the gunshot because of a suppressor. Suppressors in private hands are a very useful tool to prevent permanent hearing damage to the shooter and to people around the shooter. (Suppressors can make gunshots sound like something else, which might “hide” the gunshot, but they’re not going to make the gun “pew pew” Hollywood silent. Barring extremely rare guns that are specially made to be actually close to Hollywood “pew pew” silent, but that’s inherent to the entire gun design. You can’t achieve that by just throwing on a suppressor to a regular gun.)
I also think barrel length is exaggerated in importance in the context of the easy availability of handguns. The vast majority of shooting homicides are handguns, and that is because they are easy to conceal and carry. Rifles of any kind, short barrel or not, make up a small minority of gun homicides. Even half of all mass shooters use handguns only. Virginia Tech was handguns only.
Virginia Tech was also done almost entirely with 10 round magazines with a few 15 round magazines. This leads me to believe that magazine capacity limits are also mostly ineffective.
If you really want to do something about gun deaths, the plan must involve at minimum some kind of regulation regarding the common semiauto handgun. Anything that focuses on rifles or large magazines is just colossally missing the point.
Re the “tax stamp” above. Basically, the federal ATF investigates you to see if you’re a crazy loon or a felon or something, and then grants you a license called a “tax tamp” for reasons that I still don’t know. The license also costs IIRC thousands of dollars. But with that license you can get suppressors and fully automatic rifles. The system appears to work quite well because crimes committed with fully automatic guns in the United States is practically zero. I wish we could apply something like this system for all semiauto guns – a national gun owner’s registry and national gun owner’s license. If it’s constitutional to do this for driving, then surely it’s constitutional for gun ownership, the second amendment notwithstanding (legal precedent is that reasonable licensing of a right for some other compelling public good is not an infringement of that right), and this is IMHO especially true in light of historical practice where the federal government maintained rolls of who was a member of the militia vs not.
My favorite legal trick is still to rely on the power of the federal congress to train and discipline the militia. Use that power to make a law that says everyone must attend militia training (whose successful completion grants a gun owner’s license), and you’re not allowed to leave training area until you pass, and failure to appear or leaving early results in criminal sanctions, and the law specifies that the criminal sanction shall be loss of gun rights. It’s entirely grounded in precedent for the legislature to be able to specify loss of certain rights as a criminal sanction. This works entirely by any remotely reasonable constitutional jurisprudence.
@21. GerrardOfTitanServer : Huh. Okay, I’ll allow the ridiuculously archaic use of language with the 17th century meanings of the words provided they are applied to the same archaic vintage of weaponry only.
For guns that are modern and so much more deadly than those old muskets they used back then, lets use modern english understanding of the laws ie. well regulated means there are bloody well proper laws restricting who can use them and NO you don’t get a right to do so and “militia” means you need to be part of an actual official registered and regulated – that is controlled by laws – militia group.
Time the USA’s Constitutitioon was amended agrain perhaps with some anti-school and other mass shooting measure sincluding outright reppeal of the 2nd amendment maybe? Or are you happy being the only country in the world to have weekly if not daily massacres of innocent people by usually male, reichwing mass murders?
Does the first amendment cover phones and internet? Your judicial interpretation is ludicrous and flagrantly dishonest.
And again, current American federal law says that basically every adult male able-bodied citizen between the ages of 17 and 45 are members of the militia. I am a member of the militia, in spite of never received any sort of military training whatsoever. I have never fired a gun. I have never owned a gun. I’m still a member of the militia. You are misusing the word “militia” — misusing it according to not just the historical meaning, but also the contemporary legal meaning.
PS: You are misrepresenting my position by saying “17th century language”. I showed that this usage of “well regulated” persisted well into the 19th century. My first example usage was from 1848.
PPS:
I take it you didn’t actually read everything I’ve written here. Frustrating. Let me say it again, I want more gun control. At a minimum, I want there to be a national gun owner’s license and registry, with at least a weekend length training course required to obtain the gun owner’s license, involving a stringent background check, along with regular updates to this background check every couple of years or so. I want “stand your ground” laws eliminated and “castle laws” eliminated. I think I want want open carry eliminated.
I also want there to be strict laws regarding storage of firearms in homes, cars, and similar, where children may be present, requiring the guns to be unloaded and locked in a proper safe or locked room at all times except when directly held by an adult with a gun owner’s license. It should be criminal negligence on the part of the parents if a kid gets access to a loaded gun. (I know a lot of gun owners are going to be pissed about that because they can’t have their gun ready and loaded at-hand for their personal fantasy scenarios of self defense against a surprise break-in or something, and I don’t care about their concerns in this matter when there are children in the house.) I want this to be vigorously enforced by prosecuting parents who lose their children to gun violence and whose children commit gun violence against others to help create a culture of more responsible gun ownership.
At this point, I’m ambivalent about whether to repeal the second amendment or not. I still think it has value. However, I wouldn’t fight an effort to repeal it and ban all semiauto guns (and revolvers).
I think it’s overly simplistic to say that the entire problem is due to easy availability of guns. I think that comparative studies of other countries show that there are other important factors with large effects on gun violence. Regardless of the confounding factors, I also believe that if we ban all semiauto guns (and revolvers), I think there would be a substitution effect, e.g. using knives instead of guns. However, I also think that, regardless of confounding factors, the total amount of murder and violence would go significantly down without easy availability of guns, i.e. it’s just harder to kill someone with a knife than it is with a gun.
I also don’t want to go as far as the United Kingdom, which I think has gone full ridiculous with such onerous restrictions on purchasing and mailing table knives and kitchen knives. I think it’s absurd to so heavily regulate objects which can be found in most kitchens in most houses. We can’t do away with table knives and kitchen knives. They’re going to be everywhere. There’s nothing we can do to change that, and we shouldn’t even try.
@24, letters of marque and reprisal died long ago via a ratified treaty, which the Constitution plainly states “is the law of the land”.
As for the militia, aka National Guard, their performance in war is legendary for its poor quality and high casualty rate until the wars in Afghanistan and Iraq. It was expense that was spared, time well spent retains skills already trained in advanced individual training.
I gave a number of non-ATF Title II weapons tax stamp usages, including alcohol. It’s literally a stamp that shows that tax was paid, qualifications were met for making (such as with alcohol), etc.
Show me a Constitutional right to operate a motor vehicle on a public motorway. The sun will go out before you find it, as one has a right to travel, but not by a specific mode of transportation. As was relatively recently upheld over an air traveler complaining about airport security and rights. Basically, the judge said to take the bus, train, bike it or walk.
I’ll counter your training requirement for every able bodied man in the land to have militia training, as that is who the militia is per codified law going back to 1797. The US Army provides for the Civilian Marksmanship Program, indeed, military surplus rifles are still sold via the program, along with some surplus ammunition. There’s your barest training, open to one and all.
@25, OK, the archaic language is adhered to, all amendments are null and void, women cannot own property, cannot vote and slavery is legal again. Doesn’t sound like a win from my seat.
@26, phones convey what means of communication, telepathy? Speech. The internet, only the written word, both also commonly referred to as expression and upheld by the courts.
Speech and expression remain regulated though, examples being inciting a riot, conspiracy to name two crimes that are expression related.
Selective service, aka, “the draft” is literally a mustering of the unorganized militia. The organized militia being the National Guard.
@17th century language is befuddling to me as well, as the Constitution was ratified in 1797, which is decidedly 18th century and quite near 19th century. Did someone hide a time machine on us?
@28, a few things. First, there is what is possible vs what just won’t happen in politics and you seem to want to ignore that. I’d prefer all semiautomatic firearms that were derived from selective fire military service rifles be placed under a new title under the NFA. I’d also like to have a few million dollars in my retirement account. Or even have a retirement account.
But, requiring a license for an enumerated right then turns it into a privilege. Rights require codified law and a court of law to curtail, privileges can be administratively revoked. When considering restricting one right in any way, try a thought experiment and substitute another enumerated right in its place. Want to have to have a license to be exempt from warrantless search and seizure? A voting license? A license to run for public office? A license to speak in public? Newspapers need a license?
As for it being harder to kill with a knife compared to a firearm, depends upon the distance. Just a year or so before the pandemic there was an incident where 20+ people were killed by one man with a knife.
But, it’s kind of hard to stab or slice someone that’s 20+ meters away.
Unless one has really, really, really long arms.
SCOTUS, Bell v Burson. Doesn’t literally call it a right, but it literally says that regardless of whether you call it a “right” or “privilege”, due process applies, and said that arbitrary restrictions and arbitrary processes regarding the issuing and revoking of suchs rights / privileges are unconstitutional with the specific example of driver’s licenses. IIRC, it struct down some State law saying it offered insufficient opportunity to challenge the revoking of a driver’s license.
Operating a motor vehicle on public roads is a constitutionally protected right. It’s also a licensed right. There’s no contradiction here.
Note that nearly all guns were designed first for military usage.
It’s called “having a police badge”. It’s a license to do use force where regular citizens cannot, and it’s a license to do searches and seizures legally where many of us cannot.
Many states require voter ID.
It is often required to get a public permit to hold a protest march in a public street, public park, etc. Right to speech, assemble, and protest all in one.
Nearly all cities require various sorts of business licenses, IRS registration, building licenses, and so on. I don’t know offhand if there’s anything specific to being a newspaper business.
@ ^ GerrardOfTitanServer : So, wait, a court (SCOTUS) can imply a Right by interpretation and bring things up to date in one area but archaic outdated use of language somehow still applies without updating or reinterpreting and remains in place in another area?
I stand by the idea that if you’re going to apply old fashioned language use then it should only apply to old fashioned guns.
Or if you are going to use new modern guns developed up to the present day vs old style American War of Independence era muskets and the like then you need to update the understanding of the language to match the modern meaning of English words i.e. a “militia” means an actual militia not the “People” and “well regulated” means plenty of proper legal regulations, restrictions and controls.
But I gather we agree that there needs to be gun control and maybe a repeal of the 2nd Amendment and our past argument here was a misinterpretation and maybe, mea culpa a misreading on my part?
You didn’t answer my question: Does the first amendment’s protections for speech apply to phones and the internet? Your insistence of using modern definitions of words to interpret and apply a document written over 200 years ago is asinine and flagrantly dishonest.
I still have a very serious issue with you because of your short-sighted, naive, destructive, “the ends justify the means” kind of thinking. You would tear down the constitution and the legal framework — the rule of law itself — that protects the rest of our civil liberties and our civilization in order to go after the one right that you don’t like. I have a really, really big problem with that kind of thinking, and I will attack it voraciously whenever I see it. (I also just don’t like the simple dishonesty inherent in the position, and I’ll try to make our side be the honest side to be able to contrast ourselves against the dishonest conservatives.)
Do you know what the difference is between a modern western democracy and a shithole authoritarian regime like Russia? Rule of law. One of the required components of rule of law is that there be an impartial judiciary that rules according to the law, and not according to their own personal preferences as you would have them do in this case.
From “A Man For All Seasons”:
H.L. Mencken:
@ ^ GerrardOfTitanServer : You didn’t answer my question: Does the first amendment’s protections for speech apply to phones and the internet?”
I’m not a constititional lawyer for Australia let alone the USA so I’m not qualified to answer and out of my jurisdiction there and don’t really know but in my inexpert opinion, yes, yes it does?
Because we live in the modern 21st Century (wow, still catch myself thinking 20th C here) world wher ewe have things like phones and the internet which would have seemed like magic to those in past centuries. But the principle remains the same?
How so? How is my insistence here dishonest or asinine? Should we keep the meaning of the words or the letters of the them? Some old laws & principles hold up, others not so much. Some laws have changed dramatically eg the legality of slavery, interracial marriage, rape in marriage, equal marriage etc..
Are the laws we have now serving us who are alive now or the people back in the past whose worldview was outdated and flawed and whose understanding of our world (scientific and ethical) as we live it is nil?
Frankly I’d like to change our whole legal system frankly toone that prioritises ethcis and truth above precedent and having the better – usually more expensive lawyer. To have justices start and be obliged to state why their rulings are the most ethical and most based on truth ones.
The Devil of course is mythological and our legal sytem flawed and biased and fallible as the number of people on Death Row in the United States who are innocent and the number of rapists freed here (recently Pell, Porter, Luhrrmann) and more indicates. The “man for all seasons” was a man living centuries ago and wasn’t he a Catholic extremist religious fanatic anyhow? Antigone might’ve had more of a case..
Unsurprisingly I think that is a grotesque mischaracterisation of my views and position here.
What does “Rule of Law” even mean here? Whose rules and whose Law? Is that rule ethical and based on reality? Is it wrong to even ask and demand that maybe they are or should aim to be?
Democracy – people voting with ideally one vote one value?
Tyrants and dictators and, yes, Presidents & kings being accountable and subject to the will of the People and able to be removed peacefully and face consequences for their misbehavuiour when they misbehave and hurt others and their nations in doing so?
You’re a naive fool. You need to go retake high school civics. You would destroy rule of law entirely. You would do away entirely with the distinction of the legislature and the judiciary. You would render the legislature practically powerless.
Why do you think that we separate the roles of judiciary and legislature? Can you even tell me the difference between legislature and judiciary in the standard conception of western democracies?
In standard western democracies, we already have a body whose job is it to rule according to what is the most ethical and based on truth. Spoiler: It’s the legislature. That’s their job. That’s their role. That is what distinguishes them from the judiciary. The judiciary’s role is to rule according to the law that the legislature creates, impartially. Impartially relative to what? Not to the law. Impartially according to other ethical systems, moral systems, etc. It is the role of the legislature to decide what is best, what is moral, according to the truth, and it is the role of the judiciary to apply those general rules in specific cases.
Again, you would do away entirely with the distinction of legislature and judiciary. Do you have any idea how absolutely fucking stupid that is?
In your plan, the legislature would be rendered practically powerless, because the judiciary would review every single law, and overrule any law that wasn’t already the best according to morality and truth. The legislature wouldn’t need to do anything. They would have no power. So, in your system, do you want judges elected by the public or appointed by … someone? Maybe that’s the only power of the legislature in your system, to be part of the process of selecting judges, and maybe removing judges.
Seriously, go retake high school civics right now.
Basically, your plan amounts to a technocracy, a desire to be ruled by benevolent dictators. I’m sorry, this is not Ian Banks’ The Culture; we haven’t yet developed benevolent AI “minds” that run our government for us. We only have humans. So, how are you going to choose these benevolent kings (judges)? How about Plato’s plan? Have a system already in place to select the smartest child, and raise them from a young age under the supervision of government to mold them into a great, wise, moral, and benevolent leader. Oh, that doesn’t work for you? Do you want them to be nominated? Maybe by some technocratic committee. Like the country’s best scientists and philosophers get together and choose. That sounds a lot like China’s communist party. I hope we can agree that this is a stupid idea. What else do you got? Do you want judges to be directly elected? Well then congrats, you just reinvented representative democracy except without a judiciary.
What you consider to be novel pontification has been thought about for centuries, even millennia, and rather than do the hard work of learning about it (such as via a high school civics and political history class), you decide to armchair reason about better forms of government without one wit of research, you lazy bum. Worse, you’re a shitty armchair philosopher who hasn’t even considered the basic preliminary objections to your proposed system, specifically those that I gave in this post.
You’re like a creationist who sits in their armchair and thinks up ways to overthrow an entire scientific discipline that has been built up over centuries by thousands, millions of experts. It’s amazingly arrogant, especially so when you haven’t even done the basic research covering basic information which is taught to every high school student.
You disgust me.
It’s often been said that modern western representative democracy is a shitty system. For example, it means that we have to protect gun rights in America because we have approx 1/3 of the country that blocks a constitutional amendment to the contrary. That’s shitty. However, it’s also often said that western representative democracy is the least shitty form of government from all known forms of government. Your proposed “fixes” involve dismantling the core cultural value of modern western civilization, that is the respect for the rule of law, the notion that there should be general laws, laws not specific to individuals, which apply equally to all individuals, plus impartial judges who decide individual controversies according to those general rules. That is the rule of law in a nutshell. What stops a Christian judge from deciding that abortion should be illegal, or blasphemy or apostasy should be illegal? Judicial ethics. Their own belief about the proper role of judges in the system, plus the pressure from civil society regarding the proper role of judges.
This is rule of law. That’s all rule of law is. There’s nothing more to rule of law. Rule of law is only possible in a society where the supermajority of people strongly value rule of law. Otherwise, you get the current situation in America where Christofascists are installing judges who don’t believe in the rule of law. They believe that they should be deciding cases according to their own personal morality instead of according to the law. Rule of law is remarkably fragile. It takes at least decades, and sometimes hundreds of years to develop, and it can be easily damaged and destroyed, as we see in America. We all must stand up to defend it from ignorant fools like you.
Or maybe you don’t want a constitution? For example, like Israel. The Israeli legislative body has absolute power in the country. There is no constitution to limit their powers. Whatever a majority of the legislature wants, they get. Wanna know the result? A wannabe tyrant, Netanyahu, is right now moments away from having his allies in the legislative body pass a law that makes him immune to prosecution for corruption, and to pass another law that says that the legislative body can overturn any decision of the highest court, effectively making the legislative body also the supreme judicial body. Have you been reading about this in the news? Do you think this is a good idea?
Fucking idiot.
There is democracy in Russia. Putin is elected. Don’t you know anything? You fail again. The big problem is that it’s hard to elect someone other than Putin. This is due to a few reasons.
For example, Putin and the Duma (the legislative body) has made it a crime to criticize government policy. Oh look, wouldn’t it have been nice if they had civil rights protected by constitutional law that was beyond the reach of mere statutory acts of their legislature?
And wouldn’t it have been nice if they have impartial judges that believed in judicial restraint, https://ballotpedia.org/Judicial_restraint , aka who believed that it was not their role to decide what’s best for the country nor what is moral, and instead decided according to the supremacy of the constitutional protection for free speech?
Plus Putin’s political opponents have a habit of falling out of windows, or sometimes they’re poisoned multiple times. That Putin gets away with it is another sign of the loss of rule of law. There’s no independent body with sufficient prosecution power to investigate and prosecute Putin, and the courts are not impartial either.
But Putin is still elected. (Just like Netanyahu was elected too.) You failed to identify the most important difference between an authoritarian regime and a modern western democracy.
If you think the biggest difference is that people get to vote for their leaders, and not the rule of law, you need to go back to high school civics. Or next you’ll be telling me that appointed judges are a bad thing and the right answer is that we need to have direct elections for our judges. I mean, judges are part of our leadership, right? It seems like you want them to make leadership decisions about what is best for the country and the people according to morality and the truth? And you just identified that the most important thing separating us from Russia is that we can elect our leaders and also remove our leaders by direct vote.
Spoiler: Direct election of judges is stupid. Direct recall elections of judges by majority vote is also fucking stupid. One of the core parts of development of western style democracies has been to move away from direct democracies in certain ways in order to enhance the rule of law. Not having direct elections for judges is a way to strengthen rule of law, by (supposedly) making judges less political and their selection process less political (your mileage may vary depending on exactly how effective this has been), to support and strengthen the separate of judicial power and legislature power, aka to strengthen the ethical belief of judicial restraint among judges, which is the idea that judge should hold back their own personal views on morality and instead decide, like cliche uncaring emotional robots, according to the law, no matter whether it results in good or bad outcomes in the individual cases before them.
PS: Obviously the concept of judicial restraint should not be absolutely absolute. We should not forbid judges from deciding what is best and moral based on the truth in every case. We can, and should in certain cases, pass laws that instruct judges to decide controversies before them according to what is best and moral based on the truth in certain predefined, narrowly constructed, situations. For example, allowing judges discretion in sentencing as per sentencing guidelines in statutory law is one narrow way of instructing judges to decide individual controversies according to what they think is best and moral based on the truth. I’m not suggesting that we do away with that kind of exercise of judicial power.
However, I do not support the notion that a judge should have the power to decide that some 18 year old rapist is “really sorry” and “really remorseful”, and prison time would ruin his life, and thus the best option would be to ignore statutory law sentencing rules to allow the rapist to avoid prison time. The legislature can and should delegate a little of their power in certain situations to the judiciary, but it should be entirely the legislature’s power to decide where and when and to what amount. It must not be the judge’s individual decision to decide what is best and moral based on the truth if it is contrary to the law from the legislature.
PPS: Did you know that in the US constitution, before the bill of rights, they had two civil rights already protected in the constitution. These two rights were so important that they were included before the bill of rights. They are so important that they’re considered to be more than mere civil rights. Wanna guess what they are? Congress shall not pass bills of attainder, and congress shall not pass ex-post facto laws. What are those?
A bill of attainder is a law that treats certain individuals or group specially by name because doing so would be a gross violation of the “rule of law” principle that laws should be general laws that apply to everyone. It is the role of the legislature to rule by general degree (by general law), and it is the role of judges to rule by specific decrees (judicial decisions) in specific case by case. Allowing bills of attainder would be a gross violation of the separation of judicial power and legislative power. It would be fatal to rule of law.
An ex-post facto law is a law that changes the legality of an action that happened in the past (typically making something illegal which used to be legal). Again, another clear violation of a rule-of-law core principle which is that individuals must be able to reasonably predict whether or not a future personal action would be in violation of the law or not.
Rule of law is so critical to the western way of life that the very first large-country western-style democracy, the United States, included these basic provisions to protect rule of law before even protecting free speech, free press, free assembly, trial by jury, or any other civil right. All of those other civil rights can only be relied upon in a culture and system where rule of law is respected.
PPS: Hitler was elected too.
Putin elected? LOL. yeah..
..Nah.
Next thing you’ll be telling me East Germany, Saddam’s Iraq and North Korea were really “democratic” too because they claimed they were..
Putin was elected by something at least close to a majority of the voters. Why do you suggest otherwise? Are you really that ignorant of Russia? Worse, believing flagrantly false things contrary to reality for no good reason. Educate yourself. Here’s a good place to start.
https://en.wikipedia.org/wiki/Opinion_polling_for_the_2018_Russian_presidential_election
I wouldn’t say that about East Germany or North Korea had free elections for their leaders because, AFAIK, they had single-party communist rule. But up until recently, Russia did look like a somewhat / relatively free democratic country. Just like Germany in 1932.
The thing that separates these countries from proper modern western-style governments is not direct elections. The biggest distinguishing factor is the cultural values of rule of law in a proper constitutional framework which I have described at length in these posts.
Am I saying that Putin was elected according to the highest standards of fairness? No. He cheated in multiple ways. He killed and jailed opposition candidates. He manipulated the media. He even rigged the vote counts, perhaps by up to 20%. However, it still seems like he and his party won at least a plurality of the vote in 2018, and perhaps even a clear majority. Thus, clearly what separates Russia from the US is not election of leaders. Rather, what separates us is all of the other things that allows Putin to kill and jail opposition candidates, and to control the media, and I would strongly say that the difference is the lack of support for rule of law. A seeming majority of Russians like Putin enough that they don’t care if he bends the rules because they think Putin is doing what is best for the country, what is best according to morality and based on the truth, just like what you want.
The real problem is the political apathy and/or political ignorance of the majority of the Russian population – specifically he belief that it’s ok to bend the rules to get the desired results.
That’s exactly the problem that you have StevoR. You don’t care about the rules. You only care about the results. “Ends justify the means”. You said it yourself – you would have the judges decide what’s best. You don’t care about the process. You don’t care about means they use as long as they get to the “correct” conclusions. That bone-headed foolish stupidity is what I am attacking you for, and it’s why I still voraciously defend gun rights so long as the second amendment is still unrepealed.
Someone is not allowed to have an independent opinion about the truth of evolution without at least a high school level understanding of it. Similarly, you are not allowed to have an independent opinion about the best form of government without at least having a high school level understanding of contemporary civics theory. Given that your knowledge is woefully below this standard, I will tell you to shut up and read a book. Start with any respectable high school civics school book.
The part that says “a well armed and well trained national population [e.g. the plaint text meaning of the archaic English phrase “well regulated militia”] is necessary to prevent tyranny and invasion”?
No, Gerrard, those two things are NOT the same. Your persistent ignorance of this obvious fact shows how deeply dishonest, and downright unhinged, you really are.
Er… wot? You’ve just described multiple ways in which election of leaders does separate Russia from the US – despite the best efforts of the Republican Party.
Also, Gerrard old chum, I think most historians agree that the Constitution was written by educated, articulate, well-read upperclass men, not by bumpkins and savages who only knew their own “archaic” reginal dialect. Even the dumbest of them would have had a big enough vocabulary not to use a phrase that meant something very clearly different from what they really wanted to say.
Does the first amendment’s protections for speech apply to phones and the internet?
Yes, they do, to the same extent as they apply to the print media of the Founders’ time.
Your insistence of using modern definitions of words to interpret and apply a document written over 200 years ago is asinine and flagrantly dishonest.
Why is that “dishonest?” Circumstances change, so our interpretation of the Constitution can, and must, evolve along with them, otherwise they end up simply meaning nothing. I don’t support “originalism” because it’s obviously a sham (and also because there’s no evidence that the Founders supported it). Do you?
People are not allowed to have an independent opinion about history without at least a high school understanding of it, and this is such a misleading cherry-pick from a complex process involving political deals with fools who thought they could control him, and outright violence, torture and murder of opponents, as to make it clear that you lack that. Hitler acquired the office of Chancellor through a backstairs deal with other right-wing politicians (von Papen and Hugenberg), following an election in which the Nazi share of both votes and seats fell (the Nazis got 33.1% of the vote, a slightly larger percentage of the seats but well short of a majority – 196 out of 584). He then used the emergency powers of the complaisant President, von Hindenburg, to exclude the Communists and some Social Democrats from the Reichstag, ban the Communists’ newspapers, suspend those of the Social Democrats, and following the Reichstag fire, to suspend the constitutional guarantees of personal freedom – but note that these powers were themselves provided for in the Weimar Constitution and could not have been exercised without von Hindenburg’s cooperation. Then he called another election, which still failed to give the Nazis an overall let alone a 2/3 majority – he required the connivance of not only the right-wing parties but also the Catholic Centre to pass the Enabling Act which gave him absolute power.
@ GerrardOfTitanServer : American centric much?
@StevoR: More fantasy-American-centric, I’d say.
@36. Or maybe you don’t want a constitution?
MaybeI want a better constituition* that works better for most people.Plus a better Bill of Rights.
Definitely, I think we can do better than we did back in 1600.. 1700 . 1800.. whatever centuries a-fucken-go!
Because, time, knowledge, progress, howz that work again?
Because since then we have learned beter and discovered more and thought kore and aren’t as bad as we once were – hopefully. Most of us?
Because you would set in rigid never anygetting any better stone stuff that doesn’t work and is increasingly outdated and inapplicable and no longer appropriate given what we now know & can do that couldn’t back then and that they didn’t think of back then because we didn’t have the technology back then. Zbecuase y’know technological improvements, social growth and change and reality.
But yeah, sure. Freeze everything as it was back in the Ming dynasty China, sorry, Tokugawa Shogunate Japan, sorry Montezuma’s (not yet) Mexico, sorry Washington’s USA because .. yeah, that makes fn sense. Not.
Heaven forfend (Hey, look yam using ye olde language..thorne ‘ere) we taje look at things like ethcis and reality and base our world on those ideals as best we can determine rthem right now* and constantly review and improve our systems of governance and justice..
Also y’never looked at the list of happiest nations / best quality of life nations or watched Mike Moore’s Where should Ameiria invade next and thought aboyut theimplications and worked aout that the USA;s governance and justice systems are messed up as .. well, I ain;t gonna say but imagine.. pretty, extremely FN bad. FFS GOTS.
.* In my country (Oz) & yours because people deserve better everywhere.
SCOTUS, Bell v Burson. Doesn’t literally call it a right, but it literally says that regardless of whether you call it a “right” or “privilege”, due process applies, and said that arbitrary restrictions and arbitrary processes regarding the issuing and revoking of suchs rights / privileges are unconstitutional with the specific example of driver’s licenses. IIRC, it struct down some State law saying it offered insufficient opportunity to challenge the revoking of a driver’s license.
Operating a motor vehicle on public roads is a constitutionally protected right.
No, it isn’t, and you just admitted it isn’t, right before insisting it is. The case you cited upheld equal protection of the law and due process, not a constitutional right to own and drive a car.
Are you even sane enough to understand that you just contradicted yourself?
@GerrardOfTitanServer You want to talk about someone not being concerned with the rule of law? Here, then. I’ll take that bait and provide an actual opposing claim. Fuck the rule of law. It is nothing more than the dictates of the ruling power. Law is easily bent or evaded, because it is too rigid to actually respond to real circumstances. The spirit of the law may matter, and the principles behind it can mean a lot, but a society founded on absolute rules only gives away power to those prepared to play self-serving wordgames at the expense of the underlying principles. “The process” is just a way of hiding from accountability for your actions. Republicans do not get away with their actions because we’ve bulldozed the process — quite the opposite. They get away with their actions because we’re too busy fawning over the process to actually oppose them. There is no process that will always output just results regardless of input. You want to talk about being naive? It is beyond naive to think there is some perfect process that we will never have to step outside of. Any process can fail. Ours has been failing for some time. To respond to this with what amounts to “you need to just trust the process” is not merely naive; it is another manifestation of religious fundamentalism, functionally indistinguishable from the exhortations of Ham and Hovind, just centering around the worship of the state rather than a god.
While we’re at it — yes, the ends do justify the means. The ends are what matters. That means all the ends, mind, not just the ones you want or intend or care about. If your means is mass murder, then having a bunch of dead people is also an end and must be factored into your calculations of what the most positive end is. What’s more, it is not enough that an action produce more good than bad. It must also do so to a greater degree than any other possible action in that circumstance in order to be the morally correct action. This is something people often get wrong about consequentialist ethics. But the ends are what matters. Or would you have us believe that even when the rules demonstrably result in a colossal corpse pile, we should just double down and follow them harder?
Fuck the rule of law. It is nothing more than the dictates of the ruling power. Law is easily bent or evaded, because it is too rigid to actually respond to real circumstances. The spirit of the law may matter, and the principles behind it can mean a lot, but a society founded on absolute rules only gives away power to those prepared to play self-serving wordgames at the expense of the underlying principles.
This is Russian legal philosophy, and dates back at least to Nicholas I. Laws aren’t perfect, of course, but rejecting them to this degree didn’t do the Russians (or their neighbors) any good, and won’t do anyone in the West any good either.
Jesus Christ Raging Bee. Get it through your thick head that language changes, and the words they used have changed meaning in the last 200 years. And what is your nit about right to drive? Are you saying something can’t be a right if it’s licensed? What a myopic view of the world.
KG, I was fully aware. After writing it, I expected this nitpick. Oh well. It’s still accurate to say that Hitler rose to power via elections and the electoral process. The flaws that allowed Hitler coming to power was not vote rigging, or inability for competitors to stand for election, etc. Hitler and his allies represented in some significant way the desires of the largest plurality of the people, and perhaps even a clear majority, just like Putin. Just like Netanyahu.
StevoR. The point is that the constitution should change according to the amendment process, and not according to judges unilaterally declaring that some parts of it are bad according to their own personal values. If you let judges change it according to their own personal values, then when the Christofascist judges decide that school prayer is ok, what legal resort do you have then? None. Go re-read the quote I provided above from “A Man For All Seasons”.
Jemolk. Regarding the phrase “the ends justify the means”. I agree with your analysis. I think you missed my point. That phrase is typically used to attack someone for being short-sighted, for not seeing that the means that they use will end up creating legal and ethical precedent, allowing those same means to be used by other people, resulting in worse ends in totality in the farther future. I also completely and vehemently disagree with you w.r.t. the value of rule of law.
Maybe I’m not being clear enough. I am not saying that “well-regulated” was an idiomatic phrase whose meaning was used only by a particular region or group. I am saying that “well-regulated” simply meant something completely different to basically all English speakers circa 1800 than it does today. Language changes over time, yes? You accept this? You accept that 200 years ago, “faggot” referred to a bundle of stick, and not to a gay person, right? So, if you found the word “faggot” in the US constitution written 200 years ago, should judges interpret that word today as meaning “a bundle of sticks”, or “a gay person”?
In other words, they used a perfectly clear phrase that was common usage at that time, whose meaning was not in doubt at that time. The phrase “well-regulated” simply meant “in proper working order”, or “behaving well”, or “going according to plan”.
Another for example, wanna guess what “police” and “a police board” meant 200 years ago? Not the same thing as today, I can tell you that.
And this is not American-centric. And I totally agree that the US constitution, revolutionary for its time for moral advancement and advancement in good governance, is utter crap today compared to other better systems. For example, I wish we had party-list voting and shortest-splitline districting and instant-runoff where party-list voting is not applicable.
Finally, I get the feeling that most of my opponents in here have only considered the question “if myself and people who thought like me were in charge, what sort of laws should we create?”, without ever considering the question “what sort of legal system should I have in place to protect myself when the majority of people have different views than me?”. This is why we have a constitution in the first place, to protect vulnerable minority groups from the harms of unrestricted majority rule. We see this playing out in real time before our eyes right now in Israel, a country without a constitution, whose elected legislative body is perhaps moments away from passing a law allowing the elected leader to be immune to criminal prosecution for criminal corruption. There is a really good reason why we restraint legislative power with a constitution, and also why we restraint judicial power with a constitution.
Surely the point of good design of government is to protect everyone when people with less than ideal beliefs are elected into government. I think most people here are not even considering that possibility. For example, the free religion clauses are there to protect minorities religious groups from a tyranical religious majority that would impose their religious rules on them. What good is that sort of constitutional protection if Christian judges can decide according to their own morality that it is better for everyone to display the Ten Commandments in every school? The point of constitutional protections is to restrain the legislature and the judges. Otherwise why bother to even have a constitution?
And what is your nit about right to drive? Are you saying something can’t be a right if it’s licensed? What a myopic view of the world.
Once again, you prove your utter dishonesty by blatantly misrepresenting what I said. I did not say “something can’t be a right if it’s licensed,” I said that driving a car was not a constitutional right. See the difference? If not, then shut up and stop making a fool of yourself for no reason; you have no credibility.
I am saying that “well-regulated” simply meant something completely different to basically all English speakers circa 1800 than it does today.
In the Second Amendment, “a well-regulated militia” means whatever regulation is necessary to ensure that the militia works for the security of a free state. That may include, and is not limited to, laws restricting the kind of firepower available to civilians as well as to cops and other security forces. This is from a plain reading of the ENTIRE Second Amendment, and the meaning of those words in the Constitution haven’t changed.
The point is that the constitution should change according to the amendment process, and not according to judges unilaterally declaring that some parts of it are bad according to their own personal values.
That’s not what judges do, and you know it. Seriously, can you show even ONE example of a judge “declaring that some parts of [the Constitution] are bad?” (The only example I can think of is gun-nuts who insist that the first half of the Second Amendment has no meaning and can be ignored.) Your rhetoric is laughably dishonest even by originalist/anti-federalist standards.
Judges don’t “change” the Constitution, they INTERPRET it as it applies to certain situations or laws — which is exactly what the Founders intended when they explicitly declared the Constitution “the Supreme Law of the Land.”
That’s what StevoR explicitly suggested doing. They explicitly suggested reworking the government to allow judges to do that. Jemolk also appears to suggest the same thing by saying “fuck the rule of law” (paraphrase?).
It does not mean that. That meaning of “well-regulated” simply did not yet exist circa 1800. That meaning of government control, of government regulations, for the word “regulated” would develop later, about a hundred years later. Please see my example uses of the phrase from circa 1850 and earlier which clearly demonstrate this. I can post more example usages of “regulate” and “well-regulated” from circa 1850 and before if you need it.
Raging Bee,
And you also need to (re)read that bit I wrote above about comparative analysis of similar grammatical structures in State constitutions at the time, and how your interpretation of the meaning of the grammar is simply unsupportable when applied to the same grammatical structure in other State constitutions from the same era. See above for “Volokh”. In other words, even if you were right about the meaning of the words “well regulated”, you would still be wrong about the legal meaning of the whole amendment.
That meaning of “well-regulated” simply did not yet exist circa 1800.
What a load of obvious bullshit. “That meaning” is based on nothing more or less than a plain reading of the Second Amendment, plus a common-sense understanding of what a militia is and how it does what it’s created to do. It states what a militia is needed for, and says the militia must be “well-regulated;” so “that meaning” of the phrase is pretty much baked into the sentence: it means, BY DEFINITION, regulated such that it does what it’s supposed to do. What other good way CAN a militia be “regulated?”
And you also need to (re)read that bit I wrote above about comparative analysis of similar grammatical structures in State constitutions at the time, and how your interpretation of the meaning of the grammar…
Oh fuck off with this “grammar expert” shit. I’m a technical writer, which includes being a grammar expert, and as such I can say with very high confidence that all this blithering about “grammatical structures” and whatnot is nothing but reactionary “strict constructionists” cobbling up shabby asinine rationalizations for ignoring and discounting the letter of the law. I can also say that when interpreting any sort of document on any subject, the actual subject-matter experts (in ConLaw, that means jurists) take precedence over the grammar experts. Are your sources the same “grammar experts” who explained at great length that Donald Trump cannot be called a racist because he didn’t use certain words often enough?
The Second Amendment says what it says, and it’s really not hard for an honest jurist to interpret it using a decent amount of common sense — just like we’ve been doing right up until Alito’s latest utterly dishonest, poorly written and self-contradictory ruling on the subject. (Where’s those damn grammar experts when you really need them?) And remember, the US Constitution is the Supreme Law of the Land, so the wording of state constitutions doesn’t exactly override any common-sense understanding of what it means.
Also, as a grammar expert, I’d like to remind y’all that of all the rights specified in the Constitution, the right to keep and bear arms is the only right explicitly set forth as a means to an end. All of the other rights (the only other exception being the right to patent or copyright one’s work) are clearly set forth as ends in themselves, with no “X being necessary to Y…” explanation preceding them. The Second Amendment puts the “well-regulated militia” and “the security of a free state” FIRST, and the right of the people to keep and bear arms SECOND, and SUBORDINATE to the former.
I think GOTS is just a bot, due to the inane logic it consistently deploys. So very Humpty Dumpty.
For example, the free religion clauses are there to protect minorities religious groups from a tyranical religious majority that would impose their religious rules on them.
So wrong, not to mention that tyrannical has two N’s. Freedom of religion is there due to Puritans and other Pilgrims having sailed across the ocean with the specific purpose of escaping religious persecution from the King of England.
Thomas Jefferson got the idea from the writings of Cyrus the Great, King of Persia. The principal was applied to all Persian vassal states, who had multiple indigenous religions.
The USA has been founded as a secular democratic republic, as it has been from its colonial inception.
[principal → principle]
I have posted most of this before in this thread. At least try to read it and engage directly with it please.
What the fuck? You have me confused for someone else.
Among the federal constitution, yes, it’s unique, but it’s not unique considering state Constitutions of the same era. Again, an examination of these additional sources show that your understanding of the meaning of the grammatical structure is wrong.
https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-73-3-Volokh.pdf
Here’s one example: The 1784 New Hampshire Constitution:
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed […]
Is the second clause subordinate to the first clause? In other words, should a judge read this and decide that the constitutionally protected right isn’t protected anymore if the judge personally believes that it’s not necessary anymore? No. That’s an absurd reading of this legal text. This legal text does not contain a sunset provision.
Further, in this text, we see that the justification clause is both underinclusive and overinclusive. Underinclusive because there are other ways to damage liberty which the second clause does not address, and overinclusive because it’s not strictly necessary for the protection of liberty to always have the trial happen in the same county as the offense. That is the only sensible way to read this particular text.
The cited paper has many more examples.
Far from being an outlier, the second amendment is just one of many such grammatical constructions, and thus we can conclude that the justification clause is both underinclusive and overinclusive. It’s not legally meaningless because it colors the rights clause, but it’s far from controlling.
I’ve been explaining that repeatedly. Again, 200 years ago, “regulate” did not mean “government regulation”. It meant something much closer to “operation”. “Well regulated” simply meant “operating well”, “behaving properly”, etc. In context, “well regulated” meant “working well”. For example, Federalist #29 or #46 clearly uses the phrase to mean “a militia that is properly armed and trained”. The word “regulate” did not mean “controlled by government law”. I guess you need more examples of usage of the phrase outside of the context of gun rights.
Quotes from William Makepeace Thackeray – Vanity Fair, A Novel Without a Hero 1848
And a well brought up young woman, you know — with a well-regulated mind, must […]
[…] remissness for which I am sure every well-regulated person will blame the Major.
I fear poor Emmy had not a well-regulated mind. What were her parents doing, not to keep this little heart from beating so fast?
In this natural emotion every properly regulated mind will certain share […]
[…] she never would have admitted such an extremely ill-regulated personage into her chaste drawingroom.
Quoting from the original 1789 charter of the University of North Carolina. I think it’s absurd to say that a government regulates itself.
https://docsouth.unc.edu/unc/unc01-08/unc01-08.html
Whereas in all well regulated governments it is the indispensable duty of every Legislatures to consult the happiness of a rising generation […]
I’ve been meaning to verify the following quotes by going to my local library, but for the moment I’m going to assume that the quotes are genuine quotes from the Oxford English Dictionary citing example usage.
1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”
1714: “The practice of all well-regulated courts of justice in the world.”
1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”
1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”
1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”
1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”
Shall I go on?
In particular, the reading of the other State constitutions leads to the conclusion that the only proper way to read such texts is to assume that the justification clause is true, and then interpret the rights clause in light of the justification clause.
In other words, the clause does not say “so long as the justification is still factually true, the right shall be protected”. Rather, it says “we assert that this justification is factually true, and therefore the judges shall uphold this right”.
Thanks for the correction John. I’m down to one blurry eye, and never notice correctly spelled words despite the principle of the principal.
Oy, Tethys. :|
You have my sympathy. My eyesight is deteriorating, too.
…200 years ago, “regulate” did not mean “government regulation”. It meant something much closer to “operation”. “Well regulated” simply meant “operating well”, “behaving properly”, etc. In context, “well regulated” meant “working well”…The word “regulate” did not mean “controlled by government law”.
Holy crap, Gerrard, are you TRYING to be maximally ridiculous? Militias are created and funded by governments, and regulated by laws as to their purpose, powers and organization, and are required to enforce laws passed by national or state governments. So yes, whatever militias were created at that time — and any time thereafter — were, BY DEFINITION, subject to government regulation, because they were agencies of government, charged with carrying out certain duties of government. A militia that isn’t regulated by any lawful government isn’t really a “militia,” it’s an “armed gang.”
Also, the Constitution explicitly gives the US Congress the power to make laws regarding “the calling forth of the militia.” So yes, “the militia” was indeed supposed to be regulated and controlled by government law. (And that’s in the ORIGINAL Constitution, which predates the Bill of Rights. I mention that because you seem to think that’s important.)
I guess you need more examples of usage of the phrase outside of the context of gun rights…
None of them are relevant to how the phrase is used within the US Constitution. Apples to wombats.
Here’s one example: The 1784 New Hampshire Constitution…
First, state constitutions and their interpretation do not, and should not, constrain the interpretation of the US Constitution.
Second, the example you quoted is not an enumerated right, it’s a procedural requirement for criminal trials. Again, apples to wombats. (Also, state constitutions are really not the same kind of documents as the US Constitution, and of necessity they work differently as laws, so once again, apples to wombats.)
And third, you are again being blatantly dishonest when you imply that I’m arguing that a right is “not necessary anymore.” I’m saying that a certain right is LIMITED and INTENDED FOR A CERTAIN PURPOSE. There’s a difference, and you know it.
Why does anyone give a flying fuck what the Founding Farters originally intended?
The Constitution was designed to be amended.
If an amendment offends you, pluck it out and make another amendment.
Unless you think the constitution is the inerrant word of … something or other.
In other words, the clause does not say “so long as the justification is still factually true, the right shall be protected”. Rather, it says “we assert that this justification is factually true, and therefore the judges shall uphold this right”.
Actually, “the clause” says neither of those things. You’re giving false dichotomies a bad name. The Second Amendment is actually saying “We acknowledge this thing is necessary to ensure the security of a free state, therefore we grant this right so the people may have what is necessary for that end (as determined by elected lawmakers, and within the constraints of other rights and government duties as described elsewhere in the Constitution).”
Why does anyone give a flying fuck what the Founding Farters originally intended?
Actually, there’s no evidence that the Founders intended the Constitution to be interpreted only as they would have intended.
That’s what StevoR explicitly suggested doing. They explicitly suggested reworking the government to allow judges to do that. Jemolk also appears to suggest the same thing by saying “fuck the rule of law” (paraphrase?).
StevoR and Jemolk aren’t judges, dumbass.
Further to your example from the 1784 New Hampshire Constitution:
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed […]
First, that clause says “ought,” not “may.” And second, this wording does implicitly allow for an exception to the rule, in cases where strict adherence to it could be shown to endanger “the security of the life, liberty and estate of the citizen;” (i.e., if the defendant was a lone immigrant from a hated country like Iran, or was a teacher being demonized by Trumpian neighbors for teaching “critical race theory”). So in that instance at least, the explanatory preamble can be cited as a temper or counterbalance to the specific requirement, in a motion for a change of venue.
I think GOTS is just a bot, due to the inane logic it consistently deploys. So very Humpty Dumpty.
Humpty Dumpty wasn’t a bot
Humpty Dumpty shut up could not
All of his text-walls and all his citations
Same old robotic mental masturbations
(Okay, it’s a work in process…)
chigau
I agree. I think gun rights should be protected as long as the second amendment is a thing. Raging Bee is grossly misinterpreting the second amendment. That’s the current discussion.
.
Raging Bee
You’re still using an anachronistic definition of the word “militia”. Historically, and according to contemporary federal law, the militia of the United States is composed of basically all able-bodied adult males between 17 and 45. I have never received any military training of any kind. I have never owned a gun or fired a gun. I am a member of the militia.
The militia exists with or without government oversight. The militia is simply the people as viewed as a military fighting force. The militia preexists the US constitution, just like the people preexist the US constitution. The US constitution (not second amendment) grants the federal congress some control over the militia. The US constitution does not create the militia. It does not even define what “militia” means. That’s because the militia is something that already exists independently of the US constitution and the US government.
Correct. Note that the second amendment came afterward. It protects gun rights, and would supercede this earlier section of the constitution. So, congress could define certain training routines for members of the militia, as long as it didn’t violate someone’s gun rights. In fact, I rely on this interesting quirk, plus Bell v Burson, to argue that requiring mandatory government training courses to receive a gun owner’s license is clearly constitutional.
Absolutely ridiculous. Of course they’re relevant. Showing how the words were used at that time shows the meaning of the words at that time. You’re the one who says that they were speaking in normal everyday language, and I agree. The constitution and amendments were not written in secret code. They were written to be understood by the standard person with a relative minimum of obscure legal terminology. So, my sources showing the everyday common usage of the phrase “well-regulated” is totally relevant to the meaning of the same phrase in the second amendment. It does not mean “controlled by government regulations”. That meaning and usage of “regulate” did not exist yet in English. Instead, it simply meant “properly working”, “behaving properly”, etc.
Oh come on. This is also ridiculous. The federal constitution should not and cannot be properly interpreted in a vacuum. The other writings of the authors are very relevant, as well as public tracts, e.g. the Federalist Papers. In that same sense, citing Blackstone, or earlier English common law, or other US State constitutions of the time, is a perfectly reasonable thing to do to add context to the US federal constitution.
Further, in terms of general English language interpretation, clearly citing other English language documents of the same era of the same genre is quite relevant to determine the meaning of the historical document, the federal Constitution and second amendment.
Again, oh come on. You’re being Humpty-Dumpty now with your pedantry. It’s a constitutional right that could be claimed by the defendant of a court trial. A violation of that right brings direct personal harm to the defendant, which is why it’s a right of the defendant. The defendant would be the one injured, and thus it would be the defendant who would have standing to raise the issue at trial. No one else could raise that issue at trial. It’s a civil right of the defendant. The justification clause is also very clearly framed as protecting the interests of the defendant, aka preventing injury to the defendant.
I don’t see the difference. I really don’t. You’re trying to argue that the text includes a termination clause to be exercised by judges. I’m saying that it does not.
Ditto. There is no termination clause that can be exercised by judges. Rather, it’s an instruction to the judge to potentially assume a counter-factual while interpreting the rights-clause.
I’m not having a conversation with professional judges. I’m having a conversation with StevoR and Jemolk. They made some asinine remarks. I responded to those asinine remarks.
PS:
You’re still stuck with one of the biggest objections. If I’m not right about the meaning of the second amendment, then what you do think the second amendment means? Surely they didn’t pass a do-nothing amendment. It also gives a right to “the people”, not guaranteeing or a reserving a power to the States. The rest of the constitution and bill of rights is very clear about that difference. If you’re arguing that it guarantees or reserves a power to the States, it would be a rather noticeable outlier in the federal bill of rights which, except for number 10, guarantee individual rights against interference from the federal government.
You also have to grapple with the undeniable fact that there is an overwhelming amount of historical evidence, some of which I’ve quoted at length here, that everyone of political importance of that era all agreed that as English citizens, and as American citizens, they had the right to keep guns in order to be used to resist government oppression, according to the earlier English bill of rights of 1689, and then later according to the US federal bill of rights. Many US State constitutions also clearly defended individual gun rights. There is not a single author of that era that I’m aware of who disputes the notion that Americans have the right to be individually armed to the teeth, regardless of whether that right comes from the second amendment or not.
So, what does the second amendment mean? Guaranteeing the power of the States to have police forces? That’s ridiculous in large part because police in the English context were not yet invented, and it’s ridiculous to suggest that the federal constitution would grant a power to the States which the States did not have, and which would be contrary to the legal practices of the time. Police as we have them today would be basically illegal under the legal standards of the States back then. For more information, read the paper “Are Cops Constitutional?” by Roger Roots.
So, are you going to argue that it’s protecting the power of the US states to arm, train, and maintain their own State militias? That’s quite a linguistic leap from “right of the people to keep and bear arms” to “power of the US States to arm, train, and maintain each State militia.”
My interpretation fits the historical context perfectly. Yours makes no sense. Mine simply is “Because a national population that is well armed and trained for war is necessary to prevent tyranny and invasion, the individual right of the people to have guns and other weapons of war shall not be infringed”. Again, this interpretation is universally accepted and defended by every political author of that era. What do you have? You have grasping for straws because you have a prejudiced outcome, because you are so desperate to avoid this conclusion that you will say any amount of nonsense.
Tethys in 63
You lost me. Are you saying that the primary aim of freedom of religion is something other than protecting the religious practices of minority religions? Are you saying it’s to protect the religious practices of majority religions? that would make no sense. You don’t need to protect the majority’s religious rights via constitutional guarantee because the legislative process would be controlled by the majority who could then protect the majority’s rights via statutory law.
Majority or minority religions are not relevant to the US Constitutional right to freedom of religion.
The militia exists with or without government oversight. The militia is simply the people as viewed as a military fighting force. The militia preexists the US constitution, just like the people preexist the US constitution. The US constitution (not second amendment) grants the federal congress some control over the militia. The US constitution does not create the militia. It does not even define what “militia” means. That’s because the militia is something that already exists independently of the US constitution and the US government.
Excuse me while I belabor the obvious: “the militia” is an organization of people, and as such, it is no less bound by the people’s law than any other organization of people, public or private. “The militia” is not some abstract magical transcendent entity that predates or supersedes or exists separate and independent of the US Constitution or any real government. It’s not a being with agency, and it’s not above or beyond or before the law, let alone the Constitution, in any way. Your blithering is nothing but magical thinking, totally divorced from reality, bordering on the sort of “divine right” that liberal democracy and rule of law are designed to overthrow and replace. It is, in short, not just utter bullshit, but utter RELIGIOUS AUTHORITARIAN bullshit; and it has absolutely no place in any secular, democratic, constitutional form of government.
Seriously, you’re saying the same things about “the militia” as Russian Orthodox obscurantists say about “the Tsar.” It’s tyrannical know-nothingism either way. Take it all back to the FSB/GRU/ROC and tell them to send something better.
Tethys
I still don’t get what you’re trying to say. I didn’t say the first amendment only protects minority religions. At least, I meant to say that the purpose and value of the religious freedom clauses is to protect minority religions. Is that description really objectionable? Weird.
Still wrong. The militia is the people, and the people is the militia.
Sure. Give or take any explicit constitutional provision to the contrary, such as the explicit constitutional provision that guarantees individual gun rights for every person.
The militia is an abstract entity that predates the US constitution and government and existing independently of the US government, just like the people is an abstract entity (entities) that predates the US constitution and government, and exists independently of the US constitution and government. It’s not “transcendent”, whatever that means.
To the same extent that as a group of people don’t have agency, sure. I guess it depends on what you mean, because in other contexts, we often talk about the agency and choices of groups of people.
Do you mean that the militia must answer to the laws of the US government? Of course yes.
And you lost me on the rest of it. I’m just trying to correspond your misunderstanding of what “militia” is. The militia is not the national guard. It’s not a select corps of persons who are specially trained by the government. The militia is simply everyone. It’s the people (or at least the subpopulation of all adults of fighting age and fighting capacity, which is usually defined for historical and sexist reasons to be all able-bodied adult male citizens between 17 and 45). I noticed that you continued to misuse the word, and I am here to correct you. Again, stop thinking “national guard”, and start thinking “everyone subject to potentially being called for selective service / the draft”. That’s much closer to the real meaning of the word. Again, not “people who have been drafted”, but “the portion of the population who are required to register with the government so that they might be drafted”.
You lost me.
You’ve been lost for a long time, through no fault of any of us.
Are you saying that the primary aim of freedom of religion is something other than protecting the religious practices of minority religions?
Actually, yes, freedom of religion serves several purposes, among them the reduction of sectarian civil war and the prevention of religious irrationality and bigotry from infecting our government and institutions. I suspect that the Founders cared far more about those two purposes (at least in the short term) than they did about protecting people in minority religions.
The militia is the people, and the people is the militia.
Obvious nonsensical falsehood dismissed. You’re either totally clueless, totally delusional, or a malicious troll knowingly doing Steve Bannon’s bidding (“flood the system with shit”).
Current US federal law:
https://uscode.house.gov/view.xhtml?path=/prelim@title10/subtitleA/part1/chapter12&edition=prelim
This is has the working legal definition, more or less, of the word “militia” since the Assize Of Arms Act of 1181.
https://en.wikipedia.org/wiki/Assize_of_Arms_of_1181
The militia has always been composed of everyone. The militia has always existed as something to be contrasted with a professional army. The militia has always been primarily composed of unprofessional citizen soldiers, of everyday people called forth to fight. If they were professionals whose day job is “soldier”, then they would be a standing army. Militia is not standing army.
The militia is not the national guard. It’s not a select corps of persons who are specially trained by the government. The militia is simply everyone.
I’ve heard religious people say the same things about “God.”
Raging Bee
Did they cite current US federal law to back them up? Because I just did.
Current US federal law:
…
§246. Militia: composition and classes…
So now you’re admitting that the militia IS created, defined and regulated by law. I was right the whole time, and you always knew it.
Gerrard,
Therefore, they are not meant to protect non-minority religions.
(Christianity is not a non-minority religion)
Right about what? I don’t understand what point you think you’ve scored. I said the militia is basically synonymous with the people. You said that my claim was religious nonsense (paraphrase). I was right, and you were wrong.
Again, stop thinking “national guard”, and start thinking “everyone subject to potentially being called for selective service / the draft”.
It doesn’t matter how I think of it — either way, “the militia” is very clearly NOT “simply the people” as you so fatuously and repeatedly claim. And it’s not above, before or beyond the law either, as you also claim.
Did they cite current US federal law to back them up? Because I just did.
If they did, it would totally undermine their claims, as you just undermined yours.
I said the militia is basically synonymous with the people.
And then you admitted that it isn’t. Fuck off to bed.
Your pedantry skills are failing you. Something can have more than one purpose and effect. The primary purpose and effect can be X, and it can also have a secondary purpose and effect of Y.
Also, you are doing a mistaken by grouping all Christianity together. Remember when Jefferson wrote his famous letter coining the phrase “wall of separation between church and state” to the Baptists of Danbury Connecticut saying that the federal first amendment protected them from potential religious oppression from the majority religious group in the area? Remember that? Do you remember the identity of the group that the Baptists feared? It was the Congregationalists of Danbury Connecticut.
Saying that Christianity is a monolithic block which would never oppress some of its member subdivisions is really quite silly, even for you.
Raging Bee
I really don’t see how you win anything by reducing “the militia” from “everyone” to “all able-bodied adult male citizens between 17 and 44”. I don’t see how this wins you anything except a talking point so you can claim victory on an irrelevant technicality. The important point still is that “militia” is not some small group of people whose membership is at the discretion of the government.
And I’m still curious what do you think the second amendment is for and what it does. Why did they write it? And what does it do? Does it protect certain powers of the States? Does it protect the powers of the federal government? Or does it protect certain individual rights of the people? And if it protects a power of the federal government or the governments of the states, why did they use the language “right of the people […] shall not be infringed” which elsewhere always means individual right instead of the language “power of the congress” or “power of the States”?
We have multiple laws that protect people from being persecuted on the basis of their religion, in addition to the right to freedom of religion. Majority or minority religions simply aren’t relevant.
Federal laws prohibit discrimination based on a person’s national origin, race, age, color, religion, disability, sex, and familial status.
Let me quote again George Mason, who is arguably the father and principal author of the bill of rights.
The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot’s Debates, Volume 3]. Saturday, 14 June, 1788. https://memory.loc.gov/ammem/amlaw/lwed.html … A direct link to the particular page is sadly unavailable. The search function does work. Excerpt:
Bolding added by me.
The father of the bill of rights pretty clearly identifies “the people” as being basically synonymous with “the people”. This passage also pretty clearly shows that he considers membership in the militia as being something that ought to be outside of the control of government. After all, if the government could just restrict membership of the militia to a small select group, then George Mason’s comment here would make no sense.
Face facts: This is not the language of someone who believes that the militia exists at the discretion of government, but rather believes in an independent spiritual existence.
Let me quote James Madison from the same source. James Madison, father of and principal author of the US federal constitution.
Bolding added by me:
See how James Madison contrasts “regular forces” and “the people” / “the militia”. See how he clearly talks about using the people to put down an insurrection or fight against an invasion. Clearly he is using “the people” synonymously with “the militia”.
And again Federalist #46:
This person is also equating “the people” with “the militia”. Their numbers only make sense if you assume that the militia is composed of all men of fighting age.
Tethys
Sorry. I don’t know what else to say. You’re completely missing my point, and you’re seemingly attacking some point which I did not make. I don’t know how else to explain.
Who cares what the gunbot is burbling about colonial era militias, since the USA has a ridiculously well provisioned standing Army, Navy, Air Force, and Marines, in addition to the State National Guards.
Militias at the time the Constitution was written were officially expected to muster for active duty IF necessary, and obviously only consisted of able-bodied men in a certain age range in the sparsely populated regions. They would be useless against the US military or any invasion in modern times.
Banning some guns from civilians is clearly the solution to daily mass shootings, and it doesn’t infringe on the right to bear arms.
@GerrardOfTitanServer, RagingBee, etc. — To be clear about something here, I do in fact believe that rule of law is not a worthwhile or valuable principle in general. I phrased it in a way that was deliberately provocative, of course, as well, but I wasn’t joking or exaggerating. I wanted, in that statement, to make plain that there are people who do hold that radical a position openly, and in doing so to push Gerrard to deal with StevoR’s stated position as the more moderate variation that it was. Perhaps, however, a cleaner breakdown of my thoughts on the matter would have been preferable. We shall see.
To put it simply, our society, as it currently exists, has need of absolute rules because it’s structured as a competition. This is to our detriment. These absolute rules are easily exploited by those who care more about “winning” than about the principles behind the rules, because there is no way for them to ever be sufficiently comprehensive to cover every scenario. It also pushes them to be strictly reactive. In the context of a competition (like capitalism presumes society to be), you cannot change the rules in an ad-hoc fashion, nor can you change them retroactively, because in the context of a competition, even if it is not strictly zero-sum, people can gain individually by screwing each other over, and can be expected to try and do so. Life for social creatures, however, is not a competition, and we would do well to stop pretending it is. For social creatures such as us humans, life is a co-op game. Either we all win, or we all lose. In such a context, the rules need not be there for the purpose of placing limits on a competition to prevent it from becoming a war, but can be instead guides toward the principles that underlie them. In a society organized around cooperation and mutual aid, we would be able to lean on the spirit of the rules. This is just one more way in which organizing society around artificial scarcity and fights over plentiful resources (by which I mean capitalism) harms us.
Am I making sense? Writing blog comments in a style like they’re formal philosophy paper excerpts probably seems a bit pretentious, but I’m just trying to be as clear and comprehensive as I know how (without relying on jargon). Never really sure if I’m communicating what I want to be, especially dealing primarily with neurotypical people.
Gerrard,
I see.
So, you really meant to say that the purpose and value of the religious freedom clauses is not only to protect minority religions, but also to protect non-minority religions.
Fair enough, though I’d say that where you write ‘protect’ I can clearly see the effect is ‘privilege’.
More succinct version: “the purpose and value of the religious freedom clauses is to privilege religion”.
Obviously.
And, also obviously, if one legislates for the purpose of privileging religion, the rule of law privileges religion.
A perverse desire.
Jemolk,
Sure.
Related, it seems to me like that a GPT language model thingy could already be trained only in legislation and jurisprudence and logic and case law history to become the perfect and impartial judge.
(Interestingly, one could compare such a Judge trained on data going only up to a particular date with another instance trained on subsequent dates. Because the interpretation of the 2nd hasn’t exactly remained static, has it?)
Jemolk
That makes sense. I think it’s a pipedream that society could ever be organized in the way that you suggest, e.g. Utopia. I think we can do better about organizing society to get closer to your ideals, but we’ll always need some level of competition IMO, and we’ll always need some method of fairly resolving disputes, which means we’ll always need something like the current rule of law. Also, I’m sure that there’s a lot of room to maneuver to make it more flexible and fair without losing the intrinsic features that make rule of law valuable.
…
Tethys
Incorrect. The second federal militia act of 1792 did not limit itself to men in “sparsely populated regions”. It also said that every memberof the militia must acquire a certain kind of military gun, ammunition, and a laundry list of military equipment. It also said that they must assemble once a year with their equipment at designated locations. (As a practical matter, many people had formal or informal exemptions from militia duty. However, I think these exceptions are exceptions to the rule and should not be construed as the rule itself.)
What the fuck I don’t even
…
Notes from the Virginia legislature during debate over ratification of the new federal constitution. I cite this as an example to show that the militia is something other than the modern understanding of “police forces”, just in case anyone wants to make the argument that the second amendment is about protecting the powers of government to have police forces.
Elliot’s Debates –Monday, June 16, 1788.
So, militia is not police. Militia is not army. What is militia? It’s everyone. It’s the people.
See also, more George Mason, same source, same day.
(Note that George Mason continues after this quotation by describing a worry about a future where the government wrongly restricts membership in the militia.)
…
Here are some quotes that show the clear difference between “cops” and “militia members”.
Elliot’s Debates –Saturday, June 14, 1788.
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And many more examples.
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Here’s some more examples of equating the militia with the people.
Oh, sorry, I just relearned how to read.
#1 The many purposes of the second amendment, including especially the explicitly written purpose, require protection of private ownership of firearms at least comparable in effectiveness to standard infantry issue.
#2 To make any sort of significant dent in gun deaths, you basically need to ban all semiauto guns (and revolvers).
You can’t have #1 and #2 at the same time. We can’t solve our problem of gun deaths by banning certain classes, makes and models, of guns, so long as the second amendment exists.
PS: Banning certain types of semiauto rifles, while leaving other semiauto rifles untouched, and leaving handguns touched, just won’t do anything significant. We’re talking less than a 1% impact. Even for mass shooting, the effect of any such legislation would be rather small. I remind you that Virginia Tech happened solely with handguns, and almost entirely with low-capacity (10 round) magazines (with a few 15 round magazines). Columbine also happened entirely with 10 round magazines. Again, bans by make and model, and magazine capacity limits, are not going to do anything noteworthy.
Elliot’s Debates –Saturday, June 14, 1788.
Would it be safe to depend on militia alone, without the agency of regular forces, even in time of war? Were we to be invaded by a powerful, disciplined army, should we be safe with militia? Could men unacquainted with the hardships, and unskilled in the discipline of war, — men only inured to the peaceable occupations of domestic life, — encounter with success the most skilful veterans, inured to the fatigues and toils of campaigns?
Ah, historical.
<clickety-click>
Looking, I see Congress officially created the U.S. Military on September 29, 1789.
At which point any worries about depending on militia alone became moot.
Since then, the USA has had a well-regulated set of regular forces.
Fought a shitload of wars.
In short, the very purpose of having militia became moot.
Yet the 2nd is predicated on the supposed necessity of militia.
Though, as you note, some militia (you being a declared instance) members have neither training nor weapons. Not exactly well regulated, by your stated definition, is it?
Very silly, the whole thing.
I watch the news and see each new mass shooting (how many this year, so far) over there and wonder how this ficticious justification for mass adoption of killing tools (tools specifically made for killing) is supposedly both lawful and intended.
(I mean, it must be intended hitherto, no? Else, there would be an amendment, which surely would occur were it seen as merited by the Powers That Be)
John
Wanna know something? Eliot’s debates are not law. The second amendment is. The other side of that argument won.
Well, you brought it up, Gerrard.
Again: the supposed historic interpretation you espouse is at the very least moot.
And the mass shootings continue. As do the suicides. As do oopsies.
All because of mass gun adoption, supposedly for that militia the USA clearly does not need, and hasn’t needed for centuries.
Very silly.
(Obs, these arguments are but rationalisations)
I brought it up for evidence primarily regarding the meaning of the relevant words. I also brought it up regarding the near universal consensus that gun rights were to be protected. By contrast, I did not bring it up to argue that everyone thought the militia was an adequate substitution for a standing army — I think I mentioned this already up-page. Try to keep up.
Clearly not, given what you quoted.
But a standing army (and navy, and airforce, and spaceforce, and national guard) certainly is an adequate substitution for a standing army. Somehow, the 2nd doesn’t mention those.
Mate! I live in 2023, not the 18th century.
Non-sequitir.
Maybe gun ownership should be mandatory.
Also voting.
James Madison, father of and principal author of the US federal constitution.
Yeah, right, Madison wrote the whole thing and everyone else just signed on. And the Federalist Papers were “the owners’ manual for the Constitution.”
You know what’s really sad about you, Gerrard? No matter how much wall-o-text you post on any subject, no matter how many “authorities” you fawningly cite and quote, there’s always at least one single sentence that just leaps out of each pile to show how totally false, clueless and/or dishonest all your endless crankery really is.
(Also, none of your citations or quotes support your silly-assed mystical claims about “the militia.” “The militia” is not a supernatural metaphysical force/entity beyond the ken of law and reason, “regulated” really does mean “regulated,” the Constitutional Convention was not an ecumenical council of raving mystics or shamans, and the London Underground is not a political movement. PRATTs dismissed.)
I do in fact believe that rule of law is not a worthwhile or valuable principle in general.
Your belief is flatly disproven by centuries of experience, both in and out of the US. Rule of law is not perfect, doesn’t solve all problems, and can be abused — but adherence to it has also been invaluable in advancing justice and reducing many forms of abuse and injustice. If you think rule of law is not worthwhile or valuable, take a good look at countries that don’t have it. Like, maybe, Russia, Somalia, Afghanistan…would you even consider moving to any of those places expecting life to be better or more just?
America today isn’t going downhill because we adhere too much to rule-of-law. It’s going downhill because to many people are UNDERMINING it.
I also brought it up regarding the near universal consensus that gun rights were to be protected.
That “near universal consensus” you speak of is pure fantasy, just like that mystical militia that exists outside and beyond time, and damn near everything else you speak of.
I don’t get it. I provided many examples of many founders equating “the militia” with “the people”. I provided many examples that showed that “regulated” does not mean what you think it means. I don’t know what else I can do when you deny what is presented to you. “You can lead a horse to water, but you can’t make it drink.”
What would it take to convince you otherwise? Would it matter if I found more quotes that equates the militia with the people? Would it matter if I got quotes from the Oxford English Dictionary or other respectable sources that said that “regulated” doesn’t mean what you think it means? Would it matter if I quote and break down more examples of the same grammatical structure in US state constitutions and show that none of them can be plausibly interpreted as an early termination clause? What if I got clear quotes from every signer of the us constitution that Americans have gun rights to protect against tyrannical government? Or every member of every state legislature that ratified the bill of rights?
It seems like you deny every one of these points in spite of what I believe to be overwhelming evidence already provided. I just don’t get it.
I’m sorry. Did you ever explain what you think the second amendment actually means? I seem to recall that you only negate my interpretation without offering any substantive alternative.
Banning all paramilitary style weapons from civilians is not an infringement of the second amendment.
There is plenty of precedent for regulating guns, and outright banning entire classes of military gear to prevent mass murder. It’s quite effective.
Militias are the National Guard , so claiming that civilians are somehow in need of military weapons to form such militias is blatantly ridiculous.
I’d like to go back to Gerrard’s downright ridiculous mystical claim about “the militia” @76:
The militia exists with or without government oversight. The militia is simply the people as viewed as a military fighting force. The militia preexists the US constitution, just like the people preexist the US constitution. The US constitution (not second amendment) grants the federal congress some control over the militia. The US constitution does not create the militia. It does not even define what “militia” means. That’s because the militia is something that already exists independently of the US constitution and the US government.
Glorification and mystification of a “military fighting force,” and the elevation of said force to an abstract quasi-divine status before/above/beyond/outside any actual laws or governing authority, is a basic feature of fascist ideation, and has been since the dawn of fascism early in the last century. This is what Gerrard is hawking here: fascist ideology. This is what lies beneath all the window-dressing of cherry-picked, misrepresented quotes from the Founders and “grammar experts.”
Gerrard is a fascist troll. And the sheer volume and repetition of his text-wall comments strongly imply that he’s either an utterly unhinged crank who’s lost touch with reality a long time ago, or is getting paid by the word. Either way it’s all anti-democratic, anti-progress, anti-rational and anti-human-rights bullshit.
I just don’t get it.
You’ve said that a lot, Gerrard, on every thread in which you’re shown to be an utter fool. If you don’t understand what I’m talking about, then SHUT UP and stop pretending you can prove me wrong.
I’m sorry. Did you ever explain what you think the second amendment actually means?
You’ve already been shown, and shown yourself, to be utterly clueless and unhinged AT BEST. None of us owe you any explanation of anything — especially since you’ve already admitted you “just don’t get it.” Go to bed.
There is plenty of precedent for regulating guns, and outright banning entire classes of military gear to prevent mass murder. It’s quite effective.
Yeah, that’s why Gerrard spends so much effort quoting everyone BUT actual jurists. He’s got an awful lot of real-world experience and history to talk around.
Did the founders include slaves in the militia? Or don’t you consider them to have been people?
…
Of course they didn’t, and of course you do. My point is that “the people” as opposed to simply “people” is itself a mystical concept, readily recruited in the 20th century into the cause of fascism.
Thanks, KG, I was just getting to that basic misconception — or perhaps I should say DELIBERATE BLIND SPOT — that underlies all of Gerrard’s blithering about “THE militia” (always singular): the unspoken, and utterly false, belief that “the people” are, or ever were, a single homogeneous undifferentiated mass, never divided by either class, sex, race, ethnicity or religion. Only by believing that happy-pretendy-golden-age fantasy can he pretend that “the people” will only ever constitute ONE homogeneous militia that will always serve only ONE people’s agenda. By equating “the people” with “the militia” in his mind, he can then deny and ignore the messy reality of what a real civil society is, and how real people function in the real world.
And again, this is what fascists do: impose fantasy on real people.
Wait, so I’m a militia man now? Without a lick of training?
Do I get a rank and a salary?
Raging Bee
I think it’s a fascist bot, as the text-walls always contain patently false statements and very little evidence of anything approaching thought.
There are plenty of Americans who somehow have the impression that the US is a Christian country despite the fact that it’s explicitly secular via the Constitution. I’ve never heard any of them go on to claim that freedom of religion as enumerated by the Constitution has the purpose of protecting minority religions from majority religions.
Likewise the nonsense about militias sounds exactly like the word salad opinions of chatbots.
Carol Anderson in the Guardian – “America’s gun obsession is rooted in slavery.”:
<
blockquote>…For too long, the second amendment has been portrayed with a founding fathers aura swaddled in the stars and stripes.
But “a well-regulated militia” wasn’t, as the story goes, about how valiant and effective the militias were in repelling the British. George Washington [fun link] was disgusted with their lack of fighting ability and the way the men would just cut and run from battling against a professional army. Nor was the militia reliable as a force to uphold the law. In Shays’ Rebellion, bands of armed white men, who were in the state’s militia, attacked the Massachusetts government because of foreclosures and debt seizures, demonstrating, again, how unreliable the militia were. Boston merchants had to hire mercenaries to put down the rebellion.
On the other hand, where the militia had been steadfast was in controlling the enslaved Black population. Access to guns for white people was essential for this function.
In 1788, at the constitutional ratification convention in Virginia, a major source of contention was that the draft constitution had placed the training and arming of the states’ militia under federal control. Virginians Patrick Henry and George Mason balked, and raised the specter of a massive slave revolt left unchecked because Congress could not be trusted to summon the forces to protect the plantation owners. Mason warned that if and when Virginia’s enslaved rose up (as they had before), whites would be left “defenseless”. Patrick Henry explained that white plantation owners would be abandoned because “the north detests slavery”. In short, Black people had to be subjugated and contained and state control of the militia was the way to do that.
The sheer brutality of human bondage, where plantation owners were notorious for “barbarities such as scalding, burning, castrating and extracting the tongues or eyes of slaves”, had created an overwhelming fear among whites of the enslaved’s capacity and desire for retribution. A series of revolts in the 1600s and 1700s terrified white residents and led to a slew of laws forbidding Black people from having any weapons, including guns. The militias’ all-important role was to quash those revolts, especially if the uprising was widespread, as in the 1740 Stono Rebellion in South Carolina.
This function of the militias was so important during the war of independence that governments such as that in South Carolina devoted the lion’s share of their white manpower to the containment of the enslaved. As a result, the colony did not have enough white men to join the Continental Army and repel the British. The calculus was simple: it was more important to the plantation owners in the colonial government to maintain slavery and control Black people than to fight for American independence.
In other words, concerns about keeping enslaved Black people in check are the context and background to the second amendment. The same holds true for today….
(Her book about this is The Second: Race and Guns in a Fatally Unequal America. I haven’t read it yet, but her previous book was very good.)
Trying again…
Carol Anderson in the Guardian – “America’s gun obsession is rooted in slavery”:
(Her book about this is The Second: Race and Guns in a Fatally Unequal America. I haven’t read it yet, but her previous book was very good.)
Tethys @ #123:
Yes.
Tethys: I’m not convinced (yet), but you do have a point. Chatbots do tend to be confident though, unlike Gerrard who frequently falls back on “I just don’t get it” and other statements of flailing helpless ignorance. But that may have been part of this bot’s sample pool (“rantings of alienated cranks who can’t understand why nobody else takes their endless incoherent rants seriously”).
PZ: Yes and no. The militia is the people and the people is the militia — but the militia is a mystical entity beyond and outside of history, so you can’t be part of anything like that ‘cuz you’re a meanie materialist atheist. But you still have to buy a gun and keep your damn spiders from getting uppity and replacing us.
Maybe a person using some tech to generate some of the text for their posts.
Russian Trolls are semi-automated but have actual humans behind the screen. They probably have evolved to include AI, but they are still run by fascists.
https://www.reuters.com/world/europe/russias-prigozhin-admits-links-what-us-says-was-election-meddling-troll-farm-2023-02-14/
They haven’t stopped meddling in elections, just changed tactics to continue polluting all US media with fascist propaganda. Saturating every online space with bullshit is much easier if you can just train an army of chatbots to disseminate lies 24-7.
This (Twitter link) is pretty funny. Also not funny.
Tethys: I certainly do smell the occasional bit of Russian dressing on Gerrard’s word-salad. (I prefer Greek or cilantro-lime.)
PZ
You’re older than 44. You’re no longer a member of the mililita. When you were between 17 and 44, you were a member of the national militia and state militia unless you met one of the few exceptions.
Raging Bee
Emphasizing “the militia” is a very important point because people, including you, misunderstand the historical and current legal definition of militia. You still think that militia is a small select corps of people. It’s not.
I still invite you or anyone else to discuss this on Discord or any other text chat, voice chat, or video chat service of your choosing. I think there’s something lost in this communication medium. I’m really at a loss why you think this, and how you can read what I’ve read and come to such a wildly different conclusion. I just don’t understand.
I know you don’t owe me any explanation, but if you’re going to continue to engage in conversation and say that I’m wrong, then I think you do have a basic ethical and intellectual duty to give an explanation to myself and others. Otherwise you’re engaging dishonesty IMAO.
Tethys
Current federal law says otherwise. I cited it above.
KG
The founders didn’t consider slaves to be people. They also didn’t consider freed black people to be full citizens. Ditto for women. These are bad things. With the expansion of full citizenship to black people, the federal legal definition of militia changed, dropping the “whites only” bit from the definition. This is not a winning argument for you.
SC
Having just read most of those Virginia debate notes again, that was a concern, but a minor one. It is simply incorrect and ahistorical to describe slavery as the primary reason for the second amendment. Go and actually read it like I have.
Botfacts;
Edited for accuracy, since the article that GOTS claimed to have read was about Southern States tyrannically using their militias to enforce slavery. It’s like arguing with a goldfish.
Tethys
I don’t know what you’re talking about. The actual contents of the article seem to differ from your description substantially. From that article
.
Let me also observe that the Freedmen’s Bureau Bills, passed during Reconstruction era after the American Civil War, plus the discussions in that era of history about the unlawful disarming of newly freed black people, is good evidence against the assertion that second amendment is/was “only” or “mostly” about keeping black people in check.
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1039&context=lawreview
Emphasizing “the militia” is a very important point because people, including you, misunderstand the historical and current legal definition of militia. You still think that militia is a small select corps of people. It’s not.
Once again, you misrepresent what I said. Which shouldn’t surprise anyone, since you’ve so often admitted you “don’t get” or “don’t understand” what others have said here.
I still invite you or anyone else to discuss this on Discord or any other text chat, voice chat, or video chat service of your choosing. I think there’s something lost in this communication medium.
Why should anyone expect you to be less blatantly unhinged, or more intelligent, on any other medium? If you have anything sensible to say that you haven’t already said here, you can say it here. I, for one, see no reason to waste any more time chasing after you to continue an argument you’ve already lost after repeatedly showing dishonesty and bad faith. You’ve already shown us enough of your delusional fascist mindset; we really don’t need to see more, either here or anywhere else. Buh-bye.
Ok.
PS:
Do you want me to quote Blackstone, the Dred Scott SCOTUS opinion, or the Heller SCOTUS opinion? I already did quote the Dred Scott opinion.
And PPS:
If you are complaining that I’m not citing case law, you are also mistaken. I have already cited the Dred Scott court decision, and the the Steven Annis court decision. I am unaware of any other relevant American court decisions. Separately, I have also cited English bill of rights of 1689.
If you’re complaining that I haven’t cited the foremost legal scholars of that era and time, then you are mistaken. Back in circa 1800, there weren’t really law journals in America. Instead, the closest kind of political and legal discourse in America, and the most formal kind of political discourse in America, was newspaper articles and pamphlets. The Federalist Papers were the most influential and important pro-Constitution pamphlets regarding the US Constitution, and Noah’s Webster’s pamphlets were the second most influential and important pro-Constitution pamphlets. I have cited the Federalist Papers and Noah Webster’s pamphlets. I suppose I could cite and quote other relevant legal scholars such as Blackstone, but I didn’t think that would make a difference.
Having just read most of those Virginia debate notes again, that was a concern, but a minor one. It is simply incorrect and ahistorical to describe slavery as the primary reason for the second amendment.
God’s balls, your stupidity is just plain insulting. Do you really think ANY of the white men in that debate would have either needed or wanted to talk explicitly about slavery? They wouldn’t have had to — they all knew there were slaves, they all knew they needed lots of firepower to put down a slave revolt, and they also already knew that slave revolts had already happened, could happen again, and were both bloody and terrifying to the white upper classes. There would have been absolutely no need to mention it in any policy debate, since everyone was already in agreement about what needed to be done. (Do the notes describe anyone saying “What do we need guns for?”)
Yo, Gerrard, if you want to try the “Heller” bluff, go ahead. Just remember that I’ve called that bluff before, and I’ll call it again.
Raging Bee
How convenient for you that the lack of evidence in your favor is not detracting of your theory. This kind of retrofitting without any real examination of the history evidence reeks of unfalsifiable prejudiced conclusions. It reminds me a lot of evolutionary psychology, which everyone here should know is mostly unfalsifiable nonsense and simply the prejudices of the author being put forward under the guise of science.
Yes. I’ve cited it extensively here. To prevent the federal government from favoring one State over another, and to prevent tyranny in the federal government. In particular, they spend an inordinate amount of time on the proposition that giving the federal government any control over the militia. They spend a surprising amount of time worrying that this would allow the federal government to forth the militia of one State to march to another State to conquer it, or march the militia of one State to someone else to be malicious to their economy, or to march the militia of one State somewhere else as to create such a nuisance that the people of that State would disband their militia forces rather than put up with this annoyance, or that the federal government has the sole power to arm the militia which would allow the federal government to effectively disarm the militia and forbid the States from arming each individual State militia. There was a lot of paranoia about this.
Go read the relevant notes. It’s not that long. Just search for “militia” with the search restricted to Elliot’s debates.
What? What? You want me to cite fucking Scalia from the Heller majority opinion? Really?
I’m waiting…
Again, I really don’t know why I’m citing Scalia, because we both believe Scalia to be an opportunistic lying scumbag (who did occasionally get some things right, such as his second amendment and IIRC fourth amendment cases).
https://www.law.cornell.edu/supct/pdf/07-290P.ZO
Note that I cited that Volokh paper already above.
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And so on and so forth.
It’s as if troll cannot maintain a train of thought for the few seconds of time it takes to read from ‘regulated militia” to “right to bear arms”.
Nobody wants more troll interpretations of second amendment rights that ignore the mass murder and daily bloodshed by non militia people who just coincidentally happen to be overwhelmingly white and male.
Tethys
Odd, I swore I posted this already. Again, current federal law.
https://www.law.cornell.edu/uscode/text/10/246
Back to you
Judges should not and cannot rule against a civil right because it produces harmful side effects. The very purpose of making it a constitutionally protected civil right is to take it out of the hands of judges to make such a determination. Rule of law is this cultural belief; judges should not rule according to the common good when that is contrary to the law.
And whoops, misquote. Sorry. I meant:
Tethys
If they’re male, able-bodied, and between 17 and 44, then they are militia people. They are members of the militia.
Gerrard:
When you put it like that, it seems that non-males cannot be members of the militia.
It follows that the 2nd cannot apply to women under your formulation, since they don’t meet the gender criterion for militia.
No guns for women under your formulation!
Perhaps your formulation is… inexact.
GOTS @ #132, the article is based on her book, to which I also linked. She’s a historian and professor at Emory (turns out I’ve read two of her books! I’d forgotten she wrote Eyes Off the Prize, which was also very good) and backs up her arguments with a careful evaluation of the evidence. You rely on a superficial and biased reading of some small selection of sources, often fail to extract proper meaning from text, frequently neglect to address evidence that runs against your position, and argue by wall of text. In short, you proceed like a conspiracy theorist or propagandist, on a variety of subjects.
John
#1. If you read the federal law that I posted, you would see that women members of the organized militia, the national guard or the naval militia, are members of the (federal) militia. #2. The second amendment guarantees protection of the right of the people, and not a right of militia members. The right of the people is not contingent upon membership in the militia. See the Volokh paper for a full argument on this.
SC
Ok. Maybe I’ll read the book. Note that I’m going in quite skeptical because of the following simple reasons.
The rest of the bill of rights was simply a codification of some important rights that the Americans inherited from English common law and written English law, such as the English Bill Of Rights of 1689. The English Bill Of Rights of 1689 guaranteed individual gun rights in response to the king disarming part of the population in order to oppress them. The people being oppressed at that time were not black people. On just this alone, there is going to be an exceptionally high burden of evidence in order to convince me that gun rights in America is almost exclusively / mostly about ensuring enslaved black people stayed enslaved.
On top of this, I’ve read the debate notes from the Virginia debate notes over ratification of the Constitution. Very little of it concerns itself with black people of any kind. It seems quite implausible to me that they would use code words or otherwise obscure their real motivations in these debates. I see no reason why they should have hidden their concerns about enslaved black people. It seems most likely that they were being open, honest, and candid about their concerns. What reason would they have to speak in code or hide their supposedly primary motivation which was supposedly fear of enslaved black people?
Basically, this just seems to be a cherrypicked expert who goes against “formidable scholarship to the contrary” — in the words of a (black) Harvard law professor:
https://www.nytimes.com/2021/05/28/books/review/the-second-carol-anderson.html
@98. GerrardOfTitanServer :
You seem to encounter this a lot GOTS. Seriously, maybe you should consider that perhaps its either that your bad at writing and explaining what your point is here or (&?) your own arguments and views here are contradictory and confused and don’t add up, metaphorically speaking?
StevoR
I must be bad at writing, communication, and persuasion. That seems to be the most plausible explanation. Sorry.
@147. GerrardOfTitanServer :
Whether they want to be or not? Against their inclination like say they ar epacifisists or object tothe natur eof this militia or lack the skilland aptitiude and just aren’t good at being paramilitary members?
How about slaves? At the time the USA was founded it included slaves and dispossessed Native Americans many of whoem fit the able-bodied and aged 17-44 category. Were they included here or just citizens? .
Idiot is citing the laws concerning enlistment in the National Guard while repeatedly asserting that the word militia actually means all able bodied male civilians.
It plainly says no such thing, and uses the word militia to describe all active duty military that is eligible to enlist in the National Guard.
the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
In this instance, members of the militia refers to active and former members of the Regular Army, Regular Marines,etc, as is made plain by the highlighted link to section 313 of title 32.
StevoR
Sorry for my imprecision. I quoted the exact current federal law just a few posted above. Current federal law
https://www.law.cornell.edu/uscode/text/10/246
restricts membership of the militia to citizens, and – I’m not sure if I’m reading this correctly – but also those members of the national guard and naval militia who have declared the intent to become citizens. Do you have to make such a declaration to become a member of the national guard or naval militia? Perhaps.
Historically, they just said “only white people”. Example, the second federal militia act of 1792. Bolding added by me.
https://www.mountvernon.org/education/primary-source-collections/primary-source-collections/article/militia-act-of-1792/
Tethys in 155
Seriously? Fine. Let’s go to the actual text of the law instead of the codification. The actual text of the law is much clearer.
The militia act of 1903.
https://en.wikisource.org/wiki/Militia_Act_of_1903
Tethys
We also know that the militia is composed of all able-bodied adult males between 17 and 44 from the following sources.
The Federalist #46 says the United States militia consists of half a million people. At that time, the total population of the US was bout 4 million people. To arrive at the number of half a million: remove non-citizens, remove women, remove non-whites, and remove everyone younger than 18 or older than 44.
The second federal militia act of 1792 is quite clear in this matter. https://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/2nd_Congress/1st_Session/Chapter_33 “That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia […]”
From: American State Papers. Military Affairs. Volume 1. 1789 – 1819. Year 1812. Page 198. Internal Title: “No. 62” “The Militia”. Link: http://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=016/llsp016.db&Page=198 “That, by the laws of the United States, each citizen enrolled in the militia is put under obligations to provide himself with a good musket or rifle, and all the other military equipments prescribed by law. From the best estimate which the committee have been able to form, there is upwards of 250,000 fire arms and rifles in the hands of the militia, which have, a few instances excepted, been provided by, and are the property of, the individuals who hold them.” (Why only 1/4 million? As mentioned, historically there were a lot of exemptions for who was required to arm themselves as per the second federal act of 1792 and the corresponding state laws.)
PS:
SC,
I am unaware of any significant evidence against my position. For example, if you could find any historical author that said point-blank that American gun rights or the second amendment was primarily about keeping black slaves enslaved, I’d be interested. Instead, your argument seems to depend on starting with the assumption that everyone from that era spoke in code, and this is simply implausible. Another for example, slave-owners and whites in the south circa 1860 seemed quite able to speak plainly and clearly when they were telling us that it was all about preserving slavery when arguing in public for secession, and writing their new Confederate State constitutions, etc. Why didn’t they speak in code then?
It’s actually your expert which is guilty of conspiracy-theorist thinking. Projection. Ironic.
PPS:
Tethys,
This is what militia has always meant, the whole body of people, or male citizens who could fight. it goes back millennia. For example, consider the Assize of Arms Act of 1181.
https://en.wikipedia.org/wiki/Assize_of_Arms_of_1181
Militia has always stood in contrast to professional army. Militia has always meant the whole body of people, as opposed to a small professional standing army. If your day job is soldier, then conceptually you’re not militia – you’re army. By contrast, if your day job is anything but soldier, then you’re militia, and not army.
@141. GerrardOfTitanServer :
So, er, to prevent the Electoral College from existing then given how that favours the rural, less populous, red states over the urban more populated, blue ones? Seems there are many ways in which you can say some states are already favoured over others – notably red states being supported by blue ones rather ironically and as noted already red states having effectively more and a disproportionate political say than blue ones. Guns don’t help here.
Tyranny of federal govt? That has its own issues and needs definition – and there’s checks and balances with Congress and SCOTUS – but again, don’t see how guns help.
Paranoia. Yes. Emphasis on that last word. The one thing that helps paranoia is guns, right? (Does that really need a sarc tag?)
The thing we really need is a whole bunch of paanoid people who hate and fear others for irrrational reasons being armed and able to “defend themselves” by shooting those they are are paranoid – or racist and bigoted about. Like, say, a black kid turning up topick up his brother and ringing the doorbell at a racist paranoid person’s home. Guns and a supposed “right to bear them” is the problem NOT the solution here.
If there’s an issue with national and state level paranoia over in The States (which certainly looks like it is the case), I suggest that programs of better mental healthcare access to drugs, better education and de-esacalation, maybe even deprogramming for the cult members, eg theTrump cults, are what is needed and certainly seems like there are far, far better alternatives than giving everyone and anyone deadly weaponry designed to murder other human beings.
@ 153. GerrardOfTitanServer : Its not just that you are bad at explaining and persuading your attempts to do so regularly seem to have the opposite effect than you ostensibly intend. What you do here isn’t working and yet you keep doing it over and over again.Um, apology accepted I guess. I also urge you to seriously consider my second explanation here.
That’s an argument to repeal the second amendment, or an argument that the founders were wrong (and they sometimes / often were wrong). It’s not an argument that the second amendment does not protect individual gun rights.
Sure. I plead “no contest” to this argument that we ought to repeal the second amendment.
I am trying to vary my tactics occasionally to see what works better, but I’m also just mystified that so many seemingly reasonable people can be just so … obtuse … regarding this topic, in spite of what I would have thought is overwhelming argument and evidence which I have brought to bear. I do strongly suspect that many people in this thread are behaving irrationally because of a deep-seated prejudice, e.g. prejudged conclusion, which has reached the level of delusion, but I think it’s also likely that I could do better myself in my communication. I don’t know how yet, but I am trying to learn.
Yep, just as I predicted, you quote all the vague lip-service Scalia felt he had to pay to the gun nuts’ magical thinking about “the [unspecified] militia” and how “regulated” doesn’t mean “regulated.” But if you read a bit further, to part III p. 54, we see right away that Scalia and the majority either didn’t really believe a word of it, or admitted they couldn’t make it applicable to a specific ruling about gun rights:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815);…
And remember, Heller struck down ONE COUNT IT ONE local ordinance requiring people to keep their handguns dismantled and inoperable in their own homes, while admitting that the vast majority of current gun laws are not at all unconstitutional.
Like I said, the gun-rights crowd are bluffing when they cite Heller. It doesn’t say what they think it says, and they generally can’t handle it when this is pointed out to them.
But hey, not to worry, now you lot have Alito’s recent ruling to fall back on! You just have to deal with a badly written opinion that directly contradicts itself, but hey, beggars can’t be choosers…
G,
A pretty weak defensive rationalisation.
(I, for one, don’t live in a country where everyone is supposed to be armed — and yes, I suppose I’m prejudiced in that I don’t expect to be shot dead if I knock on someone’s door)
Raging Bee
So, yes, it was obvious to me that you thought I was wandering into a trap. However, I’m confused. What sort of trap did I fall into? What exactly did I say that Heller said, which Heller does not actually say?
The Heller decision is an example of another kind of judicial restraint, the idea that if a judge can punt on a bigger controversial issue by solving the case before them by deciding a narrower issue, then they should. They explicitly decided only one very narrow issue, leaving other gun rights issues to later court cases. Did I anywhere claim otherwise regarding the contents of Heller? I don’t think so.
The Heller decision is also an example of another kind of judicial restraint by respecting precedent, aka respecting case law. This is a good thing. The role of judges in a proper judicial system is a combination of original plain public meaning of the text combined with a healthy dose of respect for case law, aka precedent, even if that precedent is against the original plain public meaning of the text. In that regard, Heller seemingly upheld the case law of Miller regarding “unusual” weapons even though that is completely absent so far as I can tell from the text itself or any earlier writings.
The Heller decision is also a good example of protecting a right without demanding that the right be exercised without any limits whatsoever. Even though driving is a civil right protected by constitutional protections of due process, etc., the government may require training and licensing to exercise that right because of historical precedent and because of the intrinsic danger of exercising that right. The judges’ decision in Bell v Burson to uphold licensing of the right is a good thing. Similarly, the Heller opinion recognizes the same intrinsic danger of exercising gun rights, and names many sorts of permitted restrictions, including mandatory licensing schemes, that are not considered infringements. This is also a good thing.
So yea, again you seem to think you caught me in a gotcha, but you really didn’t.
GOTS @ #151:
I doubt it. (As I noted, for the record, I haven’t yet read the book.) I’ve seen your manner of proceeding. If you do, I doubt you’ll engage with it in an intellectually honest or serious way.
[…skipping past a wot…]
Ah, in your predictable style you’ve scrounged up a single review (described as “mixed” elsewhere) you see as supporting your point. I don’t have access, but gather that it’s from Randall Kennedy (a law scholar and not a trained historian).
From there:
A silly straw man.
(Just a note, from WP: “Amar, a self-described liberal, has since engaged in advocacy considered controversial among progressive outlets, bloggers, and professors. He argued in favor of Brett Kavanaugh’s appointment to the Court and argued that overturning Roe v. Wade would not affect other privacy rights.” One of the citations is to his “A Liberal’s Case for Brett Kavanaugh,” which sounds like it came from the NYT Pitchbot on Twitter.)
So she addresses it but also slights some considerations pointed to in a 1998 book. I assume this isn’t all of the “formidable scholarship to the contrary” he refers to, but FWIW there doesn’t seem to be a lot of pushback on the substance of her case since her book was published.
I don’t really think you’re this unimaginative. Look at any debate involving Republicans for the past several decades and their language and framing. What Anderson does is put these narrow official debates in the broader historical context. There’s no way to understand unspoken premises that those involved shared, calculations about the sort of rhetoric that will be most effective, face-saving euphemisms and dog whistles, or claimed principles that turned out to be pretextual (or at least didn’t turn out to be especially strongly held in the face of other concerns) without this context.
Tyranny of federal govt? That has its own issues and needs definition…
I’m pretty sure that the slaveowning states’ definition included “any talk or action aimed at abolishing slavery or helping slaves to escape bondage.”
Raging Bee
Did you really think I was arguing for gun rights without restrictions? This is clearly not true. #28 in this thread for example. Again, I’m entirely at a loss. There is a huge gap in communication between us. It seems like you think I said something which is contradicted by the contents of Heller, but I don’t think I did. It really seems like you’re arguing with what someone else is saying, and saddling me with the defense of what other people, often nuts, have said regarding gun rights. Could you please not do that?
G,
Even if it’s bad precedent?
Way to enshrine bad decisions into law, and then build upon those foundations.
(Thus, guns everywhere)
I’m sorry. What? Was this book published by a peer-reviewed university press? I’ll assume so for the sake of argument. Are you really saying that passing such peer review really allows us to conclude that there wasn’t a lot of pushback from other academics about the content? Seriously? Come on. You should know better than this. By some estimates, half of everything published in peer review is garbage (which varies substantially by the scientific category). You should know this. Citing a random peer-reviewed paper or book is better than citing a random blog, all other things being equal, but citing a single peer-reviewed paper is a very, very different from citing a scientific or scholarly consensus that develops over years as many peer-reviewed papers are published, read, reviewed, commented on, built on, etc.
It’s hard to take you seriously if you respect peer review this much.
This makes sense in today’s culture because many of the Republican talking points are considered verboten. That’s why they speak in code. Applying this same hypothesis to the second amendment only makes sense to me if there was some massive cultural change from circa 1790 to circa 1860, a specific massive cultural change where it was socially verboten to be pro slavery in 1790, and it was socially permitted to be pro slavery in 1860 in order to explain the voluminous writings of the pro-slavery people before the Civil War. That specific massive culture shift is just not plausible.
Also, even today, you can find plenty of authors from all sides of the isle who speak plainly about the issues of racism on both sides. In particular, Republicans might speak in code, but their opponents do not, and they call out their real motivations in plain language and attack them. This sort of text is curiously missing from the historical record. You are positing that there was a pro-slavery faction circa 1790 that had to speak in code about their objections to the constitution, but the pro-constitution authors, the federalists, did not call out their duplicity. That’s very strange. By contrast, we do have prominent authors of that time calling out the evils of slavery, and so talking about the evils of slavery clearly wasn’t so socially verboten that no one talked about it.
So, where are the anti-slavery authors of that era who are attacking gun rights advocates for being pro-slavery? Again, there were plenty of such anti-slavery authors who attacked pro-slavery persons on other policies, but not on gun rights. Why is that? As far as I know, there is not a single such text. Not. A. One. That’s simply not plausible under the hypothesis that gun rights was the cornerstone of slavery and the hypothesis that gun rights existed primarily to preserve slavery. Thus, I conclude that this entire construction is mostly a figment of your and Ms Anderson’s imagination.
I’ll still probably read the book. It might have some interesting sources in there that I can use, or that I use can to temper my current opinions. I’m sure it’s not all-wrong. Surely this formed part of the motivation to keep the power of the states to arm and train and maintain each corresponding State militia. However, the conclusion that gun rights is primarily about slavery is just wrong.
Instead, your argument seems to depend on starting with the assumption that everyone from that era spoke in code…
Yet another willful misrepresentation of what we’ve said. We’re not saying policymakers of that era “spoke in code” about arming a militia to keep slaves in their place; we’re saying they didn’t have to speak about that AT ALL. They were working to secure a right to arm themselves and raise a militia, and none of them had to be reminded, in code or not, what said militia was needed for.
Seriously, you’re a fucking unhinged liar, and no amount of text-wall comments can hide it.
John
Yes. Even if it’s bad precedent. That’s what basically all western judicial systems do. They invariably must. Without case law, every court cannot review every case anew from original sources, and that’s just insane. Consequently, courts must rely on case law, and inevitably some of that case law which they depend on is less than ideal, e.g. bad. This is an inescapable part of case law and the modern western judicial system.
So, when should a judge overturn bad case law vs uphold the bad case law? That is a very complicated question for which I do not have a clear-cut answer. It is a value judgment based on many competing interests, such as the public good that results from stability of the law and predictability of the law, vs the value that the laws as expressed by the public through their representatives should be respected instead of respecting the mistakes of unelected judges.
Again, I’m sure you can find whole books written on this topic that can do a far better job than I can to resolve these difficult issues.
Raging Bee.
I was quoting SC, and responding to SC, not you. Sorry if that wasn’t clear enough. I know you never said such a thing. SC did say such a thing.
Oh, I think I see now.
And yet there is a massive amount of recorded texts from the federalists and anti-federalists who gave many reasons for having gun rights, and for protecting gun rights from federal intervention, and as best as I can tell from my cursory examination, the vast majority of those given reasons had nothing to do with oppressing slaves. I would describe this as “reminding” others “what [the] militia was needed for”, especially for the voluminous recordings of such things in the recorded notes of debate in the Virginia legislature, citations above.
And again, I find it entirely implausible that there was not a single author from that time who stated that the primary motivation for guns rights was to oppress slaves. Not a one. So, not only were the gun rights activists speaking in code, but so too were the anti-slavery advocates, the abolitionists, who all chose for some reason to not critique gun rights for being the foundation of slavery, and not even mention that the primary reason to protect gun rights was slavery. This is basically a conspiracy theory. You have to hypothesize massive uncoordinated actions by everyone on every side of the issue to decide that they won’t speak plainly about the issue, and only speak about it obliquely or not at all. This is simply not plausible.
Similarly, you’re saying that it was so obvious that none of them would have reason to mention it? Have you even read these things? Please. Read them. They mention obvious things all the time. What you’re suggesting is simply not plausible. Rather, it’s completely ridiculous. It’s clearly grasping at straws.
However, the conclusion that gun rights is primarily about slavery is just wrong.
It’s nowhere near as wrong as the assertion that gun rights had nothing at all to do with slavery. Gun rights were about [white] people protecting themselves from the serious threats they knew in their times, some of the most pressing ones being: foreign invaders, Indian raiders, and slave rebellions. The latter threat was well known throughout the areas of the trans-Atlantic slave trade, and were dealt with systematically, brutally, and with LOTS of armed force, from both standing armies and local militias. You only make yourself look even stupider (and more dishonest) than you already do when you try to minimize the obvious connection between gun rights and slavery.
Also also, why am I being dragged into this argument anyway? It’s non-sequitir. Even if you were right in your conspiracy theory that everyone agreed to not mention the real reason they were protecting gun rights, it would not matter. It would not change the simple original plain public meaning of the text of the second amendment, which says nothing about slavery. Laws have effect not according to the hidden intentions of the authors. They have effect based on what they actually say. The second amendment text mentions nothing about slavery. It simply says that a well armed general population is necessary to prevent tyranny and invasion, and therefore individual gun rights should not be infringed. So, this wonderful conspiracy theory is actually completely irrelevant for how judges should interpret and apply the second amendment.
Perhaps. Did I actually say or imply that? If so, my apologies. Clearly it had some (small) but significant impact on the development of gun rights in America.
Ehhh. I think Scalia in Heller makes an interseting arugment when he says that hunting and self defense were probably more immediately important and highly valued reasons for for gun rights by most people. As Scalia said, it’s plausible that the second amendment mentions security of the free state, including safety from foreign invaders, native Americans, and slave rebellions(?), but also safety from oppression from other US States or oppression from the federal government, because those were the immediate fears which prompted the need to create a law, the second amendment, to curtail specifically action by the federal government. So, generously, the text can be taken to imply that these were the primary motivations to limit federal government power, but it can’t be taken to imply that these were the most important reasons for gun rights generally. I’m not convinced of this argument, but it’s plaisible and interesting.
So, I’m not ready to grant you that these were the primary reasons for gun rights. Personal self defense against petty criminals, and weapons for use for enforcing the justice system (e.g. posse comitatus, not the new thing, but the old thing where everyone had the obligation to take up nearby arms upon being called by sheriffs and constables to help them enforce laws against unusually large resistance), and hunting, were surely important reasons as well, and maybe even more important.
Sure. It’s obvious. I grant that obvious and important connection. Is it the most important reason that anyone from that period would give for gun rights? Possible, but doubtful, IMO. To say it’s by far and away the most important reason, as Carol Anderson seemingly does, is just silly. I guess I walked back my position a little bit just now. Sorry my stronger initial position.
Re 176
Huh. Could “security of a free State” be read to include putting down slave revolts? I guess so. Interesting. I guess I was wrong on that point.
Still doesn’t change the second part of the amendment which guarantees an individual right which is not contingent on putting down slave revolts nor membership in any organized or unorganized militia.
Do you…know what peer review is?
I was talking about the reception of the book since it was published in 2021. Your best effort scraped up one mixed review from a legal scholar, citing (in the excerpt you provided) another legal scholar’s book from 1998. (And even then, he has to strawman her argument.) There doesn’t appear to have been a wave of historians coming out to challenge her claims, as you’d expect if the book truly “goes against ‘formidable scholarship to the contrary’.”
Seriously, you could have read a solid chunk of the book in the time you (and I mean that loosely) spent churning out this simplistic blather.
G,
vs
So, it’s invariable that they must not overturn it, but also there can be circumstances when they must overturn it.
(Truly, it is complicated! Knotty)
SC
First, recognize that this is non-sequitir w.r.t. the legal effect of the second amendment. Again, judges should decide laws based on the actual content of the text, and not on some secret hidden meaning, and thus this entire sub-conversation is irrelevant to the proper judicial interpretation and application of the second amendment.
Second, regarding this irrelevant claim, just because I’m curious. Do you have a single, solitary source, contemporary with the ratification of the constitution or second amendment, credible or not, who supports the notion that the biggest reason / primary reason for the protection of gun rights in America, or the federal second amendment particularly, was the preservation of slavery? Either from a pro-gun rights activist, federalist, anti-federalist, abolitionist, or anyone else? It could even be in a private letter – I don’t care. If you don’t even have one such source, then you are spouting a conspiracy theory. I’m pretty sure you don’t even have one source, and instead you and Ms Anderson are relying on reading tea leaves to reconstruct intentions to past authors without a shred of written evidence from the era, and this is in spite of the clear expectation that there ought to be at least some such written evidence, and arguably there ought to be a lot of such written evidence. Thus your and Ms Anderson’s idea that it was all or mostly about slavery has no merit, and can accurately be described as a conspiracy theory.
In a few minutes away from this thread, I read the free sample of the Anderson book available on Amazon. Maybe at least read that. It’s like 20 pages or something. Just try to inform yourself about the history in the most basic way.
Oh no! John was being overly literal and pedantic again in spite of my meaning being clear and obvious to all readers including John. Whatever will I die?
Die in a fire John.
Is there a rational reason for filling this thread with nonsensical ramblings about militias?
The topic is mass murder facilitated by paramilitary weapons. It’s obvious to the real humans that comment here that these guns should have been banned completely as regards the general public, much as machine guns and mortars aren’t sold to the general public.
Anglo-Saxon fyrdd (the kings guard of medieval Europe) aren’t remotely relevant to the US definition of militias or the right to bear arms.
You needed a sword, a horse, and to be a free landowner to bring a legal suit to the thing circa the Merovingian Era.
This is also irrelevant to the problem of the right wing fascists subverting the common good by permitting paramilitary weaponry to be sold to any loon with a gun fetish. It’s toxic masculinity masquerading as public policy.
Since I said to GOTS @ #149 “you proceed like a conspiracy theorist,” they have called the (unread) argument presented by Anderson a conspiracy theory five times: #174, #176 (twice), and #181 (twice).
Stupid, but interesting.
G:
It’s OK, I know you have sympathy for me, and that this just expresses exasperation.
You are a good person in your own mind. Mean well, all that.
It’s notable that you don’t dispute that when I apply literalism and pedantry to what you write, it is evidently incoherent. I can see how that might be frustrating.
Incidentally, points of law are supposed to be literal and pedantic, no?
That’s your thing, this “rule of law”. :)
(BTW, it’s non sequitur, if you want to show erudition)
So, where are the anti-slavery authors of that era who are attacking gun rights advocates for being pro-slavery?
Um…maybe they were trying to stay focused on attacking slavery itself? I’m guessing that’s what I would have been doing — keeping everyone focused on the institution of slavery itself and the barbaric injustices suffered by the SLAVES at the hands of SLAVE-OWNERS. Why would any sensible abolitionist want to be distracted away from that central issue?
SC
Ok. Finished reading all of the free pages from the free preview on google books. My prediction about the contents was about right. A lot of interesting stuff in there. Very compelling arguments to the well-known facts that racism and slavery was core to the whole national history, and especially in the South. Very compelling arguments to the obvious facts that black people, even free black people, had less rights than white people, and the unsurprising fact that free black people were often denied gun rights as well. A lot of really interesting details of law and history.
Know what I didn’t see? A single source or proper argument to justify the final conclusion: the assertion made that gun rights and the second amendment were primarily intended or valued for the oppression of slaves. Instead, the author just builds up voluminous evidence about how important it was to have a lot of heavily armed white people to oppressing black slave, and there’s a lot of that kind of evidence, and then makes an unspoken sleight-of-hand move to reach the conclusion. This final move can be paraphrased “well, given how much evidence we have about how important it was, it’s obvious that it must have been the reason for gun rights / which white people valued the most”. I still think that final step, that final conclusion, is false.
If you want to reach that conclusion about motivation, intent, and valuation, you must do a comparative analysis of the different values. Moreover, you can’t do an analysis based on what you perceive the value to be to them. Rather, you have to do an analysis based on what they actually perceive the value to be, which might or might not be completely inconsistent with reality.
Remember, the claim is not “the most impactful feature of the second amendment was to oppress slaves”, which the author is closer to reaching (but still not yet reached). Rather, the claim is “the design or intention (as opposed to observable effect) of the second amendment was primarily to oppress slaves”, and the author does a very poor job of attempting to justify that conclusion.
Is there a rational reason for filling this thread with nonsensical ramblings about militias?
Yes — it’s so gun-rights loons can pretend they have an excuse to ignore the first half of their favorite sentence in the Constitution.
This is also irrelevant to the problem of the right wing fascists subverting the common good by permitting paramilitary weaponry to be sold to any loon with a gun fetish. It’s toxic masculinity masquerading as public policy.
And as the Heller ruling admits, after wading through all that bullshit about militias, we can indeed make laws to prohibit such weapons, in order to ensure “the security of a free state.” All that vague blithering about [the second half of] the Second Amendment is nothing but a distraction from both our need, and our actual legal ability, to get guns away from violent bigots and lunatics.
Actually, in many US states machine guns are sold to the general public. You just have to pass an expensive and thorough background check by the ATF, and live in a US State that doesn’t forbid ownership of machine gnus (and there are many such US States), and you too can buy a machine gun.
…
For the same reasons that you’re interested in it now? I mean, most of these issues are not new. The mass atrocities committed on black slaves was permitted only by maintaining a heavily armed and militarized society in the South. That seems like something important enough and relevant enough you think someone would mention “and this is the most important reason for guns rights” at least once.
WTF? It’s the free sample. When it cuts out, we’re in 1739.
SC and Raging Bee
Riddle me this – if the primary intention for protecting gun rights was enabling slavery, then why did some / most US State constitutions of slave-free states written while they were slave-free also include protections for gun rights? I mentioned a similar argument before – why did the English Bill Of Rights of 1689 protect gun rights when it had nothing to do with preserving slavery? I think this line of argument is a pretty solid defeater to this ridiculous idea.
As I said, it seems pretty apparent to me that this is all part of some unconscious twisting of the evidence to fit preconceived conclusions, or worse, willful distortion of the truth in subversion of the rule of law. It’s not true that the primary motivation for protecting gun rights was to enable slavery. And even if it were true, that reason is (arguably) not mentioned in the text of the second amendment, and author’s intent is not relevant for proper jurisprudence. And even if the second amendment explicitly mentioned “preserving slavery” instead of “security of a free State”, it still wouldn’t change or control the rights clause which is a protection of individual rights apart from any service in an organized militia or slave patrol. There are so many logical steps that you need to all be true in order for you to reach the conclusion that you want, but every single step is wrong.
My free sample went further. My point still remains that all of this cited evidence is mostly irrelevant to the claim that they’re making. They’re not making a claim about “primary observable effect of the law”. They’re making a claim about the primary intent or motivation or reason for the law, which is often something completely different. I can see the form of argument being built up, and it’s fallacious.
I’ll still get a copy from my library and read it all tomorrow. Should make for an interesting reading, making me even more horrified and ashamed of this country’s history of racism, including the modern day.
On this point, you are wrong. Miller and Heller only upheld bans on “unusual” weapons that were not part of standard military doctrine, like sawed-off shotguns, and bans on especially dangerous weapons, which the majority uses to describe grenades and maybe machine guns e.g. assault rifles. What the opinion did not explicitly mention is the legality of any ban of semiauto handguns and rifles. Further, Heller actually struct down a ban on semiauto handguns.
I have little doubt that the court will strike down California’s “assault weapons ban” aka California’s ban on scary-looking semiauto rifles as well. I bet they also strike down California’s ban on rifles with quick-replace magazines or whatever the exact details are. Heller did not mention these things specifically, and these are the current battlegrounds of gun control, and unfortunately for all of us, my predictions about future court decisions are probably accurate. Gun control laws by blanket bans of make and model, of category or type, for mere semiauto firearms, are going to be dead on arrival.
Our best hope without constitutional amendment still remains universal background checks, waiting periods, stringent safety and training courses to get a gun owner’s license, and other suff like that.
Ah – Google preview. But that’s missing big chunks of pages describing what’s happening at key moments, so… In any case, this is what I was talking about above:
“racism and slavery was core to the whole national history”
“free black people were often denied gun rights”
“voluminous evidence about how important it was to have a lot of heavily armed white people to oppressing black slave” (not really English here)
Since you find this all unobjectionable, then it should logically complicate your previous understanding of (their understanding of) the meaning or purpose of a “militia” and “gun rights.” But I don’t expect it will, judging from your past history, or that you’ll really engage with the book or these arguments.
I think Scalia in Heller makes an interseting arugment when he says that hunting and self defense were probably more immediately important and highly valued reasons for for gun rights by most people. As Scalia said, it’s plausible that the second amendment mentions security of the free state, including safety from foreign invaders, native Americans, and slave rebellions(?), but also safety from oppression from…
Yeah, well, Scalia is just another white reactionary minimizing the reality of slavery in US history. That’s not exactly unusual, as the current moral panic about the teaching of US history proves.
Do you have a single, solitary source, contemporary with the ratification of the constitution or second amendment, credible or not, who supports the notion that the biggest reason / primary reason for the protection of gun rights in America, or the federal second amendment particularly, was the preservation of slavery?
Are you fucking kidding me? The Southern states’ NUMBER ONE PRIORITY was the preservation of slavery, literally from before the Revolution. Their entire economy depended on it (as did the US economy as a whole back then), and cotton was very labor-intensive and required HUGE numbers of slaves, who were a constant threat requiring large amounts of systematic brutality and firepower to keep them in place. It is utterly absurd to think or claim that this reality had no significant bearing on gun-rights policies.
https://en.m.wikipedia.org/wiki/Quakers_in_the_abolition_movement
The Quakers are also conscientious objectors to military service and bearing arms in general, so it’s asinine to ask for anti slavery rhetoric that also delves into any right to bearing arms.
They did not like either form of tyranny.
Further, Heller actually struct down a ban on semiauto handguns.
Really? Please quote that bit, with the page number, ‘cuz I seem to have missed it.
SC
You completely lost me. Take one point in particular – free black people were not allowed to own guns. Sure. They didn’t have a lot of other basic civil rights that white people did have. Gun rights is not special in this regard. Free black people were second class citizens, or some sort of second-class resident non-citizen. How do you take this uncontroversial fact, that black people were not full citizens and they were denied many standard civil rights of white people, and come to some sort of conclusion that contradicts my position about the meaning of the second amendment? What you specifically wrote makes absolutely no sense.
By contrast, showing that gun rights were vital to oppress their slaves which was central to their way of life, that’s at least somewhat relevant, if only circumstantially.
But again, the point that you are willfully not getting is that militia and gun rights were not invented by the Americans in circa 1790. They were invented a thousand or more years earlier. Offhand, I can trace militia in the preceding culture as far back as the Assize Of Arms Act of 1181, and I can trace back individual gun rights in the preceding culture as far back as the English Bill Of Rights of 1689, and none of this culture had anything to do with black slavery. To meet your preconceived conclusions, you blithely ignore this rich history and focus on this conspiracy theory with absolutely zero written testimony to back up it, inferring belief solely from their actions and consequences, ignoring the voluminous writings where they claim to express their real motivations as being inaccurate or incomplete for some reason.
No. The bill of rights, amendments 1-8, were simply codification of civil rights that everyone already agreed to. The controversy between the federalists and anti-federalists was not because the rights were controversial. The rights were near unanimously believed to be necessary.
And again, why should a free State, when writing up their State constitution, include a provision that protects individual gun rights? It’s because gun rights were important to the English turned Americans for reasons other than slavery.
Anderson, pp. 5-6: “Just as the continuation of the Atlantic slave trade for an additional twenty years, the three-fifths clause, and the fugitive slave clause were embedded in the Constitution to purchase the South’s participation in the United States of America, the Second Amendment was also a bribe.”
lolwut
https://www.law.cornell.edu/supct/pdf/07-290P.ZO
…
I don’t think so. I think everyone, abolitionists and slave-owners, all believed in their English common law rights to have guns, as codified by the English Bill Of Rights of 1689 (which had nothing to do with slavery). This is what they wrote, at great length. Maintaining slavery was barely mentioned by contrast. You have to add some bizarre additional hypothesis to make this evidence compatible with your theory, and adding this additional entirely unsupported hyppthesis actually makes your whole explanation less likely. That’s how logic and probability works. Adding the entirely supported hypothesis that they wouldn’t talk about it makes your whole idea less likely to be true.
Oh, I know you said that they didn’t need to talk about it because everyone knew already. Bullshit. The writings that we have show that they discussed every obvious thing in excruciating detail over and over again.
Maybe you think that they were embarrassed to mention slavery in regards to gun rights. Also bullshit. Some of those slave-owners were quite brazen in their writings. If this is why they pushed for the second amendment, there would have been a lot of writing about it which survived. There is no such document which says that gun rights or the second amendment exists primarily to uphold slavery. Oh, we have some documents like this, but even in those documents, the issues of slave patrols take far less space and time compared to other concerns. Again, I hear you saying already “but they were speaking indirectly, not coming outright to say their real reasons of slavery”, and again, I apply the same reasoning to say that’s completely bullshit.
This is why your idea is a conspiracy-theory. It requires everyone to behave in a coordinated way without any actual coordination to keep secret something which is known by tens of thousands of people, without a single person leaking the secret, in order to be consistent with the available evidence, e.g. historical documents.
This is a perfect example. I would challenge anyone to read the free samples at Amazon and Google and come to this conclusion. GOTS is dim, dishonest, or doing a job requiring willful ignorance or denial. Whichever it is, I’ve spent enough time here.
Bolding added by me:
Yea. I read that. I see that claim. Do you know what I don’t see? Any sort of reasoned argument based on evidence that it’s actually true. I just see it being asserted by fiat.
I’m describing reality, not the contents of the book. Black people for the most part could not vote, they could not run for office, they could not carry guns, they could not sit on juries, they suffered from informal or legal segregation. I think that qualifies as “a lot of civil rights”. That’s just off the top of my head.
I’m so confused how you could find what I said objectionable, or even anything but obviously true.
To continue, so why is the denial of gun rights in this broader context of denial of many other civil rights noteworthy as it relates to discussions of the second amendment? I don’t see you trying to draw conclusions about the right to vote based on black people being denied the right to vote, or draw conclusions about the right to run for public office based on black people being denied the right to do so, and so on and so forth. Again, what’s so special about gun rights in this broader context of denying so many other basic civil rights? Answer: There isn’t anything special. It says nothing about gun rights or the second amendment. It simply say that black people were oppressed in a multifaceted way, of which lack of gun rights was one small part of the whole.
– I’m so confused how you could find what I said objectionable, or even anything but obviously true.
Lol, troll bot is sad we don’t believe any of its propaganda about guns or law, and is so confused about why we find lies objectionable.
If the USA had universal health care, this would not happen.
There’s no point talking to GOTS, clearly. But seriously, I encourage anyone to check out even the limited samples of the book available and see the multiple examples of them doing this.
Another one – Carl T. Bogus, Madison’s Militia: The Hidden History of the Second Amendment:
What was GerrardOfTitanServer’s previous name?
Aside from all the other inanity, “gun rights” are not basic civil rights.
[EnlightenmentLiberal, chigau]
John Morales @ #211, really? I didn’t know/remember that.
Yep. I wanted to avoid the connotation of libertarian. Changed my name long ago. I mentioned this for a while when I did it.
Good night, all.
SC
Sorry if I missed it, but Ithink you still didn’t answer a question important to me. Do you agree or disagree that this whole discussion about the real (secret) purpose of the second amendment has no bearing today on how judges should interpret it? More specifically, do you agree or disagree with the proposition that judges should rule according to the text of the law and not according to the hidden intentions of the authors? I’m just wondering if you brought this up as a rebuttal of my points about the second amendment, or if you merely intended some kind of poisoning the well fallacy.
Gerrard: I see no mention of a ban on semiautomatic pistols in the Heller ruling.
This engaging history overturns the conventional wisdom about the Second Amendment–showing that the right to bear arms was not about protecting liberty but about preserving slavery.
Even if it wasn’t about protecting slavery, it was definitely not about protecting liberty. The Second’s role in protecting liberty is hugely overrated — there really aren’t very many individual constitutional rights that CAN be protected by the use of a gun, even a fully-automatic.
Also, all this talk about states being worried about Federal infringement wasn’t about individual liberty either; it was about protecting STATES’ power. And state governments have RARELY been on the side of upholding individual rights under the US Constitution. Their resistance to “Federal overreach” has almost always been reactionary resistance to Federal efforts to uphold individual freedoms.
SC
Well, on that, basically everyone of the founder’s era disagrees with you vehemently.
Also, here’s the language I was looking for. You basically claimed that only the experts have access to the necessary background knowledge to allow them to act as cereal box decoder rings, which allows them to find out what they really mean when they’re speaking in code. How convenient for you. Makes it basically impossible to falsify.
Here’s the flip side. I too can play at quoting randomly googled peer reviewed papers that happen to support my position.
https://www.law.georgetown.edu/public-policy-journal/in-print/volume-20-issue-2-summer-2022-2/the-second-amendment-was-adopted-to-protect-liberty-not-slavery-a-reply-to-professors-bogus-and-anderson/
You have to understand. The real worry in white people’s minds was, rational or otherwise, not slave revolts. The real worry was that England might invade again, or maybe the new federal government would become tyrannical like England, or something like that. Their real worry was concerning a very important and very recent event which was just on their mind, namely the War Of Independence from England, and their desire to avoid a tyrannical federal government that might lead to the same kind of war. Their worry was about a federal standing army that the federal government could use to oppress them in conjunction with disarming the State militias. That’s what they spend most of their time talking about in the ratification debates.
You’re and the militia was more important in reality to protecting their way of life by oppressing slaves than by preventing a tyrannical federal government, but no one ever said that the framers were perfectly rational and informed.
Above, StevoR congratulated me for use of the word “paranoid”, and I agree with that sentiment. They were paranoid – irrationally worried about a tyrannical federal government similar to England when the real danger to the whites in the Southern states would come from the mass of slaves in conjunction with the Northern states working to abolish slavery. They were irrationally afraid of a national government, and they were not sufficiently afraid of the difference in policy between the States regarding slavery. They thought they came to an acceptable compromise with the other States regarding slavery, but the new federal government was something as of yet unknown, which might at any moment magically transform into the second King Of England. And so they were irrationally worried about the danger of that government and of standing armies. That is why the second amendment was passed – to neuter the power of the federal government, just like the other amendments of the bill of rights (all 1 to 10).
You’re approaching this from your modern sensibilities and modern knowledge. You can’t do that. You have to approach this from their sensibilities and their knowledge, in order to determine what they actually believed. Were they irrationally paranoid of the increased power of the new federal government turning the new president and congress into the new King Of England and English parliament? Yes. Yes they were. They were nowhere near as worried about managing slaves because they had come to an agreement with their fellow States to continue to allow slavery. The fellow States they knew. They could be trusted. By contrast, this new federal government was unknown, something entirely new and different, a monster that could transform at any time into a tyrannical oppressive regime. I’m not guessing or inferring. This is actually what they wrote.
What? Again: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”
I can’t read your mind. What are you trying to say? That quoted text is talking about a handgun ban. The quoted text also declares with the power of the court that the handgun ban shall end. You’re obviously hung up on some irrelevant technical pedantry – I just don’t know what. Is it that the opinion is missing the word “semiautomatic”? Is it “pistol” vs “handgun”? Is it “ban” vs “ban on handgun possession in the home” – aka it’s not a ban because they might still allow you to have a handgun permanently stored in a certified shooting range? I really don’t know what kind of sophistry you’re doing.
Yea. No contest.
In the last 150 years since the Civil War and Reconstruction Era? Sure. Totally agreed. However, before that, I think that’s wrong. When the federal constitution and bill of rights were written, I think what you wrote is wrong.
Do I really have to read every new book by Dembski from cover to cover before I can safely conclude that it’s full of shit? I should hope not.
I admit I would be on better ground reading the whole book(s) that you cite, but I’ve gotten enough of a taste to see what it’s doing to be marginally confident that I know the punchline. It seems pretty apparent that neither of them rely on any written testimony whatsoever from the actors themselves about their beliefs, except for some written testimony which they interpret through their cereal box decoder rings. Mostly eschewing written testimony from the actors, these two book authors primarily infer their beliefs based on a partial set of their actions and circumstances through the lens of modernity and their own prejudices. I think these descriptions of the contents of the book are correct, but I would have to read more to acquire a decent degree of certainty. If I’m right about that, then I can dismiss the book(s) as conspiracy theories.
I can already see what appears to be an unbridgeable gap when I said that free black persons circa 1790 were denied many civil rights, and gun rights was just one of many civil rights that they were denied. I would hope we could bridge that gap through more discussion, but you don’t seem interested. I’m still flabbergasted and utterly confused why that should be so objectionable.
Was this before or after the Civil War?
Before. I just said that the slave owners were irrational for trusting the abolitionist and abolitionist-leaning Northern states but fearing the Federal government because the real danger to slave owners would come from the other States and their views on slavery and not from a federal government president turning into the next King George or whatever.
Thanks John.
Let’s see how that’s going…
Uh.
I’ve presented here two recent books (not papers), neither of which was “randomly googled.” One is historian Carol Anderson’s 2021 The Second, which I knew from the Guardian article I linked to above; and the other is legal scholar Carl T. Bogus’s 2023 (from last month!) Madison’s Militia, which I happened upon last night while looking into something else. They’re both works of history drawing from very standard historical evidence – not only the minutes of a few official proceedings, but officials’ writings and speeches and responses to current events, social and political relationships and networks, property records, newspaper articles, private letters, related policy texts, etc. While the Bogus book builds on his earlier article sketching out his argument, both books are part of a growing historiography situating these people and events in local, national, and global systems and hierarchies of oppression and exploitation, particularly (but by no mean only) related to race.
Given how much this work challenges the pre-existing narratives (the Bogus book hits right at the heart of the one you’ve been pushing here), I’m actually surprised it hasn’t received more vicious criticism. In any event, you did self-admittedly randomly google some pushback: one vague and superficial NYT review of Anderson’s book which itself cites a 1998 book that made an argument the reviewer acknowledges Anderson addressed but thinks she should have addressed more or something; and a screed by a libertarian thinktank bro in 2022, so prior to the publication of Bogus’s 300-page book filled, like Anderson’s, with evidence for his thesis.
Not just better ground, but different ground, I would expect. Well, not of you.
Not only are you wrong about it, it’s an absurd claim. These are multi-hundred-page books with extensive quotations and close textual readings of numerous documents and speeches. (Again, I would encourage people to read the samples available to get a sense – albeit a limited one because of the brevity and missing pages – of the sorts of evidence they adduce.) That they also situate these words within their historical context doesn’t detract from the textual analysis – it’s necessary to understand their meaning and people’s motives. As usual, I don’t know what’s behind this willful ignorance and denial – sloppy thinking or reading, a lack of understanding of historical writing, an attachment to a specific narrative or political framework,…
The real worry in white people’s minds was, rational or otherwise, not slave revolts.
Bullshit. They all knew slave revolts had happened very recently, and could happen again, anywhere there were large concentrations of slaves.
The real worry was that England might invade again…
That was A real worry, not the only one.
Their real worry was concerning a very important and very recent event which was just on their mind, namely the War Of Independence from England…
Slave revolts were also very recent events that were on their minds. How could they NOT be?
Their worry was about a federal standing army that the federal government could use to oppress them…
“Their worry” was that the new national government that had just been created would expand its powers at the expense of reactionary states, which was exactly what the new national government was created to do. Those were anti-federalists who had lost the argument, still trying to make sure the new progressive national government wasn’t allowed to work. Just as such reactionaries have ALWAYS done from then to now.
Also, the paragraph you just quoted from Heller does not mention a ban on semiautomatic handguns. The whole fucking ruling was about a law requiring (already legal and licensed) handguns to be kept inoperable at home. Did you even read the paragraph you just quoted?
Yep. I wanted to avoid the connotation of libertarian.
I notice you say you wanted to avoid the “connotation” — but not the ideology. Changing your name to “avoid the connotation” is an admission that you know the ideology is shameful.
Given how much this work challenges the pre-existing narratives (the Bogus book hits right at the heart of the one you’ve been pushing here), I’m actually surprised it hasn’t received more vicious criticism.
Two things. First, that work may challenge the old-school libertarian narrative, but it’s not that radically different from the more sensible standard narrative taught by postwar-FDR-liberals like the teachers and textbooks many of us learned from; which tended to account for both early history, the run-up to the Civil War, and recent history.
And second, the reactionaries may have figured the book was obviously right, and based on lots of documented events, so maybe it was best to ignore it, instead of drawing more attention to something that most people would see as true, plausible, and in line with what we’ve already learned.
“Gun rights” are not civil rights. Guns are weapons. There’s no civil right to weapons possession. At best, it would be a sort of ancillary “right” for specific people in specific circumstances related to real rights to be free of oppression. (Needless to say, this didn’t apply to rich white slave-owning men in the US in the 18th century.)
No such “right” is recognized in the French Declaration (which does include a right to safety).
Nor will you find this so-called right in the Universal Declaration of Human Rights (which does include the right to be recognized as equal persons before the law and the right not to be held in slavery or servitude).
Indeed, “Only 3 countries in the world protect the right to bear arms in their constitutions: the US, Mexico, and Guatemala” (Business Insider link):
The fellow States they knew. They could be trusted.
Are you kidding? The states DIDN’T and COULDN’T trust each other — that was one of the reasons they needed a stronger national government, to keep the states in some form of relative harmony.
By contrast, this new federal government was unknown, something entirely new and different, a monster that could transform at any time into a tyrannical oppressive regime. I’m not guessing or inferring. This is actually what they wrote.
Yes, that was how they saw a national government that might bring any progressive change that would interfere with the states’, churches’ or businesses’ entrenched interests.
SC still hasn’t answered if they think this is relevant to the judicial interpretation today of the second amendment.
Raging Bee needs to actually read Heller. There was a handgun ban which was struck down in addition to a rule requiring guns to be kept disassembled even at home which was also struck down.
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SC,
In the context of the American legal tradition, and the earlier historical English tradition, which is what this is all about, gun rights are civil rights. It is not remarkable that free black people circa 1800 were denied one particular civil right because they were denied many other civil rights. I fail to see how we can draw any meaningful conclusion about the scope and reach of any of the civil rights for citizens at large based on the mere fact that free black people circa 1800 were denied a particular civil right. You still haven’t given a proper answer to this either besides saying “look how he’s being dishonest!” (paraphrase) or some such.
Actually, this discussion is not merely about legal and historical “traditions;” it’s about the practical reality in which these traditions are set. Gun rights may be “civil rights” “in the context of the American legal tradition, and the earlier historical English tradition;” but in practical terms, they’re really not, at least not at the same level, and the gun lobby are pretending they are in order to pretend they’re some necessary part of the Civil Rights Movement, and that their cause is just as deeply important and right as the cause of racial equality, desegregation, nondiscrimination, etc.
Also, re: Heller, you’re the one who needs to read what you’re quoting before you quote it — there’s no “handgun ban” here, only a requirement to keep (legal) guns inoperable in the home (that’s what was struck down, not any ban on anything), and an order for DC to allow the plaintiff to register his (legal) gun.
It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited.
So it’s legal to carry a REGISTERED firearm, and the Court ordered that plaintiff be allowed to register his firearm.
I must have lost it in one of your wots. Well, I’ll first ask what considerations you think are relevant to judicial interpretation of the 2nd Amendment today?
Nope. In any case, I was responding to your characterization of “gun rights” as civil rights, which you’ve done consistently so I assume that reflects your own view. Do you think possessing a firearm is a basic civil right like those recognized in other amendments and rights declarations? If so, why?
And again I quote:
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited.
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.
In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment,
Why not? What do you mean “practical terms”? According to what you feel is desirable? According to the current scope of restrictions? According to the scope of what restrictions you would consider desirable? According to the restrictions you think were in place circa 1790? I don’t know what you’re trying to say.
If you asked people in circa 1790, the overwhelming response would be that is an inalienable right that ought not be infringed by any government, and moreover that it is one of the most important inalienable individual rights, on the same level with freedom of speech and voting.
…
I’m not sure what you’re trying to ask.
Do I think it is a civil right? That’s an ambiguous question. Rights in general are social constructs. They don’t exist like my chair does. Asking if a social construct exists is a trickier question. This is a very loaded and nuanced question. Clearly this social construct, this “civil right”, exists according to some people’s interpretations and standards, and not according to other people’s interpretations and standards. Let me try answering some different but related questions.
Do I think it should be a civil right? Meh. Undecided. I used to think yes, but now I think there are decent arguments on both sides, and I’m not sure. I think I might even be leaning “no”.
Do I think that it is a civil right according to the controlling laws in America, i.e. the text of the US federal constitution plus its surrounding historical context? Yes.
Do I think that it is a civil right according to the preceding legal contexts (including American common law, earlier American State constitutions and charters, earlier English common law, and the English bill of rights of 1689)? Yes. (I know that the England and the United Kingdom have since changed this law.)
Unfortunately, I think it covers basically all semiauto guns, as well as other common weapons that are not especially dangerous, such as knives and swords. It also requires that people can “bear arms”, meaning each jurisdiction permit at least open carry or concealed carry (or both) without licensing or with “shall-issue” licensing with constitutional due process with exceptions being limited to categories such as “guilty of a violent felony offense”, “indicted for a violent felony offense (as part of standard bail conditions basically)”, and “those who have not yet completed the government mandated militia training course(s)”.
I believe that universal background checks for all gun owners, mandatory training and licensing regimes for all gun owners, waiting periods for gun purchases, are all clearly constitutional, and further I believe that we ought to pursue such policy immediately.
I also think that we can make a good argument that it would be constitutional to require guns stored in the home or in a business or public place must be stored in such a way that minors cannot use them. In my world, that would mean kept in a locked safe or locked room where the minor does not have access, and the gun may not be anywhere in the home except when the adult is in personal physical possession of the gun. In other words, letting a minor get access to a gun in the home ought to be a serious strict-liability negligence crime which should be vigorously enforced in order to make people store their guns safely and keep them out of the hands of children. I imagine a lot of gun owners with children in the home would complain, and I don’t care about their complaints.
I am sympathetic to the view of gun owners that having a registry of individual guns is extremely problematic, and I don’t (yet) support that. Such a policy is probably constitutional, but it’s also extremely problematic ethically while the right exists. The spirit of the constitution should probably forbid such a thing as being too dangerous to the right. I think lots of precedent has chipped away at such a strong ethical standard for protecting other rights, and so if we go with that new weakened standard for civil rights in general, it’s probably constitutional to allow a registry of individual guns and who owns them.
Based on historical regulations circa 1790, good arguments can be made that destructive devices, such as grenades, if they are legal for civilian possession, can be regulated so that they may not be possessed inside city limits. I am not saying that personal possession of such things ought to be allowed. I also note that under current federal law AFAIK, possession of such things is allowed under an extremely strict and pretty expensive licensing regime (NRA “tax stamp”), and this appears to be sufficient to prevent improper uses of such devices, and I don’t think these current regulations are unconstitutional (except perhaps the excessively high amount to purchase the license, with the same objections that apply to a poll tax).
Banning all machine guns made after 19 May 1986 is pretty problematic. I also worry about the efficacy of the following matter: In the last decade or two, the number of crimes committed with machine guns is extremely small, and the number of crimes committed with legally owned machine guns is basically zero. Is this because of the extremely high cost to purchase a weapon because the supply is restricted by law to only weapons made before 19 May 1986? Would we have a bigger machine gun problem if we got rid of that restriction and allowed the sale of new machine guns made after that date (but only to people who have the ATF “tax stamp”)? Maybe we ought to consider keeping the high cost of the tax stamp. However, that raises the same constitutional issues of a poll tax – it seems pretty unethical and unconstitutional to restrict a right by imposing an arbitrary high money fee to exercise that right. Sigh.
This is why I’m really into stringent training courses because we can impose a heavy burden on people who want to own guns this way without the same constitutional concerns. I don’t see the same ethical concerns with the argument that congress can decide that it’s in the best interests of the nation to train the militia to a higher standards in order to effect better military readiness and specifically by having thorough training to prevent abuse of firearms by the militia in everyday life. That to me is a perfectly sensible argument which is well supported by the powers of congress which are not abridged by the second amendment.
It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited.
So it’s not an actual ban, it’s a registration requirement, coupled with a prohibition on registration. And the court’s remedy was NOT to overturn the “ban,” it was to require DC to allow the owner to register his gun. So no ban was struck down.
That’s the answer to the question I was asking. (The correct answer is no. :))
I apologize if my question was unclear. I was asking not about what specific policies you think are or aren’t constitutional, but about the sorts of general factors or criteria on which you base those evaluations. There are some hints in your previous answers, but I’m still unclear on the “considerations you think are relevant to judicial interpretation of the 2nd Amendment today.”
You’re welcome to continue playing semantic word games, but it serves no legitimate purpose. Are you trying to confuse the audience or just piss me off? It was a handgun ban. It was struck down. The court opinion uses the exact language “ban on handguns” and “ban the possession of handguns”. That the law used a two-step process instead of a one step process to make a handgun ban is not relevant to whether it can be accurately called a handgun ban.
By comparison, consider the recent thing in India where they revoked citizenship from many / most Muslims. Are you going to apply this sane inane critique to my description here because India used a similarly transparent two-step process to try to obfuscate the clear intent and effect of the law(s)?
Sorry for length.
I’m not sure. Possibly something like this. The original meaning is something like “any weapon, offensive or defensive, and any implement of war”. Then, immediately forbid biological, chemical, and nuclear by judicial fiat (because clearly there would have been an amendment to do it otherwise). Then heavily regulate the rest with background checks and licensing schemes for ownership and licensing schemes for carry. Possibly ban open-carry entirely and permit concealed-carry only with the proper license.
To defend this seemingly absurd position:
It’s not really scary to allow private persons to own tanks, fighter jets, intercontinential missiles, etc., because of how ludicrously expensive they are. Your standard young angry white male incel school-shooter, and their parents, can’t possibly afford one. It’s mostly a moot point whether these are allowed or not because, while scary, they are so incredibly expensive that they would never be used for petty crime. I’d sooner worry about private militaries under corporations ala Shadowrun than I would worry about some rando. (And we should be more worried about the powers of private military contractors and private military corporations aka PMCs.)
In my mind, of the remainder, the items of most concern are high explosives, equipment which can be worn and carried by an individual typical soldier, and heavier machine guns that typically require multiple people to field (e.g. HMGs).
Easy availability of high explosives scares the shit out of me. Also remember that the founders had no conception of high explosives – they wouldn’t be invented until decades later. Is a truck bomb a legitimate weapon of war, or can it be used only against massed non-combatant targets? Unfortunately, recent experience in Iraq and Afghanistan shows that they vital and indispensable tools of war when used by insurgents against more powerful foes. That leaves me in a very difficult position. Also, we can’t completely ban this stuff because there are legitimate non-combat uses for high explosives; also, fertilizer is (somewhat) easily convertible to high explosives, and there’s no way we can ban fertilizer. The best that we can seemingly hope for is to continue the current licensing scheme, regulatory scheme, shipment monitoring scheme that we have in place, argue that it’s constitutional, and call it a day. In particular, if you want a license for having big bombs and such, good luck having enough money and jumping through all of the red tape, such as the cost of building a bunker in the middle of nowhere that fulfills the building codes for storing high explosives, and the costs of having the mandatory heavily armed security guards there 24-7 who have the same stringent background checks. This is mostly academic anyway, because I don’t really see any gun advocates who care about having hundreds of pounds of explosives for no good reason.
For machine guns, grenades, and other personal “dangerous devices”, the current ATF regulations seem good enough, and I don’t see many gun nuts arguing that current ATF policy is unconstitutional so long as the same “shall-issue” with due-process policies are maintained. (There’s still my worry that without the ban on sale of machine guns made after 1986, and without the expensive poll-tax-like fee for the ATF “tax stamp” license, then we would see more abuse of these things, but I’m really hoping that we can offset that by requiring many days of training per year to get and keep the ATF license.)
That leaves semiauto guns. I especially don’t see how we can ban these and uphold the legitimate purpose of self defense and/or uphold the legitimate purpose of potentiality of armed insurrection. But we could be much more draconian with our licensing schemes, similar to the current ATF process for machine guns, and we could impose draconian training schemes, like a week per year of militia training.
As long as semiauto guns are protected, there’s no point about arguing about whether lesser weapons are protected such as knives and sticks, including staffs, walking canes, nunchunks, etc. Just say they’re protected. There’s no good argument otherwise, and it doesn’t matter for public safety when semiauto guns are protected.
PS: Most of what I wrote is moot. AFAICT, the gun nuts are just fighting for semiauto guns. I really think there’s the possibility of a grand compromise where we throw them the bone of protection for semiauto guns in exchange for mandatory gun owner licensing and training (and background checks, and other stuff like waiting periods for first gun purchase). Not all gun nuts would agree, but I think enough would, and I think this could be really effective at preventing gun violence based on our experience with the ATF regulations for machine guns and such.
The grand compromise would (might?) require admitting that the second amendment is a right of individual persons out of active military / militia duty, and I don’t know if our side, the left, is willing to do that.
“the gun nuts”
Gerrard, you are most evidently one of them.
A fundamentalist one, too — this business of carrying a firearm supposedly being a civil right is a giveaway. It’s like Holy Writ to you.
To me, a gun nut is someone who owns guns, and argues that we should not repeal the second amendment. I fail on both counts unless you think I’m lying. Do you think I’m lying?
Gun nuts come in different flavours.
To me, someone who advocates for the general populace to be routinely armed with deadly weapons on the basis that it’s a civil right qualifies.
PS https://www.ussc.edu.au/analysis/by-the-numbers-stark-contrast-in-australian-us-gun-deaths
Ah, the benefits of such a civil right!
I didn’t do that. You’re missing the nuance. I said that as long as that’s the law, judges should uphold that law, rather than violate their oaths as judges and damage the rule of law.
I think you missed the part where I said that it should probably be repealed.
Again:
H.L. Mencken:
The trouble with defending rule of law is that one spends most of one’s time defending the unfortunate judicial application of bad laws.
From “A Man For All Seasons”:
No, I get you 100%.
It should probably be repealed, but as long as that’s the law, judges should uphold that law.
Thus the situation that now exists.
Specifically, you are for the status quo.
I hardly need to tell you what my own estimate of the likelihood of any significant gun laws reform in the foreseeable future in the USA.
If yours is in any way similar, then you are being perverse.
If not, well, yay for you, O hopeful one.
(Interestingly, we manage without “stand your ground” laws over here, in the fabled land of Oz)
Saying that the status quo should be changed is not being for the status quo.
I simply reject some means as unacceptable (e.g. having worse outcomes). You right now are being the poster child for “the ends justify the means”.
I do not think that we are likely to win many converts by lying to their faces, nor by advocating for breaking the rule of law. Yes, I’m a principled stubborn fool I guess for insisting on honesty and rule of law.
There’s still a miscommunication here.
Here’s a small selection of quotes from you above:
So if you were to find that your earlier suggestions about the context of and motives behind the 2nd Amendment were incorrect, that the more noble claimed motives don’t hold up to scrutiny, that they knew militias sucked militarily, that it was included as a bribe to Southern slaveholders seeking to maintain white power and slavery, that it did fulfill that purpose in practice then and subsequently, that it hasn’t served to defend against tyranny or invasion or to protect vulnerable minority groups, that (unlike other claimed rights) it was adopted almost nowhere else, that of the few other countries where it was adopted most have repealed or stringently limited it, that it’s led to untold deaths and suffering,…would some or any of this affect your views on how it should be interpreted or whether it should be repealed?
@244.GerrardOfTitanServer : “I didn’t do that. You’re missing the nuance. I said that as long as that’s the law, judges should uphold that law, rather than violate their oaths as judges and damage the rule of law.”
So even bad laws that are actively harmful and arguably evil and just bad this deas that hurt people for no good reasons should be enforced simply because they are laws?
Is that a fair summary of your view here GOTS?
Oh, come on!
You’re basically saying “the system must be changed, but it must be changed via the system”.
More directly, you’re (as you see it) saying that the status quo should be changed (according to the status quo rules) but that until then, it should remain as is.
(That last clause is the omphalos)
Obviously, the likelihood of any change given the current situation is well beyond the realm of plausible outcomes, at least for the foreseeable future.
The irony within your supposed contrasting stances clearly eludes you.
So does my basic thesis: you already have the means — fucking changing the fucking law! — but it will not be done as things stand. But the means can’t be changed, in your estimation, because of the rule of law.
Simplistic thinking.
You do not break the rule of law when you change the law, nor do you break it when you change the lawful means of interpreting and applying the law.
The bloody Supreme Court has been doing that all along already, in case you hadn’t noticed. Just not in a way that’s conducive to firearms regulation amongst the general populace.
Your humble bragging needs work.
Boils down to me saying “just change the fucking law already!” and you saying “but what about the rule of law, then?”. Bloody silly.
—
PS
Yes, I can see how that bedevils you. I mean, you’ve done just that here.
Has it occurred to you that perhaps your idea of what constitutes rule of law might be improved, such that the proportion of one’s time defending the unfortunate judicial application of bad laws could be lessened?
Anyway. The point here is that the rule of law is not the same as enshrining the right for the population at large to carry deadly weapons at will. Plenty of other places in the world have rule of law while still regulating guns.
GOTS troll
I fail on both counts unless you think I’m lying. Do you think I’m lying?
Yes, you consistently lie about everything.
I think you are a bot, since you’ve never contributed anything but right-wing propaganda.
Reset!
Clearly yes. That’s why I believe it probably should be repealed. Just like you (except you have more confidence).
Author’s intent that’s at least written down or recorded has some role in jurisprudence. Very little, but at least some. However, when you talk about author’s intent which was kept hidden from the general public and which was never clearly written down or clearly communicated to anyone else in a verifiable way – that has no place in correct jurisprudence. The law should be applied based on the original, plain text, public meaning, and not based on some unwritten secret intent from the authors. We have rule of law, and not rule of author’s intent.
I do not yet accept that the second amendment was a bribe to the South. This makes no sense. A bribe for what? They already ratified the Constitution 3 years earlier, and many Southern States did so without any explicit demands for a bill of rights. By contrast, more Northern States made demands of a bill of rights as part of their official ratification of the US constitution. I still think this particular claim is pure fantasy. And even if it was true, it is still part of the umbrella of “author’s secret intent which we infer in spite of no written explicit written testimonies from the actors that confirm it” – and again that sort of “evidence” has no place in correct jurisprudence.
That the law is ineffective at its openly stated purpose and the justification clause in the text itself is also not a reason for a judge to not protect the right in the text. Again, see the Volokh paper for better arguments on this.
Why should I care what other countries have done afterwards when doing jurisprudence on the US constitution, especially when basically all of the actions that you cite (other free democratic countries didn’t adopt gun rights) happened after the ratification of the US constitution and bill of rights? You’ve completely lost me. Further, in the historical context, cultural and legal, of the US constitution and bill of rights, it is not an outlier at all.
Led to untold deaths and suffering. To a point. That’s why I am in favor of judicial fiat to prevent private ownership of biological chemical, and nuclear weapons. However, gun deaths are not that big in the grand scheme of things in America. I mean, there’s a lot, and we should do something about it, but it doesn’t threaten the stability of our society, and it doesn’t even rank in the top 10 causes of death. More people die in car collisions per year than from guns, even if you include gun suicides (which always annoys me when they silently include gun suicides in the stats and make it appear like they’re talking about gun homicides). The point of putting a civil right in the constitution is precisely so that a mere act of the legislature and a mere act of the judiciary cannot overturn it based on public good arguments like this.
Imagine that I came to you and complained that the killer of my child went free because of the exclusionary rule at court because of a Miranda warning violation, or an improper search without a warrant? Imagine I say that my child died in a way that was preventable if only the police could have acted on their hunch and searched that place without probable cause. The fourth and fifth amendments say that these sorts of arguments cannot be used by mere acts of the legislature or courts to overturn these rights. That’s the point.
Now maybe you think that the fourth and fifth amendment protections that I named have real benefits in actuality that outweigh the negatives, but the second amendment’s benefits do not outweigh its negatives, and you may be right. I’ve already granted that you’re probably right. But that is not an argument which is allowed in court to overturn a constitutional protection of a civil right. That’s only an argument for amending the constitution. And I firmly believe that because lying and violating the rule of law will lead to far worse outcomes than the tragic gun deaths that happen every year.
FWIW. My own view of what should be done with bad laws is that no they should NOT be enforced. They should be challenged, criticised and removed. They should be repealed and better laws put in place where needed or no law where there’s no need for laws. This applies to alllevesl from municipal regulatuiosn through to the Constitiutions of nations.
Also systems of laws that keep producing bad laws and bad rulings with bad justices also need to be challenged, reformed, changed even completely rejected and replaced with better ones that are more fair, ethical, reasonable and fit for purppose. Ba dlaws should go. Bad Justices should go and if sufficiently bad their rulings should ruled invalid. (Cough, Clarence Thomas, Brett Kavanaugh, Amy Comey Barrett.)
If it was my choice to make the entire SCOTUS from the moment Trump imposed Kavanaugh upon it would have its rulings ruled null and void. Bad precedents based on outdated mindsets would hold no water and not count and the system would constantly be reviewed to ensure it was working ethically and honestly.
This includes even the entire idea of having an adverserial legal system where Justices decide who “wins” a “case” based on whose lawyer is better (usually more expensive) rather than having the truth be determined using all available evidence weighed appropriately and having a decision that best reflects the truth of what happened and what the most ethical and appropriate outcome therefore is.
This seems pretty basic and reasonable to me but somehow is seen as absolutely radical and silly and somehow a bad set of ideas by some others who seem to think that because something has been written into law once; decided once by one judge in one set of circumstances that’s that for ever and ever argh-men!
Wanna get on a discord call so I can show you my ID, my tax returns, my bank statements? I’m no bot. And I’m no liar.
https://www.ussc.edu.au/analysis/by-the-numbers-stark-contrast-in-australian-us-gun-deaths
Oh, this is morbid.
Ah, that’s alright then.
Motor vehicle accident deaths, are they fewer or more than gun deaths?
Food poisoning deaths, what about those?
Electrocutions?
(Weird how some other stuff is regulated to, um, prevent injurious consequences, unlike guns)
I think I said something nearly verbatim above, yes.
But only up until a point. Clearly I feel no compunction to obey laws of a grossly unjust and tyrannical regime. There, resistance, including potentially armed resistance, is justified. I don’t think the US is anywhere close to this point.
My own personal belief is to split the difference on this one. Sometimes precedent should be upheld, and sometimes not. Of course, mere disagreement with the law should basically never be a reason for a judge to overturn precedent.
I would also split the difference here too. You should be able to hire a lawyer to help you argue your case. However, I wish that the judge (or maybe some other neutral party, maybe the jury) could and would be much more active particapant in the process, as opposed to having to silently listen to both adversarial parties argue. I’ve never been on a jury, but it would annoy me so much if I was, because I couldn’t interrupt them and ask a question for clarification or anything like that.
No. It’s not forever and ever. Convince enough people to change it, and it will be changed. The real problem is that close to a majority of people in America, maybe more, really like having gun rights.
…
Yes.
Yes. Also, what you wrote is trivially true, tautological (ignoring the parenthetical). Of course the status quo must remain the same until it is changed. You’re not actually saying anything here at all (except for the parenthetical “according to the status quo rules”).
I think this is false. Banning guns? Yea, that’s not happening anytime soon. Adding training and licensing? I think that could happen. We already have it in place for machine guns via the ATF. There’s no legal reason it can’t be done at the national level. Democrats just had control of congress and the presidency, and they could have done it too by simple majority vote in congress, but they didn’t. Why? I don’t know. Could it have been a stubborn refusal because doing so would legitimize gun rights as a constitutionally protected right under the second? Maybe. Just a wild unsupported guess.
You do break the law when you overturn a constitutional protection without a constitutional amendment.
And I will complain every time that they do it. Two wrongs does not make a right.
No.
Correction: Why should I care from the perspective of a judge using correct jurisprudence?
Why would I willingly go to Discord to listen to more right wing chatbot ‘reasoning’? The bullshit is knee deep right here, and as usual, it’s failed to make a single relevant point at great length.
Talk about missing the memo. In the same post, same paragraph even, I compared it to deaths from car collisions. Gun deaths are less (in the context of America). I have also said it many, many times in this thread that I want guns to be more heavily regulated, and the second amendment would not stop many sorts of regulations, and many times in this thread I described very specifically many regulations which I want and which would not be violations of the second amendment, and many times in this thread I explained how I am relying on the constitutionally of regulation of driving a car on a public road as legal justification for the constitutionality of similar regulations of gun ownership and carrying guns.
At this point, for your extreme negligence in reading what I have written, fuck you again, and die in a fire.
I am not a bot, and I am not being paid by anyone, and I could prove it. Also, I am not making right-wing points. Defending the rule of law is not a right-wing talking point, and if you think it is, then you have some serious problems.
StevoR,
Also, I think jury nullification of bad laws is acceptable at times. I think jury nullification is far less damaging to a law compared to judicial nullification. I can imagine several sorts of cases for which if I was on a jury, I would nullify.
Shorter GOTS : A fictional Thomas More* said it; I believe it, that settles it?
What would I hide from given the Devil isn’t real but a mythological supernatural fiction?
Mans (sic) laws = men can change and improve them to better ones whic h is what I’m arguing for – better laws, better legal system, more review and scrutiny of it to keep improving it. Your problem with that is?
Laws aren’t trees. I’d rather stand in a landscape full of trees than one full of laws like say the anti-“woke” ones being imposed in Florida by an ideologue who is a horrid bigot.
What “wind” exactly? Clearly this is a metaphor, again in this case for a supernatural semi-diety but in reality, well I’m not actually an anarchist & do think some laws are needed to organise society but again see my #252 above here. Those laws should always be scrutinised, reviewed and where needed changed and so too should be those who impose, enforce and decide them.
The “devil” – or rather in reality the worst elements of our society – already uses the Law to their benefit and thus gets away with doing what should be illegal. Exhibit A : Rittenhouse, B Trump, C Clarence Thomas. D Pell E Christian Porter ad nauseam. What do you do when the Devil is the Judge and the cop and has the system of law rigged hin his favour and against those who seek actual justice for real crimes? When the metaphorical “devil” is the very system of law itself?
I say you change that system and replace it with a better one. GOTS says (I gather) “Oh its the law and by mere “virtue” of it being the law it must always be respected and upheld no matter how wring it is which I think is an unethical surrender of ethical judgement and contemptible position to take.
You know that’s a choice here right?
I don’t think there’s any obligation to defend bad laws or bad judicial decisions – even if and when you want to defend the system broadly. I don’t think you are obliged to quote and respect scum like Scalia either. Scum not scoundrel.
I think you could at least theoretically take the position that okay in general the Rule of Law is worth defending yet certain decisions and certain Justices are not and that there are exceptions and flaws and improvements to laws and courts that can & should be made whilst the broader system is still largely defendable. As noted (#252) that isn’t my personal position but I don’t know why it cannot be yours, GOTS.
.* A fictional character based on a historical catholic religious extremist. Ancestor worship made even sadder than usual?
If I did that, on what ethical basis would I have a leg to stand on to complain about a Christian theocrat putting a display of the Ten Commandments in every school? What’s the argument that I’m going to use? That I’m right about the public good and he’s wrong? Clearly that is not going to be sufficient to convince them or to establish a workable set of guidelines for judges in government when most of the country agrees with them and not me. You can’t just take out one civil right by extreme judicial fiat and have the public accept it unless you are willing to have the judges take out other rights by the same process. You can’t just have a little bit of judicial fiat to overturn explicitly written constitutional protections. It’s all or nothing.
One of the major benefits of modern western “democracy” governments is to prevent democracy. The constitution is there to protect me from the majority of Christians when they decide to temporarily set aside their differences to attack religious minorities and atheists. That depends entirely on ensuring that a large majority of the people understand that the constitution which protects me today from their attacks will tomorrow protect them from my attacks (or more likely the attacks of a third constituency in the country).
I defend gun rights to defend rule of law to defend myself from the Christian theocrat who would imprison my entire family if they could for apostasy, atheism, being gay, trans, divorced, having abortions, having sex outside of marriage, etc etc.
You’re just incredibly short-sighted and unsophisticated in your analysis.
Since what I wrote was a synopsis of your claims, and is trivially true and tautological, it follows that if I was not actually saying anything at all, neither were you.
At the very least, it should reassure you that (as I wrote) I quite get your stance.
The converse, however, is not true.
(Why do you piss into the wind?)
Well, that should sure make the USA’s grotesque gun death and injuries figures become comparable to those of other developed economies. Surely.
Proportionally to the degree of change, presumably.
(yay you!)
Perhaps it’s easier for me to see, from afar.
Democrats are USAnians, too. Gun culture stuff.
They can only do what the electorate allows them to do.
(It’s not like I have no basis for my determination about possible outcomes in the foreseeable future, and such tinkerings as you have advocated just now won’t have much effect)
Well, there’s your problem.
I thought @251 you were writing in the first person in your response to SC, in keeping with the entirety of that retort. But sure, why would a judge using correct jurisprudence care about the exculpation of malfeasants and the victimisation of innocents due to using such correct jurisprudence?
Mind you, it’s not quite as absolute as that, is it?
Take your Supreme Court.
Decisions are always atomic; but the jurisprudence employed has constituent parts — the judges. There’s such a thing as a split decision, no? Dissent, too.
How could this be, were jurisprudential interpretation monolithic and invariable?
Hm. Either at least some judge(s) decision is subjective, or the law is ambiguous, or at least some judges are incompetent some of the time.
In passing, it has not escaped my attention that in the USA, Supreme Court judges are categorised by political leaning. Presidents fight over appointing their nominees.
(See some of what I mean when using the system to fix the system?)
It’s clearly not. Which is why I’m here trying to remind people that our civilization hangs by a delicate thread which is hard to rebuild, and that thread’s name is “rule of law”. Republicans are currently more of a threat than Democrats, but Democrats have their significant problems too.
And no, I don’t see what you mean. Idiots like you never see that burning down the system usually does not result in something better. Usually you get something much worse by burning down the government. You’re like the Republican gun nuts now who fantasize about (violently) overthrowing the government, being confident in your foolish belief that when the government is overthrown, everyone else already agrees with you on what should replace it. In reality, they don’t, and you’re unlikely to get what you want, and likely to get something worse than what was before.
Defending the rule of law is not a right-wing talking point
Defending the guns in a thread about mass murder happening regularly is in fact, nothing but right wing fascist talking points.
G:
You got “burning down the system” from what I wrote?
Apparently not.
Too oblique, this reference to partisan judges and split decisions and dissents.
Let me be plainer: as it stands, the system is rigged.
Gordian knot sorta thing.
When I said I can see no prospect of significant gun reform in the foreseeable future, I meant it.
I didn’t say anything about burning down any systems.
You have a dogmatic and limited idea of what constitutes “rule of law”, and cannot fathom how it could be altered in its instantiation without changing its intended nature.
(map, territory thingy)
—
PS
Fantasies are for other people, mate.
You will hardly find a less ideological person than me.
AFAICT, the gun nuts are just fighting for semiauto guns.
Actually, gun nuts in state leges are working for much more than that: permitless conceal-carry, permitless open-carry, removal of “sensitive area” restrictions so they can carry wherever they damn well want to, “stand your ground” laws that basically amount to licence to shoot anyone who makes you feel less than 100% safe…
I really think there’s the possibility of a grand compromise where we throw them the bone of protection for semiauto guns in exchange for mandatory gun owner licensing and training (and background checks, and other stuff like waiting periods for first gun purchase).
We may be able to get what you want (all of which I agree with) without that bone — but either way, they’ll most likely still oppose all of it, and never accept any compromise, simply because they’re too invested in their anti-liberal, anti-regulation, anti-federalist, unhinged romantic gun-culture to accept anything that looks even remotely like “totalitarian Federal overreach.” Your proposals are not bans on guns or classes of guns, and they’ll have to do a lot of twisting and stretching to claim they violate their favorite (half-)sentence ever (but I’m sure they’ll try anyway); but in their eyes, they’re all still “gun control,” which is evil and commernistic.
Raging Bee
Oh of course. The extreme gun nuts are working overtime. I was referring to the moderate gun nut who makes up a significant portion of the country, whom, if I am to believe the polls, want more gun regulation for safety.
And you’re probably right about the politics of getting anything in place. As we both know, the extreme gun nuts have captured the Republican party, even though a majority of gun nuts are moderate, if we are to believe the polls, in the sense of wanting more gun regulation for safety.
For once, I think I wholeheartedly agree with what you wrote.
Oh. Should I bring it up in unrelated threads then, hijacking them with off-topic conversation? Probably not. So, do you want me to just stay silent? Probably yes. I don’t think that’s an acceptable option.
PS: Let me rant with you instead of against you for once.
The truth of what you say pisses me off so much. Those people piss me off so much. For the most part, I’m suggesting nothing much different than what was done by the founders did in the first place, e.g. the people who wrote the constitution and second amendment. They required, by federal law, that most people (at least most able-bodied adult males between 18 and 44) must show up for something like one whole day of military training once per year (or suffer serious criminal penalties, in this case rather hefty money fine, equivalent to IIRC more than a thousand USD today adjusting against wage inflation). It’s not like this was a surprise – the same policy was called for in the Federalist Papers. In that one Federalist Paper, it says something like (gross paraphrase): “How could the militia become well-regulated e.g. properly trained except by mandatory government training?” and “We should require everyone to at least show up once a year”.
I can sympathize with them if they are against a national gun serial number owner registry, but by the gods, why should they resist their national duty to give military service for this country to improve public safety (by bettering themselves via the training). They’re supposed to be the traditionalists, and this practice of mandatory militia training goes back thousands of years. For contrast, lots of other countries require years of military duty from all of its citizens. They’re supposed to be pro military service too. I’m just suggesting one day to one week per year. Can’t even give that much for your country? Lazy couch bum chicken-hawk. This is a significant part of the true meaning of the second amendment; it is a simultaneous right and duty, and they’re forgoing their duty entirely.
“I’m just suggesting one day to one week per year. Can’t even give that much for your country? Lazy couch bum chicken-hawk.”
vs
“I am a member of the militia, in spite of never received any sort of military training whatsoever. I have never fired a gun. I have never owned a gun. I’m still a member of the militia.”
I’m not the one asking for gun rights without training. Gods you’re an asshole.
I’m really pissed at you now. Do you think I asked to me a member of the militia? Is that what you’re on about? I didn’t ask for it, you dipshit. I didn’t ask for gun rights either. You are one of the few people that I would cheer for when I learn that you die, along with Scalia and Strom Thurmond. You are such a despicable creature.
https://www.gunviolencearchive.org/reports/mass-shooting
https://letmegooglethat.com/?q=Am+I+the+asshole%3F
GOTS:
This sort of denial is why I generally think you’re not worth engaging with. I would say “If you’re not going to read the books, fine, but stop misrepresenting the state of the evidence,” but given your history I don’t see the point. Alas.
So you’re making two entirely separate arguments in this thread, and they’re not consistent.
On the one hand, you’ve plainly said that you think this specific amendment should be repealed. That’s a very strong statement that you don’t see it as a legitimate right comparable to the others enumerated in the Bill of Rights and later amendments. I assume you don’t think the first, fourth, or fifth should be repealed – not just because they’re enumerated in the document but because they’re legitimate rights that serve to protect people from tyranny and oppression in the past and present. But if this one disappeared, no meaningful freedom or protection from tyranny would be lost. So you recognize on some level that the second is distinct and undesirable in contrast to the legitimate rights. As you said, “Do I think it should be a civil right? Meh. Undecided. I used to think yes, but now I think there are decent arguments on both sides, and I’m not sure. I think I might even be leaning ‘no’.”
And your argument is that even with this being the case, it’s there in the document and we can’t ignore it or just declare it void; the damage to our system of law of scrapping it entirely in any manner other than lawful repeal would be far worse than the damage done by the amendment itself. To protect it, despite the fact that it doesn’t uphold a real and useful right, is to preserve the actual, legitimate, and necessary rights since they have the same Constitutional status.
That’s one position. On the other hand, you’ve spent much of the thread suggesting that it actually is a legitimate right like the others enumerated. You’ve insisted at great length that its purpose, as with the other enumerated rights, was to protect people from tyrannical government (and maybe also invasion…or possibly insurrection, LOL):
“What if I got clear quotes from every signer of the us constitution that Americans have gun rights to protect against tyrannical government? Or every member of every state legislature that ratified the bill of rights?”
“The real worry in white people’s minds was, rational or otherwise, not slave revolts. The real worry was that England might invade again, or maybe the new federal government would become tyrannical like England, or something like that.”
“They were paranoid – irrationally worried about a tyrannical federal government similar to England when the real danger to the whites in the Southern states would come from the mass of slaves in conjunction with the Northern states working to abolish slavery.”
You haven’t only argued, wrongly and to the point of denialism, that its intent (rational or irrational) was to protect people from a tyrannical government, but you’ve left the image of it actually serving this function. You’ve often pushed aside all of the weird militia stuff (or resorted to laughably describing it as a “spiritual” entity representing all people) and suggested the right to possess firearms is an individual right like any other. This implies that it should be approached with the same respect we give to the other enumerated civil rights, respect granted not just because they’re enumerated in the document but because they’re valid rights whose recognition protects us from tyrannical rule.
These are two different positions. It’s not a valid right or an amendment worth keeping. It sucks, but it’s in the document and if we’re to get rid of it we have to do it in a proper manner so as not to jeopardize legitimate and necessary rights and the rule of law. –OR- It’s a valid right. It was intended in its conception, like other rights and the Constitution generally, to protect people from tyranny, and it has, like other rights, protected people from tyranny. It should be treated exactly the same as these other rights, not just because it’s enumerated in the document but because it has the same protective value and legitimacy as a civil right as the others do.
Now, I believe its purpose was to uphold tyranny – to enforce a system of slavery that was grotesquely contrary to all human rights and maintain white supremacy (and other illegitimate hierarchies), and that its real-world record is unsurprising in light of this. It’s been horrifyingly effective at its original purpose, which wasn’t to protect people from tyrannical rule.
But for the sake of argument let’s assume that your argument about its original purpose was accurate. You appear to be acknowledging that it hasn’t served this purpose. In fact, you’re fine with its hypothetical repeal, because there isn’t really a right in the text to protect. The reason rights are to be zealously protected is that they’re protective, and this one isn’t. In this case, we should call it a “right” only in the strictest legalistic sense – it’s listed in the Bill of Rights, called a right in some form, and some people at the time saw it as potentially protective against tyranny.
You can do your weird rightwing Constitutional interpretation thing about a narrow historical intent, and I’ll have my opinion about that, but don’t pretend that this is a real right.
We’re back to that slippage. Again, I think the Fourth and Fifth Amendments (and the First, which you’ve also raised) articulate legitimate rights it’s necessary to respect. You can look at the record of their use in the US and the recognition of these rights around the world and its effects, as well as cases of their violation, and make a strong case for their defense. But you appear to agree that the Second isn’t the same as these others, that it’s not a legitimate civil right and doesn’t warrant recognition or protection as such.
You can still argue that gun ownership is protected by the Constitution in some form, and that, unfortunately, due to its Constitutional status, it has to be treated in jurisprudence in the same way as legitimate rights unless and until it’s repealed. But if this is what you’re arguing you should consistently make clear that it’s not actually comparable to genuine rights and doesn’t warrant the respect they do beyond this weird legalistic sense.
The framers had a number of serious faults and were participants in a matrix of unjust and oppressive systems, reflected in and perpetuated by many of the institutions and laws they created. But I think I’ve quoted this passage before (from Caroline Winterer’s American Enlightenments, pp. 2-3):
They saw the new government as a grand experiment, part of a larger experiment taking place in other countries, and they looked at the results of experiments in law and government in history and in the present to assess their outcomes and make decisions. They drew inspiration from elsewhere. They were in constant communication and debate with people in other countries about the best way to do things (this was limited by their racism and elitism, but that wasn’t a basic principle).
Now with 200+ years of experience here and around the world, with subsequent amendments and comparative outcome data available for the inclusion of this constitutional provision, we do justice to their intent to assess it in that way. I think if the framers were here they would think a lot of what they set forward has been recognized as legitimate and had positive results and other parts haven’t stood the test of time and have had deleterious results. It’s silly to assert that their original intent in including the amendment (however that’s understood) should be relevant but not whether it’s been at all successful in fulfilling that intent! They didn’t see it in terms of arms for arms’ sake. These amendments were part of their experiment in government, and they would be confused to see people now suggesting that the empirical results of that experiment aren’t pertinent in deciding how to go forward (or not) with it.
Granting them for the sake of argument the best intent, that they saw this as a means of protecting people from tyrannical government, no one who looks at how this amendment has played out could reasonably conclude that it has done so. Other amendments have! This one hasn’t. They would look at it and think it’s a disaster. And they would be looking at other countries and how they’re bemused and appalled and angry at our stupidity in persisting with this worthless and harmful so-called right, studying other countries’ firearms laws, and trying to work out the best approach going forward. They certainly wouldn’t be saying “That was put in the document with the intent to defend against tyranny and we don’t give a shit whether it did or not.” What a preposterous notion.
It’s the LEADING CAUSE OF DEATH AMONG CHILDREN. THE LEADING CAUSE OF DEATH.
CNN – “Children and teens are more likely to die by guns than anything else”:
WTF?
I have some bad news for you about 18th-century America.
Denial of what? Again, denial that the secret intent of a bill’s authors and ratifiers, as deciphered by magic decoder rings, should have no place in a court of law? If so, you’re being absolutely ridiculous. This is patently, obviously true. The text of the law and its simple plain text meaning should be controlling no matter what the authors and ratifiers might have privately thought in their head. Moreover, the text of the law and its simple plain text meaning should also generally override any author’s intent which was public and widely known. I am not making an author’s intent argument regarding the second amendment.
Now, if you mean that I’m not accurately characterizing the evidence in these two books, that could be a fair complaint. I’ll be reading them this weekend and getting back to you. If I was a betting person, I’d bet 5 bucks that I’m right about the evidence that is cited in these books.
They are not. This is what I would say. Let me edit and fix what you wrote. Major alterations are highlighted.
I have one position. It’s not a valid right or an amendment worth keeping. It sucks, but it’s in the document and if we’re to get rid of it we have to do it in a proper manner so as not to jeopardize legitimate and necessary rights and the rule of law.
–OR– It’s a valid right.It was intended in its conception, like other rights and the Constitution generally, to protect people from tyranny, and unlikelikeother rights, it has not protected people from tyranny. It should be treated exactly the same as these other rightsnotjust because it’s enumerated in the document until such time as it is repealedbut because it has the same protective value and legitimacy as a civil right as the others do.It is not a weird legalistic sense. It is the standard legal sense. It is standard high school civics. it is everyone else’s positions that is weird and unorthodox.
It is a genuine right. It is a genuine civil right. It is a right enshrined explicitly in the constitution. That means it’s a genuine right, basically by definition. I refuse to use your alternative language because your use of language implicitly attacks the rule of law. You’re saying, near verbatim, that “it’s not a real right”, which is tantamount to saying that it should not be protected by judges in court, which is a barely implicit attack on rule of law. That is why I refuse to adopt your language, and why I strongly encourage you to adopt my language. Again, IMAO it is a genuine right, but it’s IMHO probably bad that it’s a genuine right, and we should IMHO probably change the constitution.
It is necessary that “pursuit of happiness” cannot be a significant principle of judicial interpretation so that everyone in society can best achieve pursuit of happiness.
I am not making an original intent argument. I am making an original plain text public meaning argument. I am not relying on some secret author’s intent. I am not relying on author’s intent that is different from the text. I am only slightly relying on author’s intent of any kind. Rather, I am citing all of this historical documentation primarily for two reasons: One, to establish the meaning of the English words and terms, and Two, to determine if the meaning of the English text comports with reality. The text of the second amendment stands on its own (as long as you use the correct meanings of the individual words and terms from that particular time in history).
As a separate point, I betcha that they did view arms for arms’ sake. Not in so many words, but you grossly underestimate how important individual gun rights were to these people. Similarly, I do not think that they would look at modern gun rights and think it was a disaster. I think they would call for more oversight and training, but I bet most would not want to repeal gun rights. Some would.
Again, for example, they would be utterly horrified by not only many kinds of gun control today (but not other kinds), and they would be utterly horrified by our criminal justice system, and especially police. Oh, they’d be upset about our American police for all of the usual reasons, but they’d be horribly upset, perhaps even more upset, for a bunch of reasons that you would never expect.
You have to understand – our modern police forces are virtually identical to the standing army that they complained about, and which they fought against in the War Of Independence. The idea that cops should be walking around heavily armed with special powers and privileges and defenses in court regarding use of force, search, and seizure, while everyone does not have the right to be harmed would be completely abhorrent to every single one of them, almost without exception, and this would perhaps be their biggest complaint by far about today’s society. Of this, I have little doubt.
Remember that the British Army was first sent to America to enforce several (unjust(?)) tax laws. It wasn’t sent to fight a rebellion. That has the order and causation backwards. It was the imposition of a heavily armed police force with superior powers of force, search and seizure, that was not answerable to private criminal prosecutors in court — it was that which caused them to rebel. And specifically, the straw that broke the camel’s back was when this standing army took some guns from a militia storehouse.
So, what do I mean by all of this? I am probably ok with repealing the second amendment, but I demand that cops must be required to follow the same rules for weapons regarding ownership, possession, storage, carrying, threatening, using, etc., as everyone else, with the primary exceptions being based on individualized paper warrants in hand (as opposed to general warrants). In a country without civilian ownership of guns, bringing out special police units with guns should require the ethical and legal equivalent of declaring martial law or calling forth the army or militia with all of the attendant legal requirements and oversight.
In other words, the idea of a special select corps of citizens with special gun rights in everyday public spaces is absolutely and completely anathema to their foremost principles. To them, everyone should be equal before the law, and armed police in the public space when other civilians are forbidden from having guns is one of the biggest possible violations that you could have for that principle.
For more information, I again suggest “Are Cops Constitutional?” by Roger Roots.
PS:
Fixed:
The idea of a special select corps of citizens with special gun rights whose membership is determined by the arbitrary discretion of the government (e.g. being hired as a police officer; as opposed to an “shall-issue” licensing scheme that can exclude felons, etc.) is completely abhorrent to their foremost principles, including specifically the principle that everyone should be equal before the law.
We live in a police state. I don’t want to live in a police state.
Sorry, also fix:
That’s exactly what I mean, and it’s evident from the samples of each available on Amazon and Google, limited as they are.
You’ve merely restated the first position and ignored all of your endless rambling on this thread trying to make the case for the second position.
For example, I didn’t see a single example of any historical document where any of the people involved said in simple plain language that the second amendment was intended as a bribe to the south to ratify the constitution which they already ratified 3 years earlier. I saw nothing even approaching this. All I saw was a bunch of analysis of effects and inference from those effects along the lines of “if I were a perfectly rational person, and I was fully informed about all of the consequences of the second amendment, then what would be my intention behind passing it?”.
And again, even if the books contain what you purport that they contain, it’s still irrelevant, because author’s intent has basically no place in proper jurisprudence, and so all of this is basically completely irrelevant. We don’t need to know that gun rights was intended primarily to preserve slavery in order to conclude that gun rights today is a bad idea. It’s mostly non-sequitir in the public debate over repealing it, and mostly non-sequitir in proper jurisprudence while it’s still the law.
I again refuse. I can simultaneously say that 1- judges should uphold and respect a particular constitutional provision with the full force of any other constitutional provision, and strongly urge other people to support this, while simultaneously saying that 2- the constitutional provision should be repealed, and urging others to support this as well. There’s no contradiction here. It is not a lesser right in terms of jurisprudence and rule of law. It is a lesser right in terms of public good. I refuse to use “lesser right” or “not a real right” without the necessary context because it can easily be misconstrued as an attack on rule of law.
Tragically, everyone in the US does have the right to be harmed.
You’re doing it again. The US is armed to the fucking teeth, and still, somehow, we live in a police state. Meanwhile, the leading cause of death among cops (as opposed to children – see #277 above) for the past three years running was…COVID.
The two are not contradictory. The founders surely felt that they were living in a police state even though they were armed to the teeth. They rebelled over it. You were making a point about the preferences and beliefs regarding the founders, and I’m here to tell you that you’re completely wrong. (And this point is again mostly non-sequitir when it comes to today’s proper jurisprudence, and non-sequitir to the discussion of whether we should repeal it.)
I happen to think that we do live in a police state today. When the police can stop you, search you, beat you up, steal from you, and even kill you, and there is no justice in the system, no recourse for you to address the problem, and no one else addresses the problem either, that’s a police state. I remind you about the somewhat recent SCOTUS decision that dismissed a civil case where the victims sued for civil damages against cops who stole from them. The SCOTUS decision granted as true that the cops did steal from them, but they were still protected under qualified immunity.
I see heavily armed people walking on the street every day with a badge, and I know that they can gun me down whenever they want without repercussion. If that’s not a police state, then what is?
Completely lost me. Why did you write this?
Not sure who you think you’re arguing with here.
Strikingly similar to the slave patrols and rich plantation owners’ militias protected by the 2nd Amendment, I would say, including in the matter of the groups who bear the overwhelming weight of their violence and oppression, but your “we” is a nice touch.
Fine by me, as long as you recognize that the 2nd Amendment has not in fact, in, you know, actual empirical reality, protected people from police violence and oppression. Or domestic violence and oppression. Or corporate violence and oppression. Or racist, anti-LGBT, anti-immigrant,… violence and oppression. Or violence and oppression generally. And that’s not even to speak of non-humans…
Another example. Surely the cliche example of a police state is an officer in a thick German accent saying “papers please” without individualized cause. The US has that in spades. Something like half the US states permit cops to stop you without cause to demand to see your ID cards in any circumstance. There’s also border checkpoints which can be a hundred miles from the border where similar shenanigans occur. Roadside sobriety checkpoints are another example.
https://en.wikipedia.org/wiki/Police_state
The US is a lot closer than many people would like to admit by most people’s standards, arguably already over a line, and my standard in this matter is much more extreme than most people so we’re definitely over the line.
I’m pretty sure that I didn’t claim that anywhere in this thread, nor in any time over the last several years. My position is a lot weaker and more nuanced than yours in these matters, and I think it’s a little more complicated, but I think you tend to be right about the overall net effect being negative.
You’re misusing the word “militia”. Please stop that. A militia is not a private army. A militia is defined as the whole population of the area who can fight. For practicality purposes, the law has to put hard limits on it. The law often restricts that to able-bodied (male) citizens between 18 and 44. Similarly, no one thinks that something magical happens on every child’s 18th birthday that gives them the maturity to consent to sex with other adults, but the law has to pick a cutoff point for practicality purposes. (And before you needlessly attack me with innuendo that I’m a child molester, I think that specific cutoff is a great idea and it should not be changed.)
If you’re using the plural of the word “militia”, then you’re probably using it incorrectly (unless you’re talking about the several militias of the several States).
The second amendment does not specifically protect the right of individual plantations to organize and train and command private armies. The second amendment does protect the right of approximately every mentally-competent non-felon full-citizen adult to own, possess, and carry weapons (with “reasonable” limits for public safety).
If you’re going to make your asinine argument that the second amendment was a bribe to the southern states to ratify the constitution, an act which they did 3 years before the ratification of the second amendment, you could at least use the correct definitions of the relevant English words.
PS:
I don’t think you have sufficiently engaged with the Freedmen Bureau Bills. One of the stated main goals and main activities of the Freedmen Bureau was to protect the individual gun rights of newly freed black people in order that they might be able to defend themselves against their white oppressors, with the authors and others citing the second amendment (and State constitutions, and inalienable rights from their god) as the source of those gun rights.
This seems to be a rather nasty piece of contradicting evidence to your story about the second amendment. Again, you seem to think that excluding black people from having gun rights under the second amendment says something specific about the second amendment. It does not. Rather, it says something specific about the lack of civil rights for black people at that time. Later, once black people became full citizens (supposedly according to the law, for just a few years during Reconstruction), the federal government was going out of their way to protect their gun rights too. No one at the time thought it was unnatural to use the second amendment as a (ethical) basis to support gun rights for black people. No one, not proponents and not opponents of full civil rights for black people, remarked on the seemingly absurdity that would arise from your interpretation of the origin and intent and purpose of the second amendment (i.e. the asinine claim that the second amendment was a bribe to southern states and its primary purpose was to enable white people to be armed to oppress black people). By contrast, even opponents of full civil liberties for freed black people recognized that if freed black people had full civil rights, then they would have the right to carry a gun wherever they went just like any white person (see dicta in the SCOTUS Dred Scott decision, cited above).
Again, this belief is a willful delusion, willfully held because it would be convenient if it were true for your political goals. I absolutely detest that kind of thinking and rhetoric.
I’ll have to come back to some other things, because I’m stuck on this. This is exactly what I’m talking about. In your “correction” you stated your position as “It was intended in its conception, like other rights and the Constitution generally, to protect people from tyranny, and unlike like other rights, it has not protected people from tyranny.” My point is that the framers would understand and appreciate this failure. They would understand that the hundreds of millions of guns in the US not only haven’t checked police tyranny (and again, we know who the primary victims of police tyranny in this country have been all along) but have complemented it.
They would get that talking about the Second Amendment in this context as you do is bizarre, because it has not protected people against police violence. It’s like arguing over the meaning/intent of a recommendation of balancing bodily humors to cure infectious diseases in an 18th-century medical text. If they were alive today, they would quickly grasp that, for whatever reason it was recommended at the time, it didn’t in fact cure infectious diseases. Law, like medicine, was part of the “science of happiness.” Empirical outcomes mattered to them, and they should matter to us.
https://en.wikisource.org/wiki/Dred_Scott_v._Sandford
Bolding added by me:
From the famous SCOTUS decision declaring that black people were not full citizens with full civil rights. They recognized what it would mean for black people to have full citizenship and full civil rights. There seems to be no obvious way to make this rhetoric consistent with the idea that it was common knowledge, or even uncommon knowledge, that the second amendment’s primary purpose was to protect the power of the States or the rights of white people in the southern States to maintain slave patrols and maintain slavery. You can’t make that hypothesis consistent about original intent (nor original plain text public meaning) consistent with this sort of rhetoric. At least you can’t make it consistent without resorting to extreme conspiracy-theorist arguments where everyone is speaking in code.
And I again say with full confidence that this is not the conclusion that they would draw. They would draw other conclusions. In spite of all of the deaths and suffering guns cause today, I have full confidence that they would not change their mind. They’re not about to let go of one of their most deeply cherished values and beliefs, individual gun rights are a good thing, without trying lots of other ideas first, such as many of the regulations that I named. Remember, many more people had individual gun rights than could vote at that time! You simply do not appreciate how important gun rights were at that time.
Do I think that they would be correct in their initial beliefs that gun rights are still a good thing? I already granted that they would probably be mistaken.
I don’t even understand what you’re saying. Our values and beliefs regarding rule of law and jurisprudence are seemingly so radically different that I don’t even understand what you’re trying to say. It makes no sense.
For questions of proper jurisprudence, it’s completely irrelevant whether it has not protected people against police violence or not! It is a constitutional right until it is repealed, and until it is repealed, it should be upheld by the courts and protected and respected by the police as much as any other constitutionally protected civil right. End of discussion. You are not going to change my mind on this.
Again, no, they would not. Empirical outcomes mattered yes, but they were a very stubborn lot with a lot of prejudices and preconceived conclusions, and it would take quite a lot to overcome that. I bet most of them would die before changing their minds.
They would have all sorts of excuses as to why it hasn’t prevented tyranny, and all sorts of proposed fixes too. They would sound like today’s gun nuts and NRA leadership. Many would advocate for better enforcement of current laws and mandatory militia training. Then I bet there would be diverse subgroups with other ideas ranging the gamut from “we need better mental health care” to “we need to lock up criminals for longer”. They would go through these exercises for years, maybe decades, just like any gun nut today, before maybe finally some of them might admit that they were wrong (like me).
Again, what was the final act that caused them to rebel? Not “they’re taxing us without representation”. Not “there’s a standing army that kills people without being subject to criminal prosecution for it”. It was “they’re taking our guns!”. That’s what. These people were very excited about their gun rights.
I haven’t because I’m sure it’s covered in depth by Anderson and I want to wait until I’ve read more about it; also I was embarrassed to approach it because, as everyone knows, that extension spelled the end of tyranny over black people in the South and across the country.
It was decades after the Second Amendment, and after the military defeat of the forces and system behind the Second Amendment. It’s irrelevant to the reasons behind the Second Amendment.
Continued:
The second amendment does not say “so long as a national armed population is necessary to ensure freedom, gun rights shall be protected”. The second amendment says “because a national armed population is necessary to ensure freedom, gun rights shall be protected”. This means that proper jurisprudence would require assuming the justification clause to be true. Even if it were false, they would have to assume it as a counterfactual while interpreting the second clause, the rights clause.
Again, see the Volokh paper cited above for a more thorough defense of this position.
And thus, again, when it comes to jurisprudence, it simply does not matter if gun rights has not and does not and cannot even one noble purpose. It does not matter if gun rights did not and does not and cannot help prevent or effectively fight against tyranny. It does not matter if gun rights did not and does not and cannot prevent or effectively fight against a police state. It does not matter if gun rights did not and does not and cannot be used effectively for mundane personal self defense. None of this matters in an American courtroom of a judge ruling about gun rights while the second (and fourteenth) amendments are still there.
The Dred Scott decision wasn’t.
Also, the Freedmen Bureau bills were mere years after the defeat of that system. That’s a pretty short amount of time for the necessary culture shift to happen which changes the public’s beliefs about the purpose of the second amendment. Too short. There wasn’t enough time for public opinion about the purpose of the law to shift that drastically. This is strong evidence that there was not a widespread public belief that the second amendment was not merely a bribe to the South.
You’re clinging to an obvious falsehood. I don’t know why. (Well, I know why – because it’s politically convenient.)
Whoops. Correction:
This is strong evidence that there was not a widespread public belief that the second amendment was
notmerely a bribe to the South.Well, you’re wrong.
Yes, I think this is right. You have a specific idea of legal thought and Constitutional interpretation and I don’t share it. (And frankly, I don’t think the “founders” would share it, either. It’s not a fucking Bible. And, well, even if it were…)
I don’t think you have sufficiently engaged with the Freedmen Bureau Bills. One of the stated main goals and main activities of the Freedmen Bureau was to protect the individual gun rights of newly freed black people in order that they might be able to defend themselves against their white oppressors…
First, the intent of the Freedmen’s Bureau doesn’t change the intent of the people who framed all those gun-rights amendments in the first place.
And second, Do you know why we tend to forget about any of those efforts to “protect the individual gun rights of newly freed black people” (and their descendants)? It’s because all those guns NEVER DID JACK SHIT in the struggle for racial equality and justice. Except, of course, to give the (also legally armed) white majority yet another excuse to shoot first and burn whole black-majority areas to the ground, again and again.
And thus, again, when it comes to jurisprudence, it simply does not matter if gun rights has not and does not and cannot even one noble purpose…
Actually, yes, all of those things MIGHT matter, if responsible jurists would reread and remember the first half of the Second Amendment, and stop pretending that part of our SUPREME LAW doesn’t matter, doesn’t mean anything, and can be ignored. It’s there for a reason, and it comes BEFORE the actual right to keep and bear arms for a reason.
The second amendment does not say “so long as a national armed population is necessary to ensure freedom, gun rights shall be protected”. The second amendment says “because a national armed population is necessary to ensure freedom, gun rights shall be protected”.
Wait, what? That’s literally not what it says.
In #300, I meant literally literally. In any case, note your strange paraphrasing that’s attempting and failing with the weird language of the amendment, to the point you’re trying to make… My contention (granting your reading/interpretation for the sake of argument) is that the framers broadly would have viewed the first part as a hypothesis. If the hypothesis is falsified, as it plainly has been, then the policy based on it should be reconsidered. This would have been obvious to them, given that they weren’t idiots.
“Balancing bodily humors being the cure for infectious disease, the balancing of bodily humors shall be prescribed for infectious disease.”
noting your strange paraphrasing
Plain meaning? I can do that.
Actual:
“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.”
My plain reading, without the contorted syntax and otiose commas:
‘The right of the people to keep and bear Arms shall not be infringed because a well regulated Militia is necessary to the security of a free State.’
I note that “the people” and “Militia” are used, implying that they are not the same thing.
Quite clearly, the Militia is a subset of the people.
It follows that the plain meaning is that, because a well regulated Militia is necessary, the people (including the Militia) have a right to keep and bear Arms.
I hardly see how those arms cannot be otherwise regulated — I mean, it already is.
Just not enough.
Me, I think it’s rather weird phrasing, but pretty clear.
As Gerrard notes, it plainly means “the people” get to be armed so that the “Militia” can exist and be well regulated.
However, there is an implicit conditional there that’s presumed to be true: the supposed necessity of a Militia. Obviously, most other free States don’t have that clause, yet there they are, so that supposed necessity is proven false by counterexample.
Perhaps a bit of levity.
Gerrard, perhaps consider that if it were the case that it read thus:
“A well regulated Militia, not being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Then each and every one of your arguments and claims and stances would remain exactly the same and carry the same weight and be as persuasive.
I’m entirely sure I’m far from the first person to point this out, but it really is striking that it’s the only amendment that has that strange form – with a premise/hypothesis/if…then/given that…/whatever.
[SC, we crossed while I was composing]
The second amendment does not say “so long as a national armed population is necessary to ensure freedom, gun rights shall be protected”. The second amendment says “because a national armed population is necessary to ensure freedom, gun rights shall be protected”. This means that proper jurisprudence would require assuming the justification clause to be true.
The Second Amendment says neither of those things. It says “Because a well-regulated militia is [and most likely always will be] necessary for the security of a free state, the people have a right to keep and bear arms for the particular purpose of ensuring the security of a free state.”
The first half of that sentence isn’t just a “justification clause,” it’s a LIMITING clause. If the Founders thought a “justification clause” was necessary to explain why a right was set forth, why didn’t all the other rights have “justification clauses?”
And I again say with full confidence that this is not the conclusion that they would draw. They would draw other conclusions. In spite of all of the deaths and suffering guns cause today, I have full confidence that they would not change their mind.
They wouldn’t have changed their minds because — “originalist” bullshit notwithstanding — they almost surely understood, from day one, that domestic peace and lawful order had to be maintained, and that meant, among other things, keeping guns out of the hands of people who clearly weren’t “well-regulated” enough to work reliably for the security of a free state; and limiting the amount of firepower “the unregulated militia” could have.
Responding to the same tired old point rebutted a thousand times from Raging Bee and SC:
SC,
SC,
Raging Bee,
I covered it up-thread. Let me cover it again.
You’re wrong.
That grammatical construction was common in the US State constitutions of the time, for gun rights and for other rights. Read the Volokh paper to see a thorough examination of these comparable grammatical constructions.
https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-73-3-Volokh.pdfLet’s take a look at one of my favorite examples.
The 1784 New Hampshire Constitution:
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed […]
There is no provision in this text that allows a judge to decide that the right is no longer necessary based on changing facts on the ground or based on changing interpretation of facts on the ground. The first clause is an assertion of its necessity, and the second clause is a protection of the right, and altogether a judge should read it as instructing the judge to assume the truth of the first clause while interpreting the second clause, even if it would mean assuming a clear counterfactual.
Also notice how the justification is overinclusive and underinclusive: It is not sufficient by itself to protect liberty (underinclusive) (there are many other civil rights that are necessary to protect liberty), and clearly it’s not required in every court case whatsoever in order to protect liberty (overinclusive). Clearly, it does not limit the scope of the rights clause. It’s not judicially meaningless; it provides color and commentary which can have importance in some situations. However, it is not controlling or limiting. Clearly in this case, it would be grossly improper for a judge to simply decide that the right is not sufficiently important in this case to uphold. Again, it is an instruction to interpret the rights clause under the presumed truth of the justification clause, and it is not a sunset clause that can be invoked by a judge.
Again, clearly it cannot be a sunset clause. No reasonable person is going to write a constitutional amendment to protect a civil right and include a sunset clause that allows a judge to come to a new conclusion about the best interests of the public. As much as I hate Scalia, he had it right in Heller when he said this:
https://www.law.cornell.edu/supct/pdf/07-290P.ZOJUSTICE B REYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens
a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people — which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
…
Raging Bee
You’re wrong.
First, they knew that a large majority of the militia could never be well-trained e.g. “well-regulated”. Quoting the Federalist #29:
And yet, in spite of this fact, they still decided to do their damnest to make sure that they were as heavily armed as possible. Literally the next sentence after that quote is:
They knew that most people could not be made well-trained (i.e. well-regulated), but they still wanted them as heavily armed as possible.
In case that’s not clear enough, consider the second federal militia act of 1792, which required nearly all able-bodied white citizens between 18 and 44 to be heavily armed. Let me quote:
https://www.mountvernon.org/education/primary-source-collections/primary-source-collections/article/militia-act-of-1792/So, you’re just wrong.
…
John
As I explained above, this is not true. In the actual text of the second amendment is intelligible, and there is a logical connection between the supposed truth of the first half and the command of the second half. The stated purpose is not a limiter or sunset clause, but instead an instruction for the judge to assume its truth while interpreting the second half. That can have real effects on real cases without being strictly controlling or strictly limiting.
By contrast, your changed text is simply incoherent; the stated purpose contradicts rather that comports with the apparent purpose of the second half. I wouldn’t know offhand where to begin to interpret such a law.
and
Leaving aside this business of assuming the truth of one clause and interpreting the other being proper jurisprudence, it is exactly the same for my jocular version:
“A well regulated Militia, not being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
That was my very point: assuming the truth of the first clause does not lead is not relevant to the second clause. Amusing it is to see you claim the second clause can be interpreted and the second must be presumed.
Again: each and every one of your arguments and claims and stances would remain exactly the same and carry the same weight and be as persuasive were it thus.
The first clause would still be presumed true, and the second would still be interpreted.
(This is all just wank, really. Rationalisation of the status quo)
There would be a (small) difference between the following laws.
“Because a national armed population is necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed”
“Because of the need for self defense and hunting, the right of the people to keep and bear arms shall not be infringed”
The first version carries an implication of military grade hardware. The second version does not.
The first version carries a meaning which would especially argue against a national gun serial number registry. The second version does not.
The first version does not specifically protect hunting. The second version might plausibly be interpreted to protect hunting under the umbrella “keep and bear arms”.
And so on and so forth.
I covered it up-thread. Let me cover it again…
Yeah, you (and Scalia, whom you claim to hate while explicitly agreeing with his bogus ConLaw blithering) “covered” it with a lot of dishonest hand-waving, in which you interpreted the Second Amendment in the context of every document ever written in the Multiverse EXCEPT the one it’s actually a part of — the US fookin’ Bill of Rights. And in THAT document, the right to keep and bear arms is the only one explicitly set forth only as a means to some other end, and the only one that has any kind of preamble.
Do you really expect us to believe that the Founders would describe all those rights in one manner, and then say “let’s describe this one in a totally different manner,” without an actual reason to treat that one differently? Puh. Lease. The more you handwave about this, the more repetitive text-wall comments you post, the more other laws you quote, the more absurd your argument becomes.
Interpreting the Second Amendment in the context of other constitutions or laws may matter, to some extent. But the context of the US Constitution, of which it’s only one small part, matters MORE. The US Constitution supersedes all those others, remember?
I note that “the people” and “Militia” are used, implying that they are not the same thing.
Quite clearly, the Militia is a subset of the people.
The militia that can be described is not the True Militia…
Raging Bee
It still doesn’t say “so long as it is necessary…”. It rather says something much more like “because it is necessary…”. You said you were a technical writer, correct? Why are you so casually replacing the actual (implicit) subordinating conjunction word with a completely different subordinating conjunctive phrase?
Do you really think that, given the rest of the surrounding legal and political context that I’ve given, it makes any sense to say that anyone intended or understood the text of the second amendment as including a clause that allows a judge to cancel it? I asked before, if I’m wrong, then what do you think is the more plausible reading? You refused to answer before, you dishonest intellectual coward.
If the arguable principle author of the document, George Mason, explicitly says that the people are the militia, and this sort of metaphorical usage is overwhelmingly common at the time, that means something. That matters.
It is simply incorrect usage in this context to say that a private paramilitary group is a militia. They did not use the word that way.
Yes. I do. Do you know what a meme is? It was a meme. Not “meme” in the sense of a funny picture online, but instead a particular phrase that gained popularity in the culture.
The clear ancestor of the federal bill of rights is the Virginia bill of rights, ratified 1776, includes:
It’s not surprising that the federal bill of rights used very similar language because the federal bill of rights was in large part copied from the Virginia bill of rights.
Here’s some other bits from the Virginia bill of rights.
The second amendment doesn’t look so unusual now, does it? Godsdamnit. I’m going to read the sources provided to me, and they’re book length. You could at least read the rather short paper, the Volokh paper, that I presented to you.
I quoted more than half of the Virginia bill of rights. More than half of the Virginia bill of rights includes the same “justification clause, rights clause” grammatical structure, or something analogous. Do you really think that all of these justification clauses are sunset clauses that can be invoked by judges to nullify the right? Really!?
Or, maybe you’ll use that dishonest argument that this has little or no bearing on the federal constitution, which is complete and utter bullshit. It’s the clear foundation of it, with George Mason and James Madison both being quite active in Virginia politics, at an least one point both being members of the Virginia legislature.
Or maybe you’ll make some argument about how the choice of incidental words, phrases, or grammatical structures has far more value than what is proper. If you have done any basic amount of research into jurisprudence and how laws are written, one of the first things that you would understand is that digging this deep into incidental differences between laws or between revisions in the drafting process is like reading tea leaves – it’s usually a fool’s errand to try to derive any meaning from such ridiculous textual analysis. (As opposed to reading actual debate notes on why changes were made during the revision process. That is often useful. And I did link to relevant debate notes.)
tl;dr The only remotely plausible meaning of the second amendment in its legal and historical context, and given its actual text, is a guarantee of individual gun rights separate from militia service and without a sunset clause that can be invoked by judges.
Do you really think that, given the rest of the surrounding legal and political context that I’ve given, it makes any sense to say that anyone intended or understood the text of the second amendment as including a clause that allows a judge to cancel it?
No, I think that, given a plain reading of the sentence, combined with longstanding common-sense understanding of government’s role in keeping lawful order and limiting violence among its own people, it makes perfect sense to say that: a) the right to keep and bear arms is SUBORDINATE to the obligation to maintain well-ordered liberty; and b) government is not only empowered, but REQUIRED, to (among other things) restrict the availability of arms as it deems appropriate to ensure the security of a free state.
And face reality already: the US and state governments have been doing this throughout our history, and for the most part, it’s not at all controversial. Everyone knows there are certain arms we civilians are not allowed to own or operate, and only the most clueless (or bloodthirsty) loons complain about it. Evan Scalia admits this when he distinguishes handguns from all the other firearms on the market today. (And besides, even the “organized militia” and standing armies don’t get to have any damn weapons they want; so why should civilians have LESS such restrictions than people who are trained and organized to use them?)
It’s not surprising that the federal bill of rights used very similar language because the federal bill of rights was in large part copied from the Virginia bill of rights.
Nope, that doesn’t explain why one right is described so differently from all the other rights enumerated in the same document. The Founders may not have been farsighted geniuses with the purest motives, but I really don’t think they were so shallow as to say “hey, let’s just copy this phrase from another law ‘cuz it sounds cool,” without thinking of how it might not be consistent with other language in the document they were writing. It is much safer, and more honest, to start with the assumption that, as I said before, there was a REASON why that one right, alone among the others, had a preamble, and a REASON why the right came AFTER the stated objective/priority.
Seriously, does anyone ever do this much mental gymnastics to justify disregarding any other part of the Constitution?
There is no provision in this text that allows a judge to decide that the right is no longer necessary based on changing facts on the ground or based on changing interpretation of facts on the ground.
I’m not talking about judges, I’m talking about elected lawmakers regulating both militias and access to firearms. You know, those laws you yourself have quoted. As always, you can’t seem to address my arguments without misrepresenting them, or crying about how you “don’t get” them. Just admit you don’t get it, as you’ve done so many times before, and shut up already.
The first clause is an assertion of its necessity, and the second clause is a protection of the right…
First, those aren’t two “clauses,” they’re ONE FUCKING SENTENCE. Even a grade-school kid can understand this.
And second, why is there no “assertion of necessity” preceding any of the other rights set forth in the same document in which this one appears? Did the Founders not consider any of those other rights “necessary?” OF COURSE that’s not what the first half of the sentence is; it is, as I’ve very clearly shown already, put there to LIMIT that right, in a way that the Founders never intended to limit any of the other rights.
If the arguable principle author of the document, George Mason, explicitly says that the people are the militia, and this sort of metaphorical usage is overwhelmingly common at the time, that means something. That matters.
Um, no, what matters is that you’re banging on and on like this in reaction to a line of mine that was a joke.
Waitaminute, Gerrard, did you just say the first half of the Second Amendment was only a “metaphorical” word-usage? Sorry, that’s bullshit. LAWS are not “metaphorical.”
And if the first half of that sentence is just “metaphorical,” how can you say with any confidence that the second half (of the SAME SENTENCE, remember?) is to be taken at face value?
“Yer honor, the law my client is charged for violating is only metaphorical in its meaning, therefore I move to drop the charge.” Nah, I don’t see that working in any real court.
Jeezy Chreezy, maybe I’m the one overreacting to an obvious joke…
This comment :
https://proxy.freethought.online/singham/2023/04/22/easy-access-to-guns-results-in-needless-death-and-injury/#comment-5174797
On Mano Singham’s blog. Seems spot on here to me.
@276. GerrardOfTitanServer : “q=Am+I+the+asshole..”
Er, yeah?
You did ask.
Also you said somewhere up ther that yiou were certain what the USA’s “Founding Fathers” think.
I do not believ youare eitherr telepathic nor atimetraveller GOTS.
yeah, ’bout that. Nah. Just nah.
Fuck no.
SC (Salty Current)
Sorry I haven’t been on here. I didn’t want to say anything more before I read the book, and I got super busy at work. I think in the next day or two I’ll have a chance to read it.