"A Mistake a Free People Get to Make Only Once"

Last week the 9th Circuit Court of Appeals refused to rehear a case in which a three-judge panel decided that the word "people" in the Second Amendment does not mean, well, actual individuals. But six judges from the circuit have written a blistering dissent to their brethrens unwillingness to reconsider the case. An excerpt from a Washington Times account:
A barbed postscript by Judge Alex Kozinski, writing alone, said history would be vastly different had American slaves or Jews in the Warsaw Ghetto been able to arm themselves.
"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees," wrote Judge Kozinski, a native of Romania appointed by President Reagan.
"However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once," he wrote.

Comments

[joe]

Call me crazy, but I like to look at the text of the Constitution first when there's a question of how a term should be interpreted. Does "We the People" mean "We, each individual?" Of course not. Does "...to the states, or to the people themselves..." (10th Amendment) mean that either a state makes a law, or each individual makes up his own law? Uh, no.

"Freedom of speech, or [freedom] of the press" - things an individual can do alone. "Right of the people to peacefully assemble" - someone that can only be done in groups.

Does the Second Amendment refer to "Freedom of firearm keeping and bearing?" Why, no, it refers to "the right of the people."

The framers believed in this thing called The People, sort of the way other revolutionaries have believed in The Masses or The Volk. When they used the term "the people," they did so for a reason.

And as for the Jews in the Warsaw ghetto, they were a People. They would have had the right to bear arms under our Constitution.

Armed individuals don't overthrow governments and defend communities. Only armed groups are capable of that.

[joe]

...sort of like when Judge Kozinski refered to "a free people." He wasn't talking about a collection of free indivduals, or he would have used a plural.

[M. Simon]

Joe,

Does this mean that only a people can apply for gun permits? Like say you have to be a Jew to get a gun?

Or perhaps we can have affimative gun ownership. Like say Black or Native American gun rights.

[thoreau]

You know, it sounds all well and good to say "We reserve the right to re-enact 1776 if things ever get out of hand."

But think about what that means: Fighting in the streets. Killing people who joined the armed forces or police out of a sincere desire to defend their country or stop violent criminals. And a war will mean damage to non-combatants. It will be sheer chaos.

And who decides when things are so bad that we need to re-enact 1776? A majority of the population? A majority of gun owners? The loudest minority?

What about the citizens who think a revolution isn't warranted? If they resist, do the self-appointed revolutionaries have the right to mete out battlefield "justice" to anybody who gets in the way of the revolution? If some citizens conclude that the revolutionaries are a lawless mob rather than defenders of freedom, are they then subject to the law of that mob if they resist?

The more you think about it, the more you realize that the American Revolution was a very lucky coincidence, an event that turned out wonderfully but could have just as easily come to a bad end. Lucky coincidences shouldn't be tried twice. Ghandi and Martin Luther King are much better models for future resistance against tyranny.

[Sir Real]

the missing words?

"well regulated militia"

[Sir Real]

Thoreau-

As much as I wold like to agree with you, your chosen models have one glaring commonality- they were up against largely humanist democracies, that cared about social justice, suffering, etc... Any organization that overthrows the U.S. Government is unlikely to have those values or respond to those pressures.

To put it another way- Saddam would have had your "models" shot.

[thoreau]

I forgot to add what I think of the second amendment:

I think the second amendment is just vague enough to be worthless. Yeah, that "shall not be infringed part" seems pretty clear. But it's prefaced with the "..well-regulated militia" part. There are very few places in the Constitution where a right or freedom is prefaced with an apparent explanation of why. The fact that this one is prefaced suggests that there was a reason for it, so we shouldn't just ignore the preface. But even though I think we SHOULD figure out what it means, I personally am unable to draw a firm conclusion.

Anyway, since the Second Amendment seems in need of clarification, here's what I would want to see in the Constitution if I had the luxury of writing it (which thankfully I don't):

"The right of self-defense being necessary to the security of free people, the right to keep and bear firearms and other personal weapons for defense against force, theft, and violence shall not be infringed, except as punishment for violent crimes of which a person has been duly convicted by a jury after a fair trial. This shall not be construed to deny a private property owner the right to bar weapons of any sort from his or her premises."

See, I firmly believe in the right of self-defense against crimes (anybody whose mother has lived in fear of a violent ex would feel the same way), but I don't have a very high opinion of _initiating_ violence via revolution (as explained in my previous post). So the language I propose would protect that right, but it couldn't be used to justify armed rebellion (see my previous post for an explanation).

[jarod]

>...sort of like when Judge Kozinski refered
>to "a free people." He wasn't talking about a
>collection of free indivduals, or he would have
>used a plural.

Uh, Joe ... last time I checked, "people" was the plural for "person".

>"Right of the people to peacefully assemble" -
>someone that can only be done in groups.

But a right that is exercised by an individual, who chooses to join or forego the assembly.

How about the 4th amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

Would you say that this means only groups of people are protected from unreasonable searches and seizures? I live alone; am I fair game?

[Jim]

I just don't see how the 'people' can retain a right if it isn't granted to individuals. Otherwise it's meaningless - it implies that the government has the right to keep arms, as long as it is representative of the 'people'. Governments have been arming themselves from time immemorial so as such granting that right seems ridiculous. I suppose one could argue that it means the states have the right to keep arms, presumably for defense against the federal government. Of course we've seen from the civil war how well that worked out.

Folks have been stumbling over that 'well regulated militia' line for a long time but it's been pretty well established by historians who have studied the issue that the framers of the constitution meant it as an individual right.

Yes, the idea of a bloody revolution to overthrough tyrants in power is pretty problematic - after all one could argue that our current government is pretty oppressive, and it's clear that Tim McVeigh was thinking along these lines when he killed 160 odd innocent people with a fertilizer bomb. However at the same time it can be argued that history would have turned out differently if slaves or German Jews had the right to own arms. I view it more as a defensive stance than an offensive one. You know when your life is being threatened, by individuals or government, and you have the right to defend that life. This is a little different from leading an armed revolution against others in unprovoked aggression.

[MP]

I'll call you crazy Joe..."Of course not" is just like saying "Isn't it obvious?" Well, it's not obvious. Akhil Reed Amar's excellent book "Bill of Rights: Creation and Reconstruction" delves into this topic quite deeply. There is even discussion of People vs. people (note the case).

The Tenth amendent simply states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people." It has nothing to do with the creation of law by States or the people. It just tells Congress that they can't do dick unless the Constitution says they can. Too bad this was eviscerated by overly broad interpretations of the Commerce clause and General Welfare clause.

I haven't read the opinion thoroughly, but essentially they reference their own 1996 opinion that says that the 2nd amendment is a collective rights amendment. Without reading that opinion, I can't criticize their argument directly.

I can say that, IMHO, the collective rights argument is bullsh*t, that the 2nd amendment was added to keep the feds from outlawing individuals (in groups, by themselves, whatever) from having weapons, and that the 14th makes it apply to the States as well.

[Neb Okla]

You can read the full text of their comments here:
http://www1.law.ucla.edu/~volokh/blog_data/silveira.pdf

[Lazarus Long]

joe: I read the Federalist and I got the impression that the "People" referenced were not an abstraction but just another word for a "group of individuals who are not the Government"

[Neb Okla]

joe: You said "Does "We the People" mean "We, each individual?" Of course not."

As if in preemptive response, Circuit Judge KLEINFELD said:
The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, ?the people,? as
conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all
the rights the Constitution guarantees to ?the people,? including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment?s
protection of the right of ?the people? to be secure against unreasonable searches and seizures, or the right of ?the people? to freedom of assembly, but times and personnel
change, so that this right and all the other rights of ?the people? are jeopardized by planting this weed in our Constitutional
garden.

The panel?s protection of what it calls the
?people?s right to bear arms? protects that ?right? in the same fictional sense as the ?people?s? rights are protected in a ?people?s democratic republic.?

[Lazarus Long]

thoreau: It is probably easier to just walk yourself into the gulag, but not as healthy. MLK in North Korea would be shot and his family billed for the bullet. The cynic in me says this just another example of anti-war equaling pro-tryanny.

[Croesus]

American slaves did arm themselves - a few hundred thousand joined the Union army and took it to their former slaveholders. Many historians view this as the second successful slave revolt in the Americas - the first being in Haiti. 🙂

[Shady O'Grady]

Doomsday is not the first place we need to enact the 2nd amendment. The 2nd amendment is the understanding that the individual alone has the final responsibility for protection and self-preservation. Whether that protection be from a knife weilding intruder or an evil government needs to be taken up on a case-by-case basis.

[wqbang]

"A well-educated electorate being necessary to the prosperity of a free state, the right of the people to keep and read books, shall not be infringed."

[Brad S]

My own personal view, FWIW, is that the Founding Fathers fully recognized that the American people could eventually find themselves victims of a tyrannical bully, just as they were at the time. In these circumstances, the Founding Fathers wisely did not want the people to be utterly defenseless against this tyrannical government. The 2nd Amendment, as I read it, is essentially a last line of defense against tyranny. To disarm the people would be to take away this last line of defense and render the people much more vulnerable to tyranny.

Now, that's not to say that there aren't people out there who will misuse this right. Rights, by their very definition, can be misused. I have Freedom of Speech guaranteed to me by the Constitution, but that doesn't mean that it is right to say every single thing that comes to my mind. I have the right to a speedy trial before a jury of my peers, but that doesn't mean I seek out instances where I can break the law and go to trial. I have the right to peacefully assemble with others and protest, but that doesn't mean that I seek out every last opportunity to protest something that I don't like. Similarly, I have the right to bear arms, but that doesn't mean that I SHOULD bear arms, or that I am in any way necessarily better off if I bear arms. The right, as given me by the 2nd Amendment, simply tells me that I can.

[thoreau]

OK, my models of non-violent resistance would fail in a place like North Korea or Iraq. But, three points:

First, in a place like the US, a totalitarian state will not emerge unless we allow it to happen. Even though our Constitution is frequently violated, it is still largely in effect, and it's up to We the People (you can interpret that collectively, individually, or any other way you like) to protect the Constitution. Non-violence is the only morally acceptable way of doing that.

Second, if enough people take to the streets all at once, weapons become unnecessary. Ferdinand Marcos and Slobodan Milosevic come to mind as examples. Neither of those leaders were overthrown without any violence, but the level of violence was far less than what we saw in 1776.

Third, Communism collapsed in Eastern Europe under its own corrupt weight, with the aid of non-violent dissidents. Yes, they took risks, yes, many dissidents died. But they still did it without war. There are lessons to be drawn from that.

And remember, the person who elevates himself to the rank of "revolutionary leader" has taken upon himself the power to kill any civilians who resist him. That is true whether they are motivated by support for the corrupt regime or suspicion of the self-appointed revolutionary.

[Russ]

Joe,

If only a group of "people" have the right to keep and bear arms, but no individual in that group can do so, just how is that right to be exercised?

[Brad S]

To finish my earlier thought, the Founding Fathers wisely believed that it is better to give people rights and have them misuse them on occasion than to not give the people rights in the first place. In other words, it is not our job as the government to protect people from themselves. Just give the people freedom, and by and large let them do with it what they may. It's better to have people who sometimes say foolish things than people who are not free to say these things in the first place. It's better to have people who will sometimes misuse firearms than people who are unarmed and completely vulnerable to tyrannical government. Guarantee people these freedoms, then leave them the f**k alone. That was the way the Founding Fathers envisioned things. Of course, our government's modus operandi has changed considerably over the ensuing 227 years. Today's government wants its hands in everything and wants to take away our freedoms and civil liberties all in the name of saving us from ourselves.

[Neb Okla]

thoreau: You said, "Second, if enough people take to the streets all at once, weapons become unnecessary. Ferdinand Marcos and Slobodan Milosevic come to mind as examples. Neither of those leaders were overthrown without any violence, but the level of violence was far less than what we saw in 1776."

Well, if the colonists had modern day US air power backing them (just as Milosevic's ousters did) then we would have seen less violence in 1776.

[Lazarus Long]

thoreau: You are not entirely accurate with your history of Communism. Armed force did occur and some of the reveloutions were boody (Romania). And the US ARMED Forces swear to protect the Constitution by violence. Are they acting immoral? Lastly, Milosevic was quit and was then violently arrested; Marcos was quit when the military defected.

[Croesus]

Lazarus:

Milo lost an election actually.

[Croesus]

Lazarus:

At the point of a NATO bombing campaign, and Clinton finally threatening boots on the ground. The Germans would have loved some payback for WWII. 🙂

[Croesus]

Having weapons is neither neccessary nor sufficient to hold off a tyrannical government. Gun ownership is common throughout Latin America, for example, yet that has not stopped any number of tyrannical bastards from taking over.

[Jim]

Thoreau's case for non-violent protest also falls apart in cases such as slave rebellions and the German erradication of the Jews in Germany and Poland. If the majority backs something evil against a minority, there may not be enough people to march in the streets effectively against the government or the majority of the population. Like I said before one could view this as a defensive right, that you have the right to shoot back when they show up at your door to drag you to the concentration camps, but not the right to commit acts of terrorism against individuals who have not directly threatened you.

As Shady suggests, we should look at this on a case-by-case basis, because it would be hard to argue that revolution against (or merely violent resistence against) government authority is never morally justified, but every common criminal who shoots a cop to keep from being imprisioned is not a 'freedom fighter' either. One case that may be interesting to discuss is drug dealers who use violence to resist law enforcement. Here, their rights are clearly being violated and they would be defending themselves against those directly oppressing them. If this situation sounds distasteful to you, consider why. Is it the fact that most drug dealers are common criminals who would shoot anyone anyway and are not doing so in strict defense of their rights to engage in voluntary commerce (of course this situation alone is also a product of government intervention since legitimate businesses shy away from illegal activity and criminals are attracted to it)? Or would a hypothetical group of 'freedom fighter' armed drug dealers still smack of a terrorist organization even if they never targetted non-government agents? Maybe it's because the right to use and sell drugs isn't as important as the right to life itself and doesn't seem worthy of commiting murder to protect (I'm going with this one myself).

Another way to look at the issue of an armed populous is simple deterrance. The government would not dare push too much to do away with democracy and establish tyranny if it knows it can't completely subjugate an armed population. Kind of like a decentralized nuclear deterrance approach.

[Jim]

Croesus:

I'm willing to bet that in those heavily armed Latin American countries, the government's actual influence and control may be less universal that it is here in the US. Kind of like the situation in Afganistan, where many armed warlord groups throughout the country never recongnized the Taliban and probably still don't recognize the new puppet government we set up there either. It's true we don't want to look at those situations as a model to aspire to but it shows that when people are armed it limits the government's ability to control the population.

[Lazarus Long]

Croesus: I buy 50% of this...

>>Having weapons is neither neccessary nor sufficient to hold off a tyrannical government.

[joe]

Jarod,

People can be singular or plural. "Those people" is clearly plural. "A people" is clearly singular (check the article). "The people" can be read either way, as "the individuals" or "the group/populace/volk/etc." The founders clearly saw groups of people as having singular identies, as with the People, or a faction.

But you are right, the use of identical language in the Fourth Amendment (obviously refering to individuals, given the language about specific places and items) seems to invalidate my textualist reading. So much for the breakthrough, back to trench warfare.

Jim,

"I just don't see how the 'people' can retain a right if it isn't granted to individuals." The people in general (the masses, say) have the right to be armed, in order to stave off tyrants, wage war against Injuns, and all the other reasons why the founders thought we needed bands of civilians wandering around with guns. Though the government can deny this right to certain individuals, it cannot pass any law that would have the intent or effect of disarming the masses as a whole.

[Croesus]

Jim,

Largely depends on the government. What tended to happen is that the government would wield much of its authority through local strongmen (paternalism at its finest), or through favored corporations. The archetype of this is the "Porfirato" (named after Porfiro Diaz) in Mexico, where the government, along with corporate Mexico, re-instituted quasi-slavery. Admittedly, the Mexican's eventually threw off thhis tyrant during the Mexican Revolution (1911-1917), but this had less to do with the fact that the population was armed, and more to do with the will of the armed to bring down a regime that was already collapsing under its own weight.

What causes revolutions, and the like, has been a much studied subject, and I am not about solve this issue here, but access to guns is not their primary cause I can tell you that.

[Phil]

To all those who fetishize the words "well-regulated" militia, you are aware that:

1) According to U.S. law, EVERY able-bodied person between 18-49 who is not a member of the Armed Forces or National Guard is considered to be "the militia," and that

2) "Regulated" does not -- particulary in its 18th Century sense -- mean "subjected to a bunch of rules," it means "organized," which could be a legitimate argument for a Swiss-style system of mandatory ownership and training.

You do know those things, right?

[Croesus]

Lazarus,

I would say that if they are a factor, the a minor one. Guns are just material objects. Human beings do shit with material objects, not the other way around. Revolutions, and the like are human-made and caused events.

Hey, do you like Icicle Works?

[Sir Real]

So, if we are allowed to maintain personal arms for self defense, are we also entitled to pre-emptive self-defense? These documents PROVE you're an immediate threat...

[Lazarus Long]

>>but access to guns is not their primary cause I can tell you that.

[Russ]

People have the right to overthrow the government simply because they can (if the opposition is strong enough). Better for the government to actually be aware of such a possibility to make sure they govern to the will of the individuals inhabiting the country as best they can than to delude itself with hubris. That's not to say we need a revolution, only that we shouldn't put too much stock into the idea that the word is mightier than the gun. After all, the government backs up its words with guns, not the other way round.

[Lazarus Long]

Sir Real: Yes, but since this is a fuzzy defintion we need police and courts of law to enforce. And notice that the police carry personal arms for self-defences as well.

[Brad S]

>

Bingo. There is no more concise explanation for why the Second Amendment exists and makes sense than that one right there. At the end of the day, the only means that government has to enforce its will on the people is physical force (i.e. guns). That's the bottom line.

[Croesus]

Lazarus,

I've owned firearms all my life; I never felt any "technological aesthetic" for them. They are tools, like all the other tools I use. Far more important to me are the tools and levels of government that I have access to. In other words, if you are dependent on that .357 you have to be your guarantee of freedom, then I think you are living in fantasy land. After all, its not the fact that the NRA has guns that makes them powerful, its the fact that fucking vote. 🙂

[Brett Cashman]

thoreau writes: "Non-violence is the only morally acceptable way of [assuring that the United States will never descend into totalitarianism]."

I would challenge thoreau to explain the basis of his assertion, given that:

(a) The ostensible effect of the Constitution is to guarantee, as a matter of law, the personal and economic freedoms of individuals;

(b) To abrogate those constitutional guarantees is, effectively, to violate the personal and economic freedoms of individuals; and

(c) It is axiomatic within libertarian philosophy that the use of force is, in defense of one's person or property, morally justified.

I suspect thoreau of a turn-the-other-cheek style of pacifism which has enjoyed some limited historical success in effecting social change within humanist democracies predisposed to honoring individual and economic freedoms, but is a demonstrably less practical approach to dissent the more repressive the regime (see also, Cuba, China, Iran, Iraq, North Korea).

[Croesus]

Brett,

Imperial Britian was not a "humanist democracy," and Britain didn't deal with its colonies like they were humanist democracies. People tend to forget that Indian independence was bought with much blood.

[Lazarus Long]

Well my .357 is for the crackdealer that decides he would like to jump in my car for a ride. 😉

My point is that the demonized 'gun culture' is actually a bulwark of freedom. And the tools we are referencing are different than a hammer or a car, they are created for one thing: death.

Once someone learns the terrible responsibilty that goes with it, they will be naturally more skeptical of others who claim to solve problems with violence (as in tyrannical government or terrorism) and will lessl likely be cowed into submission by thugs. Witnessing the terrible power of their weapons they will realize how stupid it is to use this power to prevent 3-year olds from eating Oreos or adults from smoking dope.

Finally, Hitler was elected by the power of the fist. His stormtroopers beat the shit out of anyone who tried to vote against him. Though guns are not the only defence against freedom, they are not necessary either for tyranny. I doubt a brownshirt would've beat anyone with a .357

[Jim]

Joe,

Your interpretation of the collective right of the people is basically the same as the libertarian's concept of an individual right. My point is that the only way 'the people' can really be a collective entity is through government, and it is not sensible to state that the government retains the right to armaments since one of its primary purposes is to use armaments to defend its people.

Also, I spent a lot of word space attacking Thoreau, but I would like to point out that when we do in fact have a democratic government and one has the right to free speech and protest of the existing government, resorting to violence is probably not morally justified, except in really extreme life or death type circumstances.

You must remember that the collonists were denied the right to vote on elections to British parliament that issued laws and taxes that effected them. They did not in fact live in a democracy. I think they just anticipated that under some extreme circumstances we might need to take up matters by force.

Croesus,

I do think that if people are sufficiently motivated to throw off an existing government then legal access to firearms will probably not be the deciding factor. Note that I said 'legal access' because I'm sure in cases where guns are outlawed, people still find them if motivated to just as criminals aquire them even under gun control laws. However many dictatorships have thought it in their best interests to confiscate their people's guns, so what does that tell you?

[joe]

Jim,

It's not my interpretation of "the right of the people"; it's the founders'. Frankly, I think it's a little f-ed up, which is why I compared it to the idea of the Volk and made the comment about waging war on Injuns. But we're supposed to work from the ideas in the Constitution, so that's what I'm trying to do.

[Lazarus Long]

joe: Where did you get the idea that People = Volk. I have read the Federalist, and it appears that they just mean "everyone who isn't the government."

[Croesus]

Lazarus,

Well, I just don't get into gun the whole gunfetish thing. I'm not a member of the NRA, nor will I likely ever will be.

~I'll stop the worrld and melt with you...~

[joe]

Laz,

"I have read the Federalist, and it appears that they just mean "everyone who isn't the government." It's the way they wrote about the People acting in unison, as if having a single consciousness and motivation. "We the People" wrote the Constitution? No, a small segment of rich white guys wrote the constitution. Attributing it to the People is mythologizing, and creating a myth of a people all pushing for the same endss, as a historically irresistable force, as more than the sum of its (their?) parts - it just seems to echo.

Anyway, by the time of the Federalists, the revolutionary fervor had cooled somewhat, but the roots were still there.

[Lazarus Long]

joe: The Constitution was radified by the state legistlators. Yes, not all of them had to vote in favor (but all did, eventually). Yes it was only white males with property. But when they said the "people" they really meant all the people through their representatives. I am not attributing anything, just conveying what it appears they were thinking when they wrote "the people."

[thoreau]

thoreau here.

I don't have time to answer each individual criticism of my stance. So here's a general response:

I'm not suggesting that it would have been a bad idea if the Jews in Germany and Eastern Europe had been armed. I'm not suggesting all tyrannical regimes can be quickly brought down by non-violent resistance. I'm not saying that it's bloodless when people take to the streets.

I am saying it's a bad idea to have a built-in "right to overthrow the government" clause in a Constitution. Reasonable people can differ over whether that is in fact what the 2nd Amendment says, but if the 2nd amendment is indeed such a clause then it needs to be amended. If it isn't, then it's all good.

The problem with a Constitution saying "The people should be armed, just in case they need to start a revolution" is like I posted earlier: Who decides when it's gone so far that we need to start shooting instead of pursuing civil remedies? Do the citizens participating in the revolt have the right to treat other citizens as enemies if they are skeptical of the rebellion? What if the skeptics think the leaders are opportunistic thugs who will replace one tyrant with another? (A common situation around the world.)

Sure, some situations call for armed resistance. But enshrining a "right to revolution" in our Constitution is unnecessary as long as this remains a free society, and if this becomes an unfree society then a tyrant would never recognize that right. Moreover, the US is NOT EVEN REMOTELY CLOSE to a situation where violence against the government is necessary. We have plenty of civil remedies, and even if we lose those our culture is such that non-violent resistance would enjoy popular support, and no tyrant could survive if 280 million people marched in the streets.

There's a very pragmatic way to keep the door open in case of the nightmare scenario, without enshrining the dubious "right to war" in the Constitution: Protect private ownership of weapons for defense against common crimes. Maybe I'm splitting hairs: "Let people have guns, just don't tell them it's in case they need a revolution." But the "right to revolution" is the only right that can never be exercised properly in a free society, only in an unfree society. So let's not incorporate or recognize it in the Constitution. Doing so could only encourage the wrong sorts of actions.

[Billy Oblivion]

Thoreau:
'I am saying it's a bad idea to have a built-in "right to overthrow the government" clause in a Constitution. Reasonable people can differ over whether that is in fact what the 2nd Amendment says, but if the 2nd amendment is indeed such a clause then it needs to be amended. If it isn't, then it's all good.'

The second amendment is not a "you have a right to overthow the government" clause, it is a "you will NOT remove the right of the people to defend themselves.

The idea that you can *grant* a right via a constition (e.g. your right to revolt mentioned above) is odious. The bill of rights does not *GRANT* rights, it *articulates* rights, and lays barriers against their abrogation.

In otherwords we already have the right to overthrow the government as often as we need to to guarentee our rights, after all *that* is what the government is there for.

And as far as who decides--a lone gunman or a small committee of fighters are called "criminals" and targeted as such.

As the saying goes "Treason never prospers, and if it does no dare call it treason". An armed revolution of any great extent (one could claim that the problems with a couple militia groups in the 90s were an example of an aborted revolution) will not happen as long as people of moderate intellect and vigor still have access to the political system. It's when it is no longer possible to reform the system internally *AND* it becomes abusive of the people that there will be movements towards revolt.

The problem is that it's way, way to hard to wait until the government demonstrates it's getting nasty to pass out the arms. Usually that's the first thing they go after. (Which happened in 1934 and 1968).

The right of revolution is *vital* to never having to do it. As long as those who are in charge of the use-of-force monopoly believe that should they go too far, should they actually start kicking in doors in the middle of the night and imprisoning people for political reasons, then their lives and the lives of their families become forfeit, *THEN* we don't have to worry about tyranny.

It's MAD on a smaller scale. You beat and imprison my brother for carrying a " sucks" sign, I blow the back of your head off with a bolt-action .308. Simple.

Don't want violence? Don't vote for the kind of people who will put us in that state.

[Billy Oblivion]

Ok,so then I go back and actually read the story linked. We get:

"I'm Jewish. I find [Judge Kozinski?s reasoning] very offensive, and it does history a discredit," said Mr. Nosanchuk, litigation director for the Washington-based Violence Policy Center. "In these times we defend ourselves with freedom of expression and a free press. The idea that we have to be armed to fend off another Warsaw Ghetto uprising is completely contorted."

Read that again.

It does history a discredit.

The idea that we have to be armed to fend off another Warsaw Ghetto Uprising is completely distored.

Just which side of the fight does he plan on being on?

F***ing idiot.

[thoreau]

Billy:

Without discussing the merits or demerits of Mr. Nosanchuk's position, I would like to defend his phrasing, since I often put my foot in my mouth.

He probably meant "...to fend off THE NEED for another Warsaw Ghetto uprising" or "...to fight in another Warsaw Ghetto uprising".

I'm not suggesting in this post that Mr. Nosanchuk's actual positions are right or wrong (see my other posts for that), but since I've made more verbal gaffes than George W. (and in only half as many years, being only 25), I want to give him the benefit of the doubt on his phrasing.

[thoreau]

Billy:

On the subject of whether one can say the Bill of Rights "grants" a right, I agree that the best interpretation of the Bill of Rights is as a limit on the government's powers, not as a bestowal of rights for the people. At best, the Bill of Rights can recognize a right, but it cannot bestow it, because anything given can be taken away.

In that light, two things become clear:

1) Some of my phrasing earlier was rather poor, if I hinted that the 2nd amendment bestows rights. (As I said in my post defending Mr. Nosanchuk, I've made more gaffes in 25 years than W. has made in 50 or so).

2) The notion that the 2nd amendment grants a right of revolution is a misinterpretation. The 2nd simply says the gov't can't deny people the right to keep and bear arms (although that "well-regulated militia" part is still there, which is why clearer phrasing would be nice in an ideal world).

However, some people in this thread seem to suggest that the 2nd amendment contains an implicit recognition of the right to overthrow the gov't. As I've argued before in this thread, this "right to revolution" is an extreme measure that can never be properly exercised in a free society, only an unfree society. Since the Constitution is essential to the fabric of our free society, the Second Amendment cannot and does not recognize a right that cannot and should not be exercised in a free society.

Anyway, the Second Amendment does one or two things: It authorizes the National Guard (the "well-regulated militia") and/or protects private gun ownership ("shall not be infringed"). Since the wording is somewhat confusing IMHO, it needs some clarification. I propose the following:

"The right of self-defense being necessary to the security of free people, the right to keep and bear firearms and other personal weapons for defense against force, theft, and violence shall not be infringed, except as punishment for violent crimes of which a person has been duly convicted by a jury after a fair trial. This shall not be construed to deny a private property owner the right to bar weapons of any sort from his or her premises."

[Billy Oblivion]

"""
Anyway, the Second Amendment does one or two things: It authorizes the National Guard (the "well-regulated militia")
"""

You probably won't believe me when I tell you this, but no, it doesn't.

Federal statute *CURRENTLY* defines every man between the ages of 17 and 45, and every woman in the National Guard as a member of the milita.

The "National Guard" (which IIRC didn't even exist until the 20th century) was not authorized by the 2nd amendment. The existence of a *FEDERAL ARMY* is provided for in earlier sections of the constitution, and it is acknowleded that states may establish their own organized (as distinguished from well regulated) militias, and that the federal government may from time to time call on those militias. In fact, if you look at the structure of the modern (or contemporary if you prefer) National Guard, it is along those very lines. Each state has their own NG units organized according to the needs and dictates of the Feds, but answerable to the Governor of the state until such time as they are "federalized" by the President.

"""
and/or protects private gun ownership ("shall not be infringed"). Since the wording is somewhat confusing IMHO, it needs some clarification. I propose the following:
"""

The wording is about as clear as it gets.

I'll grant you that the idiot from the VPC may have mis-spoke, but from other crap that organization has promulgated in the past, I'm not going to cut him any slack on it. IMO if it's a slip, it's a freudian one.

[joe]

One more point for Thoreau: "Revolutionaries" have done more to extinguish people's rights, and people's lives, than any other group in human history. Revolutionaries, be definition, do not limit their violence to fendng off assaults on their rights; they overthrow one government through violence, set up another government through violence, and then set out to defend their revolution through violence.

So let's drop this romantic vision of revolution as the people marching happily through the streets in freedom. Revolution means no one is on the streets, because the gunmen are shooting anything that moves.

[Jim]

Joe,

I do agree with you that your scenario describes the typical 'revolution', but what about the American revolution? Were we just a bunch of armed thugs who killed all that opposed us (including other Americans) to set up a tyrannical government? Somehow I don't think so.

I'm not sure this affects the point of debate right now, that revolutions are sometimes justified, just because a lot of them that happen aren't. But I think Thoreau has a good point in that they can only be justified in an unfree society. It seems unfortunate that in those unfree societies that revolt they only seem to want to establish another unfree society.

[joe]

Jim,

Once theory on the American Revolution: it wasn't really a revolution. It didn't change the established order significantly, just the figures running it. We still had governors, capitalist international traders and plantation owners running things, elected parliaments, etc.

"I'm not sure this affects the point of debate right now, that revolutions are sometimes justified, just because a lot of them that happen aren't." Whether or not a revolution is justified, and whether the tactics employed by revolutionaries are moral, are two different issues.

[Xmas]

Actually, I thought that "well regulated" meant "well equipped". In the same way that the word "regulations" in the phrase "rules and regulations" is the description of the necessary equipment. And the same way that a "Regular" army is comprised of a standard set of equipment and an "Irregular" army is a bunch of guys with whatever equipment they can get their hands on.

[John K.]

There appears to be some lack of clarity regarding what happened in Serbia:

The results of the election showed that Kostunica won over Milosevic. Milosevic tried to void the results of the election.

The people went on strike, marched on the capital and attacked some government buildings. The military wisely decided to not attack their own people and Milosevic stepped down.

Whether owning guns would have made the process of overthrowing Milosevic bloodier or easier is open for debate.

[Kevin Carson]

The "people" the cops are obligated to "protect and serve" doesn't refer to actual individuals, either. You'll find that out if you ever try to use 911 as a self-defense technique.

[Rose Michael]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://preteen-models.biz
DATE: 01/21/2004 06:45:47
Only when we have nothing to say do we say anything at all.