The second amendment

Eeek. Gun control means knowing how to control your weapon. Sorry your folks ain't capable...

Strongly suggest you disarm them Eva, even I don't want them around....

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Eva wrote:

And at the last area safety meeting conducted for my merchant area, the police emphatically told the shopkeepers and restaurant employees NOT to keep guns, because they are "11 times more likely to get hurt with their own gun than (you) are to use it against someone in defense."

Did the police say where they had got this statistic from? Did they say something about how the shopkeepers owning or not owning a gun affects their likeliness of being attacked? Not really disagreeing with you on the wisdom of gun control; just curious, and somewhat suspicious of the police as a reliable source of information.

On a different note, Eugene Volokh of UCLA has another very neat list of primary sources pertaining to the second amendment. I especially like his list of "right to bear arms" provisions in state constitutions, sorted by state, or alternernatively, sorted by date. It nicely sums up the way state legislatures thought about this right, and how their thinking changed between 1776 and today. And since the federal government is a creation of the states, not the other way round, I think this is at least as relevant to interpreting the Second Amendment as Supreme Court interpretations are.

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Thomas wrote:

oralloy wrote:

Thomas wrote:
oralloy: Can you post a link to those militia laws please?

Some gun control *was* fine under the English Bill of Rights. This was only a right to have a musket (the militia arm of the day). The right did not cover hunting shotguns or concealable handguns, which were against the law for most people.

Source? Sorry for being obnoxious, but this is a debate where opinions are frequently stronger than the evidence supporting them, hence my insistence on evidence.

One restriction that I didn't mention (that against carrying arms in public), is also relevant:

http://press-pubs.uchicago.edu/founders/documents/amendIIs1.html

The law prohibiting "shot" is "2 & 3 Edw. 6, ch. 14 (1548)". I misspoke with the term "shotguns" as back then the difference was one of ammo, rather than type of gun.

The law was repealed shortly after the English Bill of Rights, so I was wrong to say shot was illegal at the time. However, the fact that shot was prohibited over some of the time that people were required to have militia arms shows that it was distinct from militia weaponry.

The law is mentioned in footnote #45 in this law journal article:
http://www.saf.org/LawReviews/MalcolmReview1.htm

"45. Two acts that established restrictions on ownership of firearms in England of more lasting significance were 33 Hen. 8, ch. 6 (1541), which restricted ownership of handguns to persons with an annual income of at least *100 (a very high sum) and 2 & 3 Edw. 6, ch. 14 (1548), which prohibited the use of gunshot and the firing of handguns in cities or towns. The former was not repealed until 1831, 1 & 2 Geo. 4, ch. 32 (1831), the latter not until 1695, 6 & 7 Will. 3, ch. 13 (1695)."

I believe I located the text of the law in the middle of this page:
http://www.british-history.ac.uk/report.asp?compid=14631

"C. 14. N. 13. An Act against the shooting of Hail Shot.

No Person, under the Degree of a Lord, shall shoot, within any Town, in any Hand-gun, at any Mark, &c.; nor any Person whatsoever shall shoot with Hail Shot, on Forfeiture, for every Offence, £. 10."

The law restricting pistols is "33 Hen. 8, ch. 6 (1541)", mentioned in the footnote #45 above. I haven't had much luck finding the complete text of this law.

This law journal article seems to have excerpts:
http://www.guncite.com/journals/rglook.html

"In 1541, realizing that his subjects possessed and used firearms for recreation and defense in spite of his efforts, Henry repealed all the former statutes and prohibited only the carrying of loaded firearms on a "Jorney goinge or ridinge in the Kings highe waye or elsewhere;" the prohibitions on keeping and shooting firearms were limited only to firearms smaller than "the lenghe of one hole Yard" for some and "thre quarters of one Yarde" for others. As the statute makes clear, he did so because it was recognized that exercise in the shooting of firearms (which by then were no longer considered merely ineffective sporting items) by the citizens "may the better ayde and assist to the defence of this Realme...."[28]
. . . .
[28] An Acte Concerninge Crosbowes and Handguns, 1541, 33 Hen. 8 ch. 6."

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Thanks for the links! I'll look into them soon.

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Thomas wrote:

oralloy wrote:
Today, the right would cover automatic rifles, but not other types of weapons (see the Swiss Militia for a perfect example of what was intended with the Second Amendment).

I am not convinced of this. Neither the English Bill of Rights nor Blackstone distinguish between individual and collective self-defense. They both refer to "their defense". The State Constitutions I linked to earlier have two versions of language: some say "for the defense of themselves and the state", some "for the defense of the state". Two of the State Constitutions, I don't remember which ones, specifically prohibit the carrying of guns during an election, in the room where people cast their ballots -- which implies that they would have otherwise had the right to do so.

I tend to view self-defense as a natural/human/God-given right. If you are under attack, and the police are not there to protect you (or the attack is grave enough to overwhelm the police), you have the right to pick up any available weapon and defend yourself with it.

If you were exercising your Second Amendment right to keep a militia arm at home, that arm would be "available" for your use under the right.

Thomas wrote:

The Swiss Militia was always about collective self defense, and it is illegal to even open your box of ammunition for any purpose other than defending Switzerland.

The militia under the US Constitution is also collective. However, the right to join the militia and to keep your militia arm at home is an individual right.

I am aware of the restrictions currently applied to Swiss Militiamen, and I do not think they would violate the Second Amendment if such a system were in place here, so long as people were able to exercise their right to join the militia and keep their gun at home.

Thomas wrote:

By contrast, I see no persuasive evidence from the legislative history of the Second Amendment that it excludes individual self defense, and some evidence that it includes it.

Have you read the speeches by Patrick Henry that the Second (and Third) Amendments were meant to address? Or the debates in the House of Representatives when they were passing the amendments?

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Re: Second Amendment Poll

joefromchicago wrote:

oralloy wrote:
The first clause is a requirement that the government keep up the militia for the defense of the country. The second clause protects the right to keep arms at home and bear them in the militia.

So you'd agree that an individual's right to bear arms is tied to the state's interest in maintaining a militia, right?

No.

But I'd agree that an individual's right to bear arms is tied to the militia itself.

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Thomas wrote:

Please do tell us your opinion on whether the right to bear arms requires a State interest in the militia!

My opinion is that it doesn't.

I see the Constitution as requiring the state to have a militia similar to what the Swiss have. And by not having such a militia they not only violate that requirement, but they also violate the individual right to serve in that militia.

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Eva wrote:

That is how the law works in practice, cjhsa, but I feel fairly certain that the Founding Fathers would have been appalled to learn that their wording, meant to enable an organized citizen militia to fight off an invading enemy, is now being used to justify Saturday night specials and AK47s in the hands of potential criminals.

This is madness.

By Saturday night special, you mean cheap handgun???

I don't think the Framers would object to cheap handguns, and they *wanted* people to be able to have militia-type weapons, which would include a full-auto AK-47 today.

They also would not want people's rights restricted for being a "potential" criminal if they had never been convicted of any crime.

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Thomas wrote:

It nicely sums up the way state legislatures thought about this right, and how their thinking changed between 1776 and today. And since the federal government is a creation of the states, not the other way round, I think this is at least as relevant to interpreting the Second Amendment as Supreme Court interpretations are.

The most relevant text to the interpretation of the Second Amendment is the text of the Second Amendment itself. All other texts -- provincial and state constitutions, the English Bill of Rights, Blackstone's Commentaries, etc. -- are secondary. They can be instructive, but the Second Amendment's text is definitive.

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Re: Second Amendment Poll

oralloy wrote:

joefromchicago wrote:
So you'd agree that an individual's right to bear arms is tied to the state's interest in maintaining a militia, right?

No.

But I'd agree that an individual's right to bear arms is tied to the militia itself.

I'm sorry, but I don't understand your distinction. Please explain.

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joefromchicago wrote:

The most relevant text to the interpretation of the Second Amendment is the text of the Second Amendment itself. All other texts -- provincial and state constitutions, the English Bill of Rights, Blackstone's Commentaries, etc. -- are secondary. They can be instructive, but the Second Amendment's text is definitive.

That makes sense as long as (1) everybody agrees on what it means, based on the text alone and (2) the Supreme Court can be relied on to adhere to the definite language of constitutional provisions. (1) is evidently not the case, and (2) has ceased to be fulfilled either since (a) the Gilded Age, when Steven Field made it Supreme Court policy to shoehorn laissez-faire politics into the text of the constitution, or (b) since the New Deal. The choice between (a) and (b) would depend on your politics.

I might add that in other threads, you have yourself labelled Scalia, Bork, and other lobbyists for a strict interpretation of the constitution as 'reactionary', and I think 'extremist'. If I understood you correctly, you generally approve of the way the Supreme Court has stretched the constitution to push the agenda of Roosevelt's New Deal and Johnson's Great Society.

That makes it hard for me to buy your sudden conversion towards "the Second Amendment's text is definitive." (Emphasis yours.) Frankly, I doubt that you buy it yourself. But if you have an explanation for this discrepancy, I'd be very interested to hear it.

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Thomas wrote:

That makes sense as long as (1) everybody agrees on what it means, based on the text alone and (2) the Supreme Court can be relied on to adhere to the definite language of constitutional provisions. (1) is evidently not the case, and (2) has ceased to be fulfilled either since (a) the Gilded Age, when Steven Field made it Supreme Court policy to shoehorn laissez-faire politics into the text of the constitution, or (b) since the New Deal. The choice between (a) and (b) would depend on your politics.

I believe that the supreme court has rarely departed from the text of the constitution. Its interpretations of the text may have been erroneous, but the justices usually start with the text itself.

Thomas wrote:

I might add that in other threads, you have yourself labelled Scalia, Bork, and other lobbyists for a strict interpretation of the constitution as 'reactionary', and I think 'extremist'.

That certainly didn't sound like something I would have said, so I did a search of my posts. It's true that I have called Scalia a conservative as well as an "original intent" justice. On the other hand, despite many opportunities to do so, I have never called either Scalia or Bork "reactionary" or "extremist."

Thomas wrote:

If I understood you correctly, you generally approve of the way the Supreme Court has stretched the constitution to push the agenda of Roosevelt's New Deal and Johnson's Great Society.

Although I don't agree with everything the court did during those eras, I don't believe the New Deal or Great Society courts impermissibly "stretched" the constitution.

Thomas wrote:

That makes it hard for me to buy your sudden conversion towards "the Second Amendment's text is definitive." (Emphasis yours.) Frankly, I doubt that you buy it yourself. But if you have an explanation for this discrepancy, I'd be very interested to hear it.

There is no need for explanation because there is no discrepency. The constitution is the primary text upon which to base any interpretation. All other sources (such as the ones that I pointed out and which are included in oralloy's links) are secondary. The constitution, then, is definitive, the secondary sources are merely instructive or illustrative.

That is not to say, however, that the constitution cannot be interpreted. As a constitution, it is designed to be interpreted (that's what Chief Justice Marshall meant when he wrote: "we must never forget that it is a constitution that we are expounding").

Interpretation of the constitution is necessary, but the interpretation must start with the text. Placing other documents, such as contemporaneous state constitutions, on the same level as the constitutional text is simply not justifiable. Your assertion that such secondary sources are "at least as relevant" to interpreting the Second Amendment as supreme court interpretations of the constitutional text is, therefore, erroneous.

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Joe --

First of all, I checked for the relevant keywords pertaining to the characterizations of Scalia I remembered, and I hit the "Okay Dems, what went wrong?" thread, which I am involved in and you are not. That means I owe you an apology for having accused you of a flip-flop. My memory betrayed me, and I confused you with someone else. I'm sorry.

joefromchicago wrote:

I believe that the supreme court has rarely departed from the text of the constitution. Its interpretations of the text may have been erroneous, but the justices usually start with the text itself.

We may just have a semantics mismatch here. But I don't understand how the Supreme Court can start with the text itself, make an error interpreting it, and not depart from it by doing so.

joefromchicago wrote:

Although I don't agree with everything the court did during those eras, I don't believe the New Deal or Great Society courts impermissibly "stretched" the constitution.

Let me just explore this with some specific examples. Do you think it is not a stretch to say that a wiretap is not a search, so isn't protected by the Fourth Amendment, as the Supreme Court held in Olmstead vs. US? (Edit: Sorry, Ohlmstead wasn't decided by a New Deal court. My question is more directed to your earlier claim that 'the Supreme Court has rarely departed from the constitution'. )

Moreover, do you agree that when a farmer grows wheat and feeds it to his own paultry, he is sufficiently engaged in interstate commerce to be regulated under a clause saying "Congress shall have the power [...] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"? As you know, the Supreme Court answered this question affirmatively in Wickart vs. Filburn. It thereby established an unwritten quasi-rule that pretty much every law Congress might feel like passing can be construed as regulating interstate commerce, so the Commerce Clause makes the law constitutional by default. Never mind that this makes nonsense of the constitution enumerating the powers of the federal government, and of the tenth amendment affirming that the federal government has no other powers besides those enumerated.

joefromchicago wrote:

Interpretation of the constitution is necessary, but the interpretation must start with the text.

I agree. My intended point was about how other documents affect the end of the interpretation, not the start of it.

joefromchicago wrote:

Placing other documents, such as contemporaneous state constitutions, on the same level as the constitutional text is simply not justifiable. Your assertion that such secondary sources are "at least as relevant" to interpreting the Second Amendment as supreme court interpretations of the constitutional text is, therefore, erroneous.

I agree that state constitutions, commentaries and such rank below the text of the constitution itself. But to make your argument in this paragraph work, you must be believing that Supreme Court interpretations are somehow on the same level as the constitutional text itself. Otherwise, we are simply comparing two sets of text that rank below the text of the constitution.

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joefromchicago wrote:

I feel that the drafters of the Second Amendment should have been more explicit in specifying that the right to keep and bear arms depended upon the requirement to maintain a militia. .

The problem with the Second Amendment is the cultural environment it was drafted in. The 18th century simply had a much different and lackadaisical attitude towards who owned what kind of weapon. My favorite example is an iron foundry in Stafford Connecticut that was stuck with a number of cannon at the end of the American revolution when the government (state) canceled their contract. They simply advertised them for sale in the local newspaper. They were so expensive that the only likely buyer would be either a local government (militias were financed locally in Connecticut except during time of war) or a ship owner in the caribean trade looking for a little extra insurance.

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Acquinunk wrote:

The problem with the Second Amendment is the cultural environment it was drafted in.

Sure. It's an anachronism. But for getting rid of anachronisms is in a constitution, the right institutions to appeal to are legislatures and ballots, not the courts. You have to change the constitution by amending it, not by appointing Supreme Court judges who say that the constitution now means something different than what it said when it was written.

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Thomas wrote:

right institutions to appeal to are legislatures and ballots, not the court

The problem here is taht if left to that nothing will happen. The amendment reflect a deeply held cultural assumption in the US that the populace should be as well armed as the government. Someone once said (this was long ago and I forget who said it) that the second amendment explained ATT and Western Union (back when both were private monopolies). Unlike most European states where the telegraph/phone systems were owned and controlled by the governments, Americans left it to a private enterprise that the government could regulate but not control. It was quite possible to conspire against the government over a public communication system that the government had no control over. When Lincoln seized the records of Western Union at the beginning of the American Civil War there was a significant body of legal opinion that this was grounds for impeachment.

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Acquiunk wrote:

The problem here is taht if left to that nothing will happen.

Which, if true, would be evidence that enough people disagree with us to make it legitimate that nothing happens. Tough, but no reason to reinterpret the constitution.

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Thomas wrote:

Eva wrote:
And at the last area safety meeting conducted for my merchant area, the police emphatically told the shopkeepers and restaurant employees NOT to keep guns, because they are "11 times more likely to get hurt with their own gun than (you) are to use it against someone in defense."

Did the police say where they had got this statistic from? Did they say something about how the shopkeepers owning or not owning a gun affects their likeliness of being attacked? Not really disagreeing with you on the wisdom of gun control; just curious, and somewhat suspicious of the police as a reliable source of information.

You have a point. This was said at a community forum, and no, the police lieutenant was not asked to back up this statement. Due to his longevity with the police force and considerable experience in dealing with violent crimes, he has a great deal of credibility, and we simply took his word for it. However, even if the statistics are overstated as you suggest (is it actually 8 times as likely?...6 times?...3 times?) I would still have to agree with his logic that it is not wise to keep them for defense if you are more likely to be hurt by them yourself than to use them against an attacker.

As to your question about whether the shopkeepers owned a gun affects their likelihood of being attacked...the lieutenant didn't address that exact question, but said that drawing a weapon when threatened always escalates the level of violence in a confrontation.

I didn't exactly answer your questions, but that's the best I can do. Does it help?

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cjhsa wrote:

Eeek. Gun control means knowing how to control your weapon. Sorry your folks ain't capable...

Strongly suggest you disarm them Eva, even I don't want them around....

Oh, my folks are capable alright! My father had marksmanship medals from WWII and was scrupulous about keeping his guns under lock and key. Until, of course, the night when he decided his health problems had become unbearable and shot himself straight through the heart. It was a very clean shot, I assure you. Nothing "incapable" or "uncontrolled" about it.

Of course...guess who got to clean up the mess? And figure out how to get rid of the gun so it didn't further traumatize my mother?

Sure, I know what you're gonna say. If he hadn't shot himself, he would just have found another way. That is probably true. However, the fact remains that the easiest way for him to do it was obviously with a gun. And that method was unbelievably nightmarish for everyone left behind. And that's a good enough reason for me to wish it was harder for people to get ahold of them.

And then there was last spring.

You've probably read about my hearing loss on other threads, but suffice to say that if my husband's friend HADN'T been practicing good gun safety rules by pointing a dangerous, possibly loaded weapon that he found away from people before trying to lower the hammer, no doubt someone could have been killed. I thank God he handled it as well as he could. Nevertheless, the gun went off and I lost half my hearing. Permanently, I'm afraid. My audiologist tells me he sees this all the time. If there are lots of other people going through what I'm going through simply because they were innocent bystanders, then that's another good reason I wish it was harder for people to get ahold of the damn things.

cjhsa, I really wish you could discuss this topic without insulting me or my family. That is completely uncalled-for. I don't insist that everyone share my opinions, and I don't get bent out of shape with people for thinking for themselves. Why does it make you so angry that I disagree with you?

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I distrust the statistic, Eva, but from an intuitive rather than factual basis. I keep in mind that when the police arrive on a scene with either past or potential, they definately want to be the only persons with a firearm. I don't blame them. I still don't trust the statistic.

Now, Thomas and joefromchicago are having a great discussion here, so I'll go back to just following along.

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The second amendment

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