CF_Kane
7442
The meaning of the text of the Second Amendment is highly contested among legal historians and other members of legal academia. I am not deep into this scholarship, but I know that Scalia’s approach in Heller (and Steven’s approach in the dissent) are on hotly contested ground among the various schools of originalist thought.
Garrett Epps has a piece in the Atlantic for a general audience where he argues that:
[The historical context] suggests that, in adopting what became the Second Amendment, members of Congress were attempting to reassure the states that they could retain their militias and that Congress could not disarm them. Maybe there was a subsidiary right to bear arms; but the militia is the main thing the Constitution revamped, and the militia is what the Amendment talks about.
I’ve devoted years of my life to studying such ideas as the “original understanding” or “original public meaning” of constitutional provisions. No matter what anyone tells you, no one (and I certainly include myself) can really know the single meaning of any part of the Constitution at the time it was adopted.
Anyone who claims that the text of the amendment is “plain” has a heavy burden to carry. The burden is even heavier if an advocate argues that the Second Amendment was understood to upend laws against concealed carry or dangerous weapons—both of which were in force in many parts of the country long after it was adopted.
So it may be that the amendment’s text supports something like where we are now: Dick Heller, a law-abiding citizen, can own a handgun in his home for self-protection. The text and context, however, don’t point us to an unlimited individual right to bear any kind and number of weapons by anyone, whether a minor or a felon or domestic abuser. That would be a right that, if recognized by the courts, has the potential to disrupt our society at a profound level; a right that, as Fallows’s correspondent blithely asserts, renders the damage of gun violence “utterly irrelevant.”
Yup. It’s the comma that does a lot of work for that sentence.
There’s a great podcast from Radiolab discussing the odd construction (even for its time) of that passage and how that comma is key to our interpretation of the 2nd.
Houngan
7444
I don’t think so. They were saying a militia is a great thing, necessary to a free state. Then in their tortured phrasing they established that the right to bear arms won’t be infringed (because without it we can’t have that militia we really like.) It should always be read with the primary purpose of preventing a standing army from being established.
I tend to think the gun right’s folks have the right of this, as written, but the left may have a point, intent-wise. I think the founders were trying to make sure that no government would be allowed to disarm the populace, because then the militia is impotent, and an army will come in and sweep up control. They would write it very differently today.
In the end it’s a politics problem, not a constitutional one. Even granting the existence of an individual right to own weapons, you can still constrain that right with some reasonable requirements and restrictions, as even conservative justices have said. All of the fighting is around what is reasonable.
With respect to that, the current conservative notion of the boundaries of ‘reasonable’ is a relatively new and very narrow one, to the extreme that basically no restrictions can be reasonable; and that is the direct result of a politics which seeks to make a wedge issue out of it for electoral gain.
The answer would seem to be for Democrats / people on the left / proponents of greater restrictions on guns to win more elections, seat more judges and justices, and thereby expand the scope of ‘reasonable’ to permit more restrictive gun laws. You can make an argument that winning more elections means they have to keep that agenda secret, but that’s a non-starter: if you want a more sane gun law environment, you can’t vote for that if no party or candidate is overtly for it, because you won’t know who to vote for.
Maybe, but an armed populace subject to use as a militia comes in pretty handy when you have to deal with slave rebellions. Some states were far more worried about that than any threat of a federal army.
Timex
7447
Funny thing is that even the commas are contested, because different states ratified versions with different punctuation.
Houngan
7448
Well, we can’t even get past main intent, much less sub-intents.
Tman
7449
These are not common sense. Many won’t do a darn thing to stop gun violence. Let’s check a few eh?
- Every fire arm needs to be registered.
- Make these registrations a public database accessible to EVERYONE. Ya, I can’t see a single thing wrong with that.
- Every single purchaser needs to do a psychological test. So now, you’re going to force people to see a shrink to purchase a gun? How much will that cost? What will the waiting time to get a shrink for this? Do you honestly believe there won’t be shrink mills where they see hundreds a day to sign off on this?
3a. Oh, and the shrink can talk to previous spouses to determine their stability. Oh, I can’t see a single thing wrong with that!! Ooooh booy.
- You need to buy firearm insurance for $800 EVERY YEAR?
Do I need to continue? Defense these as common sense and then I can go through the rest of the bill.
ShivaX
7450
Problem is SCOTUS decided that phrase effectively doesn’t mean anything in Heller, so that line of attack is closed.
The law is effectively “this class of people can’t have guns”.
Firstly: 14th Amendment.
I’ll leave it to a better spoken person:
Again, I have no problem with a financial disincentive to gun ownership as part of a program to wrangle American gun culture into some semblance of sanity. I would have a problem with is being the only measure passed. But as part of a larger package, I’m all for it.
No, but opposing any and all gun legislation is. Which is why it’s folly to judge efforts to implement common sense laws by whether the Republicans base will oppose it.
Yes, they were baseless. They continue to be baseless. No one is coming to take away everyone’s guns. You should know better than to resort to that.
Well, different people have different thresholds for common sense. My threshold definitely includes registering firearms, keeping firearms out of the hands of people with mental illness, and even mandatory insurance or taxation. Basically, if it’s good enough for cars, it’s good enough for guns.
Sure, knock yourself out! We can disagree about the particulars of those things, but if you think those are outside the bounds of “common sense”, then I suspect you’re happy with the current state of gun ownership in the US. Which is as far from “common sense” as I can imagine.
Was there a “secondly”? Or are are we just citing random Amendments? If so, I’ll invoke the 3rd Amendment, because no one really talks about quartering troops these days.
If he’d like to come here and join the discussion, I’d be happy to read his posts. But I’m not really into watching some dude’s video to find out why you think a piece of legislation is “insane”.
-Tom
ShivaX
7452
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I mean, at the end of the day, you’re fine with denying rights to people based on their income.
I am not.
I don’t see any scenario where those two positions are reconciled.
Tman
7453
No I’m not happy with how gun ownership is in the US, so you’re wrong on that account.
What common sense means to me, is will it have ANY appreciable affect on gun incidents or accidents. I’m not sure what litmus test you’re using, but IMO, the ones I’ve listed will do nothing to impact these incidents. I don’t know what the intent of these things are, other than inflame gun owners.
Yeah, that’s a crazytalk response. I have to pay upwards of $800 every year for car ownership (mandatory insurance, registration fees, smog checks). I’m pretty sure the 14th Amendment doesn’t protect me from that, but next time I go to the DMV, I’ll ask.
-Tom
ShivaX
7455
Car ownership isn’t a enumerated right.
I get that you think the 2nd Amendment shouldn’t exist. That’s a position you can have.
But it doesn’t change that it does exist and thus is a right, just like Freedom of Speech or Religion.
You can’t charge someone for exercising their rights. Which is why I asked how much does Freedom of Speech cost earlier. Because it’s the same thing. Now you can argue they shouldn’t be the same thing, but, again, that doesn’t change the fact that they are.
I’m okay with putting the common sense baseline at “if it’s good enough for cars, it’s good enough for guns”. Regulating gun ownership more carefully is a fine starting point, even if I bought into the silly argument that it “wouldn’t have ANY appreciable affect [sic] on gun incidents or accidents”. Which it definitely would. The sorts of things in that bill would make it more difficult to own a gun, they would make it easier for law enforcement to track and prosecute gun-related crimes, and they would encourage the perception of gun ownership as something that requires a degree of responsibility. Even just this last one would be a great start!
-Tom
But now we’re back to “Should gun ownership be a Constitutional right?” Since we all agree that the courts have decided (for now) that it is, what’s the solution? Throw our hands up and accept that the US will have thousands of gun deaths a year?
ShivaX
7458
Closing various selling/buying loopholes and the like would be a reasonable start since the support for that is high even among gun owners. Notable that this bill basically didn’t do that, despite being draconian in so many ways, it managed to dodge the issue that people agree on.
Realistically it’s going to happen. Education and training will help, but if someone with access decides to kill people, people are gonna die. And it’s not just a gun thing, look at the UK and knives where they’ve made crazy knife laws and yet knife crime doesn’t abate anyway. Admittedly knives are harder to control since damned near everyone needs and has them.
Honestly, I feel like gun control in many ways is akin to abortion. It’s an issue to get people to vote for your team, but at the end of the day the Democrats never really do anything about it. They toss out some obviously unconstitutional bill and then shrug when it gets destroyed for being unconstitutional and say “Well we tried, that darned SCOTUS, better vote for Democrats forever and we’ll eventually replace those SCOTUS members.”
Meanwhile stuff that would pass and has high support is never even drafted, because keeping those votes is, ultimately, more important.
Hoo boy, I should have guessed. Citing the sanctity of the 2nd Amendment as a reason not to pass gun legislation is a sure-fire sign of a gun nut. I guess that explains why you got all fired up about a bill no one is even considering?
Fortunately, I’m neither a law-maker or a judge, so I get to just argue about what should be and let them sort out the particulars. But I agree that the 2nd Amendment is a Big Fat Fucking Problem. And, yes, I wish it didn’t exist.
-Tom
ShivaX
7460
I mean… you understand how the government works right? You can berate me for stating facts, but it isn’t a good look.
Sure, but we don’t live in that world and when someone points that out, I’m not sure the fair response to call them a “nut” for living in the reality we find ourselves in. You come off as not interested in an actual solution to a problem. Which, sure, you can say everyone should get a unicorn and we should all be rich, but I’m not sure you hold any high ground when someone points out unicorns aren’t real and that economies don’t really work that way.
Tman
7462
This really gets to the root of it. Non-gun owners just don’t want anyone to own a gun, because many of the items on everyone’s wish list wouldn’t have prevented most mass shooting in the past 20 years.
How? How does having a database of gun owners help track & prosecute these crimes? This isn’t like a vehicle where they can get a license plate on a hit and run. Elaborate, because I lack the hand-waving that non-gun owners are so good about.
Sidenote: You keep bringing up cars as a way to regulate. The 30,000 deaths each year due to automobile accidents would like to say that regulation doesn’t buy you want you think it buys you.
This is such a loaded statement in how I could interpret this. 1) I can interpret this as you don’t think most gun owners have any responsibility; 2) You think more regulations will somehow make people better gun owners? or how about 3) which is how I would like to interpret it and that is I would like to have assurances that everyone who owns a gun is trained in how to safely handle and store the gun.
If we go down #3) - then suprise! you went and picked something that I can agree on - but the methods for how to get there are vastly different.
When I was in sixth grade, everyone had to learn to shoot a 22 rifle in the basement of our grade school. Gun safety was a requirement. I like to think that this taught me greater respect at a young age.
This is one of the things I think we need - more education and I do support license requirements to show people are trained in how to safely handle and store a gun. I also think hunter safety should be a requirement regardless of age. Most states only require it up to 16 or 18 years.
Hundreds of children die every year because of unsafe handling; hunting accidents or parents leaving guns unattended where kids can get at them. This is where I think we can chip away at responsible gun ownership and you’ll notice I didn’t pick on that specific item of training in the bill.
But the other things? Stick with these points and the ~72 million gun owners will most likely vote harshly against these types of things.
