Why Is the Second Amendment Weaker in New York Than It Is in Texas?
Jacob Sullum | June 12, 2007, 7:50pm
Rudy Giuliani's recent statement about the Second Amendment in New Hampshire, video of which Dave Weigel posted earlier today, is the clearest summary of his position I've heard so far. But I still have a few questions:
Giuliani says the Second Amendment protects an individual right to bear arms, but that does not mean all forms of gun control are unconstitutional. Just as some restrictions on speech (a ban on fraudulent advertising, say, or time, place, and manner rules for political rallies) are consistent with the First Amendment, some restrictions on gun possession and/or use are consistent with the Second Amendment. So far, so good. But then Giuliani says that what counts as "reasonable limitations" on Second Amendment rights varies from place to place, depending on local conditions. Presumably he means that a city with a serious homicide problem can more easily justify stringent gun controls than a city with hardly any crime. But the main example he cites is Texas vs. New York state, a comparison where the relevant difference appears to be cultural rather than criminological, since big cities in both states have comparable problems with violent crime. I don't see why the fact that Texans are more inclined to support gun rights than New Yorkers are should make a difference in the constitutional analysis.
And if variations in crime problems are the main justification for variations in gun control across jurisdictions, it's puzzling that Giuliani says he agrees with the U.S. Court of Apeals for the D.C. Circuit that Washington's gun ban violates the Second Amendment. D.C. consistently ranks near the top among cities with the highest homicide rates, and its gun law is only somewhat stricter than New York City's, which Giuliani supports.
Giuliani also seems confused about which aspects of the law the D.C. Circuit ruled unconstitutional. He refers twice to restrictions on "concealed weapons" (i.e., guns carried in public) that were found to be excessive, when the decision actually dealt with the rules that make it legally impossible for the vast majority of residents to keep guns in their homes for self-defense.
Other Matt | June 13, 2007, 4:30am | #
You see, the purpose of the 2nd amendment is not to keep the military EQUIPPED, it is to keep the military REGULATED.
Actually, "well regulated" as used in the day is more akin to "well behaved" or "well disciplined". So, it really reads "a well behaved group of gentlemen", as women were not part of the militia unless they really wanted to be as later codified. By the way, the comma was absent also in the original drafts, which eliminates the prepratory phrase crap.
Its not politically correct these days to speak of this, but the second amendment is not about hunting, its not about sporting, it is about keeping a check on a potentially tyrannical government.
Actually, that's the current standard of legal thinking.
Is an "arm" anything I can carry? Hand grendade? Or just firearm of some sort (that makes sense)? Anybody know of any good legal treatment on this very subject?
The standard used by the Miller case (which is quite misquoted, but I digress) was a "militia weapon". They came up with a sawed off short barrelled shotgun not being a "milita weapon". Actually, what they came up with is "we don't have any data to let us say it is", because the plantiff booked and wasn't there.
Anyway, along this line of thinking, artillery men were required to have certain articles, but not the cannon. Everyone was required to have a rifle (musket, at the time).
There are those that argue that a militia would require any weapon that a modern army would. This is perhaps true, but at the time of writing, people weren't expected to have and maintain their own cannon, which were the "nukes" of the day. So, there was some level where individuals weren't expected to keep the weapons, only to be ready to act if called upon.
Personally with what I've read, anything up to and including fully automatic arms are within that definition. I can't justify it constitutionally as I don't take Rudy's liberties with the written text, but I really don't have a problem with an instant check. I do have a major problem with waiting periods, firearm owner licenses, and other convolutions designed to harass firearm ownership. I have the same objections to such restrictions involving prior restraint in regards to the first amendment.
LarryA | June 13, 2007, 3:29pm | #
From Giuliani’s video, the first statement. "New York City might be a state where you wouldn't allow the Second Amendment to be enforced."
So if New York City or State wants to shut down newspapers, set up a state church, and suspend trial by jury that's just reasonably restricting individual rights?
Note to Giuliani: Keep your "but" off of my Bill of Rights.
Besides the fact that if any other licensing system produced the same blatantly discriminatory results as the NYC gun license system every civil rights organization available would be filing lawsuits.
As it should be, when you need self defense you should call the police.
Absolutely. Right after you get out your handgun. That way when they arrive they can chalk outline the criminal’s body instead of yours. The Virginia Tech. students waited for police, who responded in really good time, 8-9 minutes. Thirty one people died.
Why does the 2nd Amendment protect the right to CONCEAL a weapon? I don't believe it does. You have the right to carry a weapon, you don't have the right to sneak up on me with it.
1. It isn’t our choice. States are requiring concealed carry primarily so anti-gun types won’t wet their pants every time they see a licensee.
2. I personally would rather carry concealed because then I won’t be the first one taken out when the bad guy shows up. Concealed carry provides more deterrence because the person planning the crime doesn’t know if or who is carrying.
And if I run a business that is a potential target, like a jeweler, don't I have the right to refuse entry to someone I see carrying a weapon?
Sure. In most states simply post a sign. But you’re making your business less safe, not more.
Carry it in plain sight and I can assess if you are a threat.
The people who are threats aren’t going to carry in plain sight regardless of the law. You are only restricting those who carry legally, and historically are less of a threat than those who don’t carry. See the chart at
http://www.txchia.org/sturdevant2000.htm.
So do you really think that average of 807 annual workplace homicides were committed all by people openly carrying their weapon or primarily by people who concealed that they were carrying it into work?
Actually, virtually all of the workplaces where there were such events prohibit employees bringing firearms onto company property. The person causing the problem was in violation for bringing the gun. Why would it make any difference if he was breaking the law against concealing it? See the recent shooting in Virginia Tech’s “gun free zone.”
Besides, a good portion of these incidents involved someone with a shotgun or rifle, which obviously wasn’t concealed.
The only advantage concealing a weapon allows is that you can approach someone without their being aware that you are a threat to them.
The other advantage concealing a weapon allows is that a criminal can approach someone without being aware that they are a threat to him. Until it’s too late.
