Guns

The Long and the Short of the Second Amendment

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If you, like me, were wondering how support for the D.C. gun ban can be reconciled with the belief that the Second Amendment protects an individual right to arms, you might want to check out Harvard law professor Laurence Tribe's op-ed piece in today's Wall Street Journal. Tribe, who switched to the individual-right view of the Second Amendment several years ago, nevertheless urges the Supreme Court to uphold the D.C. law when it considers the case later this month. He says the Second Amendment does not guarantee "an absolute right to possess the weapons of one's choice" and so does not rule out a handgun ban. "Under any plausible standard of review," he writes, "a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms. "

Tribe ignores another aspect of D.C.'s gun law, the provision requiring that even long guns be kept "unloaded and disassembled or bound by a trigger lock." That requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. But Tribe has another argument against accepting the D.C. Circuit's conclusion that the gun ban is unconstitutional:

It would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government's uniquely powerful role as governor of the nation's capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.

Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.

In other words, the Second Amendment, which says "the right of the people to keep and bear arms shall not be infringed," simply does not apply in the District of Columbia. So I guess we can forget that part about handguns vs. long guns.

On a blog devoted to the D.C. gun case, Alan Gura, one of the attorneys representing plaintiff Dick Heller, seems surprised by Tribe's position:

This is quite a change from Prof. Tribe's position in May 2007. At that time, in correspondence with us, Tribe said he would consider playing a "more central role" in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center. It's difficult to see how his current position would accomplish that goal.

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  1. Is it just me, or does it seem as if mainstream liberals have kind of shrugged off the gun control issue?

    My liberal friends who oppose guns are usually pretty apathetic and tepid about the issue, and my far-far-left anarchist friends openly support gun ownership.

  2. I gotta hand it to Tribe on the DC thing. There are other rights that don’t apply to DC residents, so why wouldn’t the 2nd be one of those?

    I want the DC ban struck down, but that’s a damn clever argument in its favor.

  3. It would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government’s uniquely powerful role as governor of the nation’s capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.

    This seems like an odd reading of the 2nd Amendment.

    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.

    I don’t see the “this only applies to states, not DC” clause that Tribe states is the clear intent of this amendment.

    Furthermore, regardless of whether or not Congress is the “governor” of the nation’s capitol, any laws passed for DC still have to comply with the Constitution.

    Unless Tribes position is that the Bill of Rights doesn’t apply to DC.

  4. Ha! So, his argument is that since the District is a federal protectorate, the Bill of Rights doesn’t apply? So, the DC Council can feel free to pass unconstitutional law of any sort, since, by this argument, the individual rights in the Constitution are no more relevant to the citizens of the District than they are to “citizens” of Fort Knox.

  5. [i]”The Right of the People to keep and bear arms shall not be infringed.”[/i] has got to be one of the most simplistic statements in creation. Can’t do it. No limitation. The forefathers knew if the people of this country weren’t armed to the teeth, the Government would stand on their neck. They’ve been doing it covertly since WWII. Let them take all our guns and they’ll start doing it overtly.
    The fuzzy bunny people think the guns are the problem. Guns are just a tool, like a powerdrill or an pneumatic flangdoodle.
    Guns do not rob and kill people, people do that.
    Don’t legislate out the guns, legislate in the training on responsible use.
    If we’d spend half of what we spend locking adult up on educating kids, we wouldn’t have a country that has more convicts per capita than any other country in the world.
    More than Iran
    More than Russia
    More than ANYWHERE.

  6. Ha! So, his argument is that since the District is a federal protectorate, the Bill of Rights doesn’t apply? So, the DC Council can feel free to pass unconstitutional law of any sort, since, by this argument, the individual rights in the Constitution are no more relevant to the citizens of the District than they are to “citizens” of Fort Knox.

    Don’t cloud his reasoning with logic and consistency. This applies *only* to the second ammendment of the Constitution. Every other section, clause, and amendment of the Constitution still apply to the District of Columbia (where relevant — as an entity that is not a state). DUH

  7. There are other rights that don’t apply to DC residents, so why wouldn’t the 2nd be one of those?

    Name one right that doesn’t apply to DC residents.

    I want the DC ban struck down, but that’s a damn clever argument in its favor.

    I find this argument beyond parody.

  8. [i]”The Right of the People to keep and bear arms shall not be infringed.”[/i] has got to be one of the most simplistic statements in creation. Can’t do it. No limitation.

    Of course, the “A well regulated militia being necessary to the security of a free State” part adds a certain level of ambiguity to the statement.

    I support the right to bear arms fully, but I think the phrasing of the 2nd amendment is vauge enough that people looking to regulate guns have enough wiggle room to do so at least partially.

  9. I mean really, if you where to pull 100 random people off of the street who have never heard of the 2nd amendment before and read the amendment to them, do you think that even 10 people would say the same thing?

  10. So his argument is black people deserve no gun rights?

  11. “Under any plausible standard of review,” he writes, “a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms. “

    What about really small people? Frail people? People who’ve lost an arm?

    I think there should be an “undue burden” test. The RTKBA means certain things – the right to hunt, the right to defend yourself, yadda yadda yadda – and the law can’t impose an undue burden on people’s ability to avail themselves of those things.

  12. Jonathon Hohensee,

    I think there are two things going on:

    1) the reduction in crime since the late 80s/early 90s had made all sorts of anti-crime issues lose their zing. See the whimper created by the Bush Justice Department trying to scaremonger over the shortening of crack sentences.

    2) gun control didn’t work.

  13. …. less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms…

    Hell, that’s exactly what we did in Tombstone. We didn’t say they couldn’t own a handgun, just that they couldn’t bring ’em into town.

    Them boys just wouldn’t lissen to reason, so we shot ’em all.

  14. Ha! So, his argument is that since the District is a federal protectorate, the Bill of Rights doesn’t apply?

    Wasn’t that essentially the city’s argument?

  15. My reading is different. People often ignore the “A well regulated militia being necessary to the security of a free State” part which I agree does as some ambiguity.
    If a State is different from the republic, the State bein the modern connotation of state, say like Vermone, then, to me, the purpose of the 2nd amendment to was so that states cold protect themselves from the republic.

  16. the purpose of the 2nd amendment to was so that states cold protect themselves from the republic.

    Further evidence for this position can be found in the multitude of early drafts of the Bill of Rights that say “the right of the states to keep and bear Arms, shall not be infringed.”

  17. I think it just means that every society needs a military for security, and that a militia was the only military acceptable to a free society.

    The Founders did a better job than most revolutionaries in avoiding the utopian trap, but their opposition to a standing army is a notable exception.

  18. Further evidence for this position can be found in the multitude of early drafts of the Bill of Rights that say “the right of the states to keep and bear Arms, shall not be infringed.”

    Noted, but then, the fact that they changed “states” to “people” means something.

  19. I was joking.

  20. Troy,
    Your reading pretty much goes along with those who call the Civil War, the War of Northern Agression.

    Perhaps the South should sue the federal government for violating their 2nd ammendment rights.

  21. I don’t get the ‘DC’ special case. Are we to also assume that the other 9 amendments in the Bill of Rights don’t apply fully? Tribe can’t possibly suggest that.

    No I haven’t RTFA.

  22. There are other rights that don’t apply to DC residents, so why wouldn’t the 2nd be one of those?

    Fluffy, what rights are those? See my question above.

  23. Sorry you got got, joe. I seem to fully agree with your position on the Second.

  24. Perhaps the South should sue the federal government for violating their 2nd ammendment rights.

    Article IV, Section 4 seems much more relevant…

    The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion

  25. Ha! So, his argument is that since the District is a federal protectorate, the Bill of Rights doesn’t apply? So, the DC Council can feel free to pass unconstitutional law of any sort, since, by this argument, the individual rights in the Constitution are no more relevant to the citizens of the District than they are to “citizens” of Fort Knox.

    So what goes in D.C.?

    Warrantless searches?

    A municipal church?

    Poll taxes?

    Racial segregation?

    Slavery?

  26. He says the Second Amendment does not guarantee “an absolute right to possess the weapons of one’s choice” and so does not rule out a handgun ban.

    So Congress, under the First Amendment, could shut down television news as long as there were newspapers available? And then they could require you to keep the newspapers rolled up so they were impossible to read?

    “Under any plausible standard of review,” he writes, “a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.”

    This would be a much stronger argument if Tribe could cite examples of cities that ban handguns and have a low level of urban violence.

    As it is, the D.C. argument seems to be:

    Our ban is reasonable gun control.

    A law prohibiting people from protecting themselves against home invasion is not “reasonable.”

    Protecting you is what the police are for.

    Check the Buckeye Firearms Foundation brief. There are some good cops in the District, but the police force sucks, 911 is a joke, and D.C. has gone to court to prove that police are not there to protect citizens.

    Well, actually there’s an unwritten rule authorizing you to defend yourself. If you illegally assemble your firearm, illegally load it, illegally carry it out of your bedroom, and shoot someone who is raping and murdering your family, we might not prosecute.

    Bernard Goetz. Been There Done That.

    Well, even if this is an individual civil right SCOTUS should let us have our ban to keep our crime rate low.

    You have got to be kidding. Have you looked at your crime rate lately?

    The District’s case fails the giggle test.

    People often ignore the “A well regulated militia being necessary to the security of a free State” part which I agree does as some ambiguity.

    Who would know more about the militia than retired generals, admirals, and command sergeants major covering every branch of service including the National Guard? See what they say. (Link above)

  27. an absolute right to possess the weapons of one’s choice

    When you hear someone talking about an absolute right, you know they are trying to BS you.

    No right is absolute – otherwise my right to the free exercise of religion is being infringed because I can’t sacrifice virgins to the fire-gods.

    My right to free speech is infringed by libel and slander laws and not being allowed to falsely yell “fire” in a crowded theater.

    This is nothing but absolute nonsense.

  28. 1) it says keep and BEAR. you could make a (bad) argument that DC ban doesn’t unduly infringe on the “keep” part (not really, but you get my point). but BEAR means to carry. in dc, you can’t carry a handgun, a rifle etc. , so it still doesn’t pass the smell test.

    and note that transport (unloaded in a locked container) =/= “bear”

    bear means to carry on your person

    2)

    as for the whole milita thang. it is not dependant, subordinate or anything else.

    it’s ablative absolute. consider an example:

    A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.

    would that mean that only “the well educated electorate” could keep and read books.

    of course not.

    note also that this language was much more common around the time the constitution was written. as prof. volokh points out *darn if i can find the link to his paper right now* several other examples of this type of writing are given, like in state constitutions, etc.

    read that example again and tell me would you have to be part of the PEOPLE (iow anybody ) to keep and read books or the Well Educated Electorate.

    be honest, and you have your answer.

  29. Whit,

    Re: “Bear”

    The word is polysemous (hence potentially ambiguous).

    “Bear arms” was commonly used to mean serve in the military/militia. In the context of earlier versions of the amendment, this seems to be the sense that was intended.

    e.g., The version of the amendment just prior to passage read

    A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

    Importantly, after the version that passed was proposed, a proposal to add the words “in the common defense” after “bear arms” was defeated.

    As for the Ablative Absolut…it provides a context for interpretation, very useful when polysemous words may lead to ambiguity.

  30. great post!

  31. To those asking for an example of a right DC residents don’t have:

    DC residents do not have the same right to vote as other citizens of the US.

    The district government exists only at the suffrance of the Congress. District residents have no real vote for the House and no vote at all for the Senate.

  32. This post illustrates the fundamental problem with a Bill of Rights. It is wide open to any sort of interpretation. Constitutionally entrenched rights have not prevented the US from having one of the worst human rights records of any developed nation in the world, because Presidents have merely wiggled their way around the provisions with some fancy legal footwork. That’s why the ultimate protection from government must come from educating the people.

  33. “”””Bear arms” was commonly used to mean serve in the military/militia. In the context of earlier versions of the amendment, this seems to be the sense that was intended. “””

    bear – transitive verb
    1 a: to move while holding up and supporting b: to be equipped or furnished

    That is the definition the founding fathers had in mind. In order to be in a militia, the people in the militia must be equipped with a firearm.

    “””So Congress, under the First Amendment, could shut down television news as long as there were newspapers available? And then they could require you to keep the newspapers rolled up so they were impossible to read?””””

    A functioning newspaper might not be required either. It could just be blurry crap that no one could read, but it’s still a newspaper. That’s what D.C. is arguing. You can have a gun as long as it’s not functional.

  34. DC residents do not have the same right to vote as other citizens of the US.

    Voting is not a right.

    Got an example of an actual right that DC residents are denied while non-DC residents are not?

  35. “””Of course, the “A well regulated militia being necessary to the security of a free State” part adds a certain level of ambiguity to the statement.”””

    Not really. There are two statments in the 2A.
    “A well regulated militia, being necessary to the security of a free state,” This is a statement, not a right. It describes a requirment for a free state.

    “the right of the people to keep and bear arms, shall not be infringed.”

    The is the right, it says so in clear print. It’s about keeping and bearing arms, it is reserved to the people, and it shall not be infringed. Someone can kid themselves about the what bear means, but people keeping arms and the restriction on the government is pretty clear.

    The only ambiguity I can see is wondering why
    that first statment is so important that it had to be included with the right. I’ve heard it called a reasoning clause. The reason why the right, that follows the reason, exist. With that in mind let’s rewrite the amendment and see if it makes sense.

    A well regulated militia, being necessary to the security of a free state is why the right of the people to keep and bear arms, shall not be infringed. Pretty damn clear. Two different elements, 1. A reason, 2. The right.

    Regardless of the reason, the people have the right to keep and bear arms and the government is forbidden to infringe. It’s one of the most forward rights written, save maybe the 4th, but some people pretend that’s to vague too.

  36. “”DC residents do not have the same right to vote as other citizens of the US.

    Voting is not a right.”””

    Well, that’s tricky. Certainly not for the President. The founding fathers didn’t what us involved so much in that one. But you might think we would have a right to elect Congress. Here’s what article 1 section 2 of the Constitution says,
    “Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states,…”

    I would say the people of the states have the federal right to elect the legislative branch. That’s where DC loses, it’s not a state. Only states are allowed to have Senators and Congressmen.

    But who are the people that section 2 is referring? The militia? Could it be the same people that have a right to keep arms?

  37. Article IV, Section 4 seems much more relevant…

    I once had some doofus on Redstate (there’s an online community that went downhill fast) tell me there was no such Article and Section. Twice. And when finally called on it had the gall to pretend he had any right to remain in the argument.

  38. “Bear arms” was commonly used to mean serve in the military/militia. In the context of earlier versions of the amendment, this seems to be the sense that was intended.

    True enough – which leaves the question of what did they mean by “keep”? Pretty hard to argue that that meant a community store of arms. They didn’t put that word in there for no reason.

  39. A free people ought not only to be armed and disciplined but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government

  40. No man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government

  41. Given that everyone here agrees in the individual right to keep and bear arms…

    Let’s talk about “infringed.”

    If I make you sign for you gun when you purchase it, have I infringed upon your right to keep and bear it?

    If I make you sign for ammo?

    If I require you to have a background check?

    Discuss.

    Does the second only restrict the Federal government?

    Can states have requirements that are more strict?

    Discuss.

  42. your gun, that is.

  43. The Bill of Rights was tacked onto the Constitution after the Anti-Federalists twisted James Madison’s arm because they feared strong federal power and wanted to constrain it. Is that not true?

    So why would ANY of those amendments be seen as abridging personal rights in any way unless the abridgment were explicit?

    In the case of the 2nd Amendment, the effective clause is written in clear and start language: “the right of the people to keep and bear arms shall not be infringed.”

    As far as I can see, this takes the regulation of personal arms off the table — the federal table at very least.

    Constitutionally speaking, how does something that is explicitly OFF the table get put back ON the table? By reinterpretation of the language used to take it off the table until wiggle room is found? That seems to me the government’s MO in the case of the 2nd Amendment. And that’s the sheerest BS.

    Amend the Constitution to allow what you want or sit down and shut up. Your topic is currently OFF THE TABLE.

    And while you’re at it, consider that the same “reinterpret until wiggle room is found” strategy enables the pernicious and counterproductive War on Drugs. Earlier generations were wise enough to know that prohibition required a Constitutional Amendment. They passed one, and later, realizing their error, they repealed it. Apparently, a few more decades of public schooling allowed the return of Prohibition to happen without Constitutional Amendment, and without anyone raising the holy hell that their grandfathers would have raised, back in the days of the original Prohibition.

    If we don’t even know what our Constitution says, what its purpose was, and how to tell when the government is stepping over the lines that the document clearly draws in plain English, how are we to keep our Republic?

  44. TrickyVic says, “But who are the people that section 2 is referring? The militia? Could it be the same people that have a right to keep arms?”

    Unless someone can make the compelling case for a deliberate inconsistency in usage in the 2nd Amendment, we have to accept that “the people” in the 2nd Amendment are identical with “the people” mentioned elsewhere in the Constitution. Not the militia (unless we assume, as some have, that “the militia” and “the people” are synonymous).

  45. I don’t see the “this only applies to states, not DC” clause that Tribe states is the clear intent of this amendment.

    It has not been decided that the Second Amendment was incorporated by the 14th. OTOH, the Second Amendment definitely applies in DC.

    There are Constitutional Law reasons to think that 2A does NOT apply against the states, which would be somewhat bad news indeed for the gunnut contingent. My view is that more federalism equals more choices, which is cool on issues that are not slavery.

  46. Since Prof. Tribe feels that DC is a “rights free zone”, maybe he thinks that Guantanamo detainee camps can be transfered there.

  47. States (or governments) don’t have rights: They have powers granted to them. Only people have rights. Since the first 10 amendments are called “The Bill of Rights” it must therefore apply to rights of the people. If it applied to the Government, it would have been called “The Bill or Granted Powers”

  48. My view is that more federalism equals more choices, which is cool on issues that are not slavery.

    Gun control is a prerequisite for slavery. And for genocide.

    Anyone hung up on the “militia” issue really needs to read the military officers’ brief. (PDF)

    In short, experience has taught that individual ownership of firearms is an indispensable element of national security. Amici therefore submit this brief in support of respondent and urge affirmance of the decision below.

  49. Of course, we must compare to other writings of the time to come to any realistic conclusion.
    From the Rhode Island Constitution, ARTICLE I Section 20, Freedom of press:
    “The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.”
    The same construction.
    Does this refer to “Liberty of the Press” as a State collective, or, as most First Amendment scholars would insist, an individual Liberty?

  50. No right is absolute

    Except abortion.

  51. The idea that the right to bear arms is absolute is absolutely absurd. Consider the continuum of “arms”: a derringer to a thermal nuclear device. So from a constitutional perspective, should I have the “right” to a nuclear bomb? After all, it is an “arm”.

    And the District of Columbia is probably the worst place to try to decide Constitutional rights…it ain’t a state!

  52. In the Court of Appeals for the District
    of Columbia any American citizen has
    diversity standing no matter where they live.

  53. The Founders were referring to arms that could be “kept” and “borne” to the field of battle.

    In other words, conventional arms that would be expected to be in the possession of the normal infantryman. They were not referring to war ships, heavy artillery, or vast quantities of explosives. So no, a nuclear bomb is not an “arm” in that sense, and the ownership of such is afforded no protection.

    Reducto ad absurdum arguments are…well, absurd.

  54. Tribe is very confused. He is cited by both sides in Emerson to make their case. He says nothing of conscription, 14th Am. incorporation, the difference between civil society and the State of Nature which is the state of anarchy.
    http://www.potowmack.org/2ndtreat.html#94

    It all gets down to a pair of very simple questions. Lets ask these to presidential
    candidates starting with Republicans who pander to the gun vote:
    *****
    The DC Court of Appeals released an opinion on March 9 in Parker et al. v. DC Government. After many pages in which the court fabricated an individual right to be privately armed outside of any militia or military context and struck down DC’s gun control law, Judge Silberman arrived at these conclusions:

    “Reasonable restrictions also might be thought
    consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service. Personal characteristics, such as insanity or felonious conduct, that make gun ownership dangerous to society also make someone unsuitable for service in the militia.”
    http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
    p. 54
    Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability. These are the makings of a firearms policy. Do you accept and support Judge Silberman’s conclusion? Will your administration work towards a national firearms policy based on these conclusions?
    ********
    Doesn’t anyone understand this issue? Judge Silberman’s conclusion are not only the makings of a firearms policy they are a devastating repudiation of the gun lobby’s core doctrine. The gun lobby would fight viciously to defeat any attempts to implement Judge Silberman’s conclusions. The Supreme Court is not going to overturn them. The militia clauses in the Constitution, the Second Amendment, the Militia Act of 1792,
    http://www.potowmack.org/emerappc.html,
    were all about conscription and military preparedness. There are no individual rights in a conscript military organization.
    http://www.potowmack.org/index.html
    http://www.potowmack.org/5issues.html
    http://www.potowmack.org/gunviol.html
    http://www.potowmack.org/heller.html
    http://www.huffingtonpost.com/josh-horwitz/will-the-us-supreme-cou_b_87656.html
    http://www.huffingtonpost.com/ray-schoenke/oh-what-a-mighty-web-the_b_89646.html
    (My post is more than half the way down under the internet handle “GEErnst”.)

    Do we have to wait till this gets to the Supreme Court? The gun rights ideologies have
    been in the federal courts for more than thirty years.
    http://www.potowmack.org/warin.html
    http://www.potowmack.org/silveira.html
    http://www.potowmack.org/nordyke.html
    http://www.potowmack.org/emeramic.html
    http://wwwa.potowmack.org/parker.html
    Can we now at long last get politicians to answer questions that get at what is really at stake?

  55. Neu Mejican,

    I’ll take up your question.

    “The right to keep and bear arms” means certain things. It doesn’t mean, for example, the right to brandish in an intimidating manner to win an argument, but it does mean the right to use your gun to hunt, or defend your home, or keep the King of England from getting all up in your grill.

    I’ll propose a list:

    1. Self defense
    2. Home defense
    3. Hunting/birding
    4. Fighting on behalf of your country/state/community if threatened by an armed force.(Could this be used to overturn Don’t Ask Don’t Tell?)
    5. Like #4, but with a tyrannical government as the enemy.

    Now, I’m sure people could add or subtract from this, but let’s postulate that there were certain things the Founders thought that the public bearing of arms meant.

    If a law or regulation imposes an undue burden on someone’s ability to avail himself of those things, his rights have been infringed.

    So, if the government requires gun manufacturers to use a certain % of ferrous metal in the manufacture of the gun, so that it could be detected by a metal detector, someone would have to demonstrate that this regulation interfered with their ability to hunt or defend their home in order for it to infringe on their rights.

  56. And if government requires newspaper manufacturers to use a certain % of ferrous metal in the manufacture of the newspaper, so that it could be detected by a metal detector, someone would have to demonstrate that this regulation interfered with their ability to print or read the newspaper in order for it to infringe on their rights?

  57. Sure. How would the content of newsprint interfere with the ability to read or produce a newspaper?

    But, of course, your example is silly. Newsprint doesn’t commonly or historically include ferrous metal. Let’s pick something that would play the same role.

    Let’s say the feds required all paper used for newsprint to meet some standard that made it easier to recycle, but which made no difference in its usefulness as newspaper stock. Are you suggesting that it would be a First Amendment violation?

  58. I am suggesting that the government might want to add metal to newsprint so someone trying to carry a suitcase full of Wikileaks Gazette into an airport might be discovered by the watchful eyes of the Department of Libel and Sedition — just as the security strip in newer higher denomination bills makes carrying vast wads of cash trip a metal detector.

    While such a law in and of itself may not be a First Amendment violation, it enables further violations. I think that any law against guns — e.g., registration — that can later be used to violate the Second Amendment essentially violates the Second Amendment.

  59. Let’s say the feds required all paper used for newsprint to meet some standard that made it easier to recycle, but which made no difference in its usefulness as newspaper stock. Are you suggesting that it would be a First Amendment violation?

    But directly addressing your question here…

    If the new stock is significantly more expensive than the old stock, then, yes, it is a violation of the First Amendment. You are telling a newspaper printer how to print his newspaper and imposing a cost in the process. How is this not a violation of free press?

    If the new requirement is not more costly, or if it is in order to serve a compelling public interest — say, mandating unleaded inks — then I would say it is not a violation of the First Amendment.

  60. I am suggesting that the government might want to add metal to newsprint so someone trying to carry a suitcase full of Wikileaks Gazette into an airport might be discovered by the watchful eyes of the Department of Libel and Sedition

    Having a Department of Libel and Sedition that practiced prior restraint would be a First Amendment violation. Requiring detectable newspring, if there was such a department or such practices, would be a First Amendment violation. On the other hand, your “could later be used” standard is overboard. Someone can imagine a way that the standard COULD be used to violate a right? Heck, Inciting a Riot laws “could be” – and sometimes have been – used to violate free speech rights.

    If the new stock is significantly more expensive than the old stock, then, yes, it is a violation of the First Amendment. I agree, assuming the word “significantly” means something more than “perceptable.” If it would actually interfere in a meaningful way with the ability of someone to publish or buy a newspaper, without a compelling public interest, I agree completely.

  61. Let’s see… Seems like there was something called the “Stamp Act” imposed by the British to control the flow of newsprint stock and such…

  62. My concern is that as supporters of gun rights we feel pretty confident that we have ‘Reason’ on our side . However I think it likely that ‘reason’ will not be the determining factor. Remember the Supreme Court also found a right to an abortion in an emanation of a penumbra. And that banning political speech at some times by some people, did not violate “Congress shall make no law?” The posts I have read here demonstrate the marvelous ability of people to “wrest to their own destruction” texts that they want to distort. I fear the court will listen to all our fine arguments and then say. “Guns bad. England no guns. England good.” Of course they will take several hundred pages to say it in legalese.

  63. MikeP,

    So your bar on “infringe” is that you can’t do anything that might facilitate infringement, unless it “is in order to serve a compelling public interest.”

    Is that about right?

    So now the bar involves “a compelling public interest.”

    What counts as compelling?

  64. So now the bar involves “a compelling public interest.”

    What counts as compelling?

    Gross and specific danger to the common weal.

    It of course may require a cost-benefit comparison. Mandating unleaded inks would pass. Mandating recyclable paper would fail.

  65. “”James Anderson Merritt | March 5, 2008, 3:20am | #

    TrickyVic says, “But who are the people that section 2 is referring? The militia? Could it be the same people that have a right to keep arms?”

    Unless someone can make the compelling case for a deliberate inconsistency in usage in the 2nd Amendment, we have to accept that “the people” in the 2nd Amendment are identical with “the people” mentioned elsewhere in the Constitution. Not the militia (unless we assume, as some have, that “the militia” and “the people” are synonymous).

    I agree. I also say that the term people is defined by the first three words in the preamble of the Constitution. We the people.

    I don’t think the founding fathers could have made it more clear. People just like to ignore it when it doesn’t fit that which they want to believe.

  66. Tribe is wrong on this. It took him *years* to understand that the Second Amendment was an individual right and it’s going to take him *years* to understand the simple phrase: “…shall not be infringed.” What does this say for our “Academics” when the rest of us can figure out a simple sentence in historical context in a matter of days if not minutes?

  67. “””Let’s see… Seems like there was something called the “Stamp Act” imposed by the British to control the flow of newsprint stock and such…”””

    Wasn’t that applied to everything bought and sold? Didn’t the British use Stamp inspections to inspect one’s home for unstamped goods?

    Somewhere around here is a link to a video of Judge Napolitano where he speaks some about it. It’s been a while since I’ve seen it. It was very good.

  68. MikeP,

    It of course may require a cost-benefit comparison. Mandating unleaded inks would pass. Mandating recyclable paper would fail.

    That seems to me a pretty arbitrary line for those examples.

    But, given that the discussion is guns, what would be considered a gross and specific danger to the common wealth?

    It seems that the basic argument for anti-handgun laws is premised on the fact that gun violence is a gross and specific danger to the common wealth, based on 10’s of thousands of gun deaths a year. No?

    If you agree with the basic logic of the gross yet specific danger to the common wealth as a reasonable criteria for “infringe” then you are not disagreeing in principle with the gun-control laws, but with their specifics. Right?

    Just trying to clarify.

  69. That seems to me a pretty arbitrary line for those examples.

    Perhaps I should clarify what I had in mind. I am imagining the mandating of unleaded ink is because children have been eating newspaper or because lead from newspapers is getting into groundwater or because of something similar. In contrast, there is no conceivable example I could come up with that would excuse forcing newspapers to raise their costs to make newsprint recyclable.

    It seems that the basic argument for anti-handgun laws is premised on the fact that gun violence is a gross and specific danger to the common wealth, based on 10’s of thousands of gun deaths a year. No?

    I find the fact that something less than 1% of guns are used to commit crimes makes the public hazard due to guns neither gross nor specific. Furthermore, the overwhelming number of times guns are used in defense rather than offense makes laws against them even less grounded in the public interest.

    Do you believe in preemptively fingerprinting everybody in case they commit a crime?

  70. My point exactly ronbok. Some things it takes a real intellectual and years of education to misunderstand. and beware of an intellectual determined to misunderstand. They can change the “meaning of what ‘is’ is.” and by using a lot of big words like ’emanation’ and ‘penumbra’, they can buffalo a lot of folks.

  71. “”””Let’s see… Seems like there was something called the “Stamp Act” imposed by the British to control the flow of newsprint stock and such…”””

    Wasn’t that applied to everything bought and sold? Didn’t the British use Stamp inspections to inspect one’s home for unstamped goods?

    Somewhere around here is a link to a video of Judge Napolitano where he speaks some about it. It’s been a while since I’ve seen it. It was very good.”

    The British REQUIRED a “Stamp” on any and all public documents… including newspapers and pamphlets… and Bills of Sale and Deeds…

    In effect, it was a way of tracking commerce and speech.

  72. When the Brits took the armory firearms from Williamsburg up to Baltimore or some suc, it was a paramount reason to incite the colonials. Cannon were part of the armory as was the powder and the muskets. It included pistols. When the Bill of Rights was added it was absolutely meant to include hand guns and probably even cannon. Tribe’s argument is not correct.

  73. MikeP,

    I still get the sense that you are in disagreement about the specifics of the gun-control-due-to-gross-and-specific-danger-to-the-common-wealth argument, rather than the argument itself.

    IOW, you don’t see the number of murders as evidence of a danger, but if someone were to show you convincing evidence of a danger, you wouldn’t have a problem with that danger to justify the infringement…as long as it was convincing.

    At least that seems to be the case from what you have said…is that fair?

    As for the lead-ink thing…I, of course, recognize the danger from environmental lead, but its consequences seem small compared to the number of gun deaths in the country…even in your hypothetical…and the recycling can certainly be advocated for based on a similar harm/benefit profile (given AGW, for instance).

    The reason I bring this up, is that it often seems like many libertarians want to claim that they argue with more mainstream views on a topic based on a difference in principle, when in fact they are arguing about where to draw a line based on similar principles used by the mainstream to draw their line.

    This shows up most strongly in the smoking ban threads…but seems to occur on other topics as well.

    I wonder if it is due to libertarianism being a version of “anarchy lite” (Minarchy)…

    Do you believe in preemptively fingerprinting everybody in case they commit a crime?

    No, retinal scans are more accurate ;^)

    But seriously, I believe that on a very fundamental level, rights come with responsibilities. The fact that you have a gun comes with the responsibility of not using it to molest the rights of others. Whether the community has a strong enough interest in knowing who has taken that responsibility upon themselves or not through a gun registry can be debated…but that registry in and of itself does not seem to infringe upon keeping and bearing arms.

    So for your bio-informatics database question, a similar argument could be made that the existence of that database does not infringe upon any rights, even if it opens up the potential for rights to be abused by utilizing the database. Of course, if you believe in a right to privacy, then the bioinformatics database automatically violates a right. It would take an overt action by the individual to overcome that…they would need to somehow give up (a piece of) their privacy rights (by committing a crime, say). So short of crime, are their actions that would warrant an infringement upon privacy rights?

    Would we want a registry of everyone who purchases high explosives?

    Would we want a registry of everyone who has nuclear material?

    Would we want a registry of everyone with a concealed weapon?

    Everyone who purchases large quantities of bomb-making materials (like fertilizer)?

    I am not sure where I would draw the line on each of these, but it seems clear that a gross and “specific danger to the common welfare” argument can be used for each of these.

  74. Tribe’s suggestion that the protections of the Constitution do not extend to residents of Washington DC invites the immediate transfer of detainees from Guantanamo to a location much closer to their sympathizers.

  75. Chicago Tom,
    You’re absolutely right, especially since DC did not exist when the Constitution and the Bill of Rights were written.

  76. “””Let’s see… Seems like there was something called the “Stamp Act” imposed by the British to control the flow of newsprint stock and such…”””

    The Stamp Act significantly increases the cost of producing a document, because the cost of a stamp was considerable. The British also deliberately limited the number of stamps, way below the actual demand, for the purpose of restricting the flow of information.

    A firearms equivalent would be a $200 tax on each gun sold, and a policy of only issuing 50,000 “stamps” per year. Obviously, that would infringe on people’s rights.

    What does this say for our “Academics” when the rest of us can figure out a simple sentence in historical context in a matter of days if not minutes? Ah, yes, that universal agreement that exists among the non-academic public about the meaning of the 2nd Amendment.

    NM,

    I, of course, recognize the danger from environmental lead, but its consequences seem small compared to the number of gun deaths in the country Lead in newsprint WILL end up on the environment, or leaching into people’s systems. Virtually every single newspaper produced with leaded ink will, almost certainly, cause one or the other of those things to happen. Whereas most handguns sold or owned, by a large margin, will never harm someone.

    Along with the “compelling interest” test goes a “rational nexus” and “narrowly tailored” test. Yes, of course reducing murder by tens of thousands per year is a compelling interest, and I can even grant that denying everybody the opportunity to buy a pistol, even ordinary law-abiding people is rationally related to reducing shootings, but since 95+% of people being so restricted wouldn’t shoot others, such a law would be overly broad.

  77. Let’s try that last part again:

    What does this say for our “Academics” when the rest of us can figure out a simple sentence in historical context in a matter of days if not minutes? Ah, yes, that universal agreement that exists among the non-academic public about the meaning of the 2nd Amendment.

    NM,

    I, of course, recognize the danger from environmental lead, but its consequences seem small compared to the number of gun deaths in the country, Lead in newsprint WILL end up in the environment, or leaching into people’s systems. Virtually every single newspaper produced with leaded ink will, almost certainly, cause one or the other of those things to happen. Whereas most handguns sold or owned, by a large margin, will never harm someone.

    Along with the “compelling interest” test goes a “rational nexus” and “narrowly tailored” test. Yes, of course reducing murder by tens of thousands per year is a compelling interest, and I can even grant that denying everybody the opportunity to buy a pistol, even ordinary law-abiding people is rationally related to reducing shootings, but since 95+% of people being so restricted wouldn’t shoot others, such a law would be overly broad.

  78. LarryA,

    SCOTUS ruled that the police do not have to protect us. That is why they disappeared during the Rodney King riots.

  79. “The Right of the People to keep and bear arms shall not be infringed.”[/i] has got to be one of the most simplistic statements in creation. Can’t do it. No limitation. The forefathers knew if the people of this country weren’t armed to the teeth, the Government would stand on their neck. They’ve been doing it covertly since WWII. Let them take all our guns and they’ll start doing it overtly” Wrong they have there boot on are necks now, just look at what is going on all over the country, soon they will be kicking in doors of our homes.

  80. joe,

    I don’t disagree in general.

    Re: lead in newspaper ink…that was being compared to recycling requirements. On that metric, every newspaper thrown away because it can’t be recycled has an impact. So, sticking to MikeP’s examples, the percentage of items causing harm is not relevant to the decision. It would seem, in his example, to do with the overall load of harm on the society, perhaps.

    Lead is more dangerous than CO2, so restricting lead is justified, but forcing recycling is not…or something like that.

    So, if we move to guns from this example, it is not the percentage of guns that cause a problem that is important, it is the overall burden of harm that guns produce that justifies limited measures…as long as they do not infringe upon the basic right.

    I can even grant that denying everybody the opportunity to buy a pistol, even ordinary law-abiding people is rationally related to reducing shootings, but since 95+% of people being so restricted wouldn’t shoot others, such a law would be overly broad.

    Sure, but we were not discussing, necessarily, outright bans on hand-guns…which clearly infringe on the right to keep and bear arms, at least to a degree. But even under your restrictions…hypothetically, even if 95% of guns were never used in a crime, if 95% of homicides were committed using a particular type of gun, an argument could be made to justify the restriction on that type of gun, it seems.

    But we were discussing less clear examples. Given the potential harm a gun can cause, is it an infringement to require registration or waiting periods…even if we include your rational nexus and narrowly tailored test?

    Seems to me that neither test would put such laws in the “infringe” category…no?

  81. It would seem, in his example, to do with the overall load of harm on the society, perhaps.

    It has much more to do with the internalization of costs and benefits. When I say gross and specific damage to the public weal, I mean gross and specific externalities.

    Lead is more dangerous than CO2, so restricting lead is justified, but forcing recycling is not…or something like that.

    The lead is getting out of where everybody means it to be. The paper, on the other hand, is going exactly where those handling it mean it to go.

    If guns grew legs and started walking down the street shooting at people, they would probably merit regulation. But since their use is generally intentional and under human control, the right to possess them simply does not admit a broad mandate for their regulation.

  82. Howdy..
    this so called expert on the constitution.
    where he agrees the 2nd Amendment says that citizens have the right to Bear arms.
    but turns right around and SHOWS his TRUE BELIEFS.
    that its ok for DC to Ban them.
    our forfathers were NOT FOOLS.
    and the VERY reason this Amendment was added, was JUST for a day like TODAY.
    we”as Americans have the GOD GIVEN right to OWN, KEEP, AND BEAR OUR OWN ARMS.
    we HAD this right BEFORE GOVERNMENT.
    i know im preaching to the choir here.
    but WHEN is ENOUGH?? ENOUGH??
    Jim.

  83. Prof. Tribe’s weaseling on the wordage set down by our forefathers in penning the 2nd Amedment.The founder said not a single word for
    a modern day exception no ambious place for lawyers or professors to water down the intent
    to suit some political agenda.

  84. The paper, on the other hand, is going exactly where those handling it mean it to go.

    Unless I mean it to be recycled, I guess.

    Recycling is typically framed in terms of dealing with an externalized risk…

    Of course a law requiring the owner of a walking gun to register is not a restriction on the gun walking down the street, but on the gun owner.

    Those walking guns would need to have a pet license, I guess.

    But I still don’t feel like you are addressing the central issue. Your lines of demarcation still seem very arbitrary.

    Guns are special, but lead ink is not.

    I mean if I know that the lead ink will get on my fingers, I won’t buy, will wear gloves, or will decide to take the risk. I will dispose carelessly, or carefully, in full knowledge that I am polluting or not. Free marketwise.

  85. What does this say for our “Academics” when the rest of us can figure out a simple sentence in historical context in a matter of days if not minutes? Ah, yes, that universal agreement that exists among the non-academic public about the meaning of the 2nd Amendment
    Admittedly there is not universal agreement among the non -academic public. However I would maintain that a large part of both sides are not formulating their own opinion at all, but merely parroting what they heard from some Respected Personage, or read in their school textbook. Lawrence Tribe himself confesses to having fallen into that trap–and apparently not fully extracting himself yet in my opinion. He says he even wrote about what the amendment meant based not upon his own study, but just repeating what all (academics) knew. When he studied it himself, he changed his opinion. It would be a most interesting study to present the amendment to a High School class learning English in some other country and have them interpret it with no preconceptions or outside influence.

  86. “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

    Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788

  87. Laws that forbid the carrying of arms… disarm only those who are neither inclined nor determined to commit crimes… Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

    Jefferson’s “Commonplace Book,” 1774_1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

  88. Neu Mejican | March 5, 2008, 6:36pm | #
    insists:
    But seriously, I believe that on a very fundamental level, rights come with responsibilities. The fact that you have a gun comes with the responsibility of not using it to molest the rights of others. Whether the community has a strong enough interest in knowing who has taken that responsibility upon themselves or not through a gun registry can be debated…but that registry in and of itself does not seem to infringe upon keeping and bearing arms.

    If there is a registry, then the government (upon whom the mandate to not infringe lies) will know where to go to collect the guns. A registry IS an infringment.

  89. “Americans [have] the right and advantage of being armed, unlike the citizens of other countries whose governments are afraid to trust their people with arms.”

  90. “The Constitution shall never be construed to prevent the people of the United States, who are peaceable citizens from keeping their own arms . . .”

  91. “CAN WE TALK”?
    If the buffoonish DC government wants to continue to compromise constitutionally defined civil rights and liberties of US citizens in the name of violent crime abatemant, why not compromise the ones that actually will reduce the numbers of predatory thugs roaming streets and invading homes. Such as:

    —Racial and demographic profiling of likely criminals and the elimination of a requirement for probable cause before making an apprehension.
    —mandated abortions of illegitimate male fetuses from demographic or racial groups having a high probability of producing violent criminals.
    —charging drug dealers with murder for any death directly or indirectly resulting from their merchandise, and apply the death penalty.

    But of course none of this will ever fly in DC, or anywhere else in the US nor should it. But should “Pontius” Fenty, Bloomberg, Daley, et.al, continue to be permitted to wash their hands of the blood of innocent, and LEGALLY but UNCONSTITUTIONALLY disarmed and made vulnerable, law abiding citizens?

    Perhapps we should study some of the methods Dr. MLK used to address the injustices of his time. In any case folks, it’s time to get serious about this!

  92. “When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually…I ask, who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor…”

    George Mason, Virginia Constitution Convention

  93. “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.”

    Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787)

  94. “They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

  95. “A militia, when properly formed, are in fact the people themselves … and include all men capable of bearing arms.”

    Richard Henry Lee – Senator, First Congress

    “To preserve liberty, it is essential that the whole body of people always possess arms…”

  96. “Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”

    Rep. Elbridge Gerry of Massachusetts

  97. “The great object is that every man be armed. Everyone who is able may have a gun.”

    “Are we at last brought to such humiliating and debasing degradation that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?”

    March 23, 1775:

    Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

  98. The 2nd amendment as written is not confusing at all if you understand

    1. todays “advanced english” which is yesteryears regular english. learn the difference between dependent and independent clauses in a sentence
    2. the language as used in the 18th & 19th century. regulated meant in good working order. it didn’t mean government controlled, etc. militia didn’t mean military as we know it today, the militia then was of course…just us..me and you. free state meant free country, etc.

    so if you read it in yesteryears context it makes perfect sense how it is written. in todays manner of speaking we might word it differently, but thats how they spoke back then

  99. Astronerd is correct. The ONLY function a registry serves is to facilitate collection at some point in the future, and to discourage ownership in the present. It is as if I waved a knife in your face and asked you to please be so kind as to give me your wallet, and then protested to the judge that I did you no harm and it was a gift. My presentation of the knife constitutes a declaration that your ‘right to life” is subject to my whim and you will be compelled to follow my dictates to maintain it. Registration declares that the gun is yours only by permission of the government and they will revoke that permission if you do not cater to their whims.

  100. Thank you americanicon , exactly so. Now, I am an ignorant hillbilly with just a BS in Biology, but even I know any document must be interpreted in the language of the time it was written. When the Flintstones theme sang about having a “gay old time” it did not mean Fred was homosexual. English is a fluid changing language as any Bible student or REAL history student—or just a guy who likes old shows and books knows very well. We have all the dictionaries in use at the time the amendment was written. We have the example of the context in which the words appear in other historical documents. It is not hard, unless you are determined to make it mean something else.
    But you do not even have to go to language. Just ask yourself. These guys had fought the French and the Indians and their own British government and now they flat out REFUSED to sign the new constitution, —Until it said “The gov’t can control all the guns?” or “The gov’t will keep its hands off our guns?” Which makes sense?

  101. To Paraphrase, in modern terms, the second amendment: A fully armed, similarly equipped population ready to spring into action being necessary for the security of freedom, the right of the people to keep and bear arms shall hve no strangling obfuscationist traitor garbage encumbering it.
    See-“free state” meand the condition of being free. Water is found in the liquid state, the vapor state and the solid state. Man is found in the free state and the slave state. Our right to keep and bear arms- the most modern made at any given time- is essential to protect freedom. Hang traitors- and freedom will be safe a while yet. “Regulated” is not rules. The expression “rules and regulations” is NOT rules and rules. Regular is the root word to the regulated used in the second… it means similarly equipped. Regulation hat, regulation musket (rifle, assault rifle, grenade launcher- hey if palestinians have them,we should too!!) regulation gloves…. get it yet? All the confused, and those trying to sow confusion better learn to get wide awake… remember folks too: support for gun control makes one guilty of the murders of the disarmed innocent victims!!

  102. Astronerd,

    Pretty sure I didn’t insist on anything in this discussion.

    If there is a registry, then the government (upon whom the mandate to not infringe lies) will know where to go to collect the guns. A registry IS an infringment.

    Now since you have capitalized IS, I believe you are insISting, but doing so does not make your opinion correct.

    You would need to demonstrate for me how the registry infringes if it is not connected to some authorization to “go to collect the guns.”

    That would be, my good man, what “infringe” means in this context, it seems.

    But I am open to convincing.

  103. I’m sorry, but anyone who feels the constitution does not apply to rights of individuals is a communist.

  104. Using Tribe’s reasoning, Slavery would be entirely legal in D.C. if so mandated by the D.C. Council. BTW, the D.C. Council is NOT appointed by Congress so his reasoning is flawed yet again since Congress did NOT make gun ownership in D.C. illegal.

    A Slave is not allowed to own guns, a FREE man is so allowed. ANYONE trying to prevent gun ownership is just trying to re-institute slavery, just to a different Master, the Government.

  105. From Neu Mejican | March 6, 2008, 2:55am | #

    Pretty sure I didn’t insist on anything in this discussion.

    “If there is a registry, then the government (upon whom the mandate to not infringe lies) will know where to go to collect the guns. A registry IS an infringment.”

    Now since you have capitalized IS, I believe you are insISting, but doing so does not make your opinion correct.

    You would need to demonstrate for me how the registry infringes if it is not connected to some authorization to “go to collect the guns.”

    That would be, my good man, what “infringe” means in this context, it seems.

    But I am open to convincing.

    In 1967, Mayor John V. Lindsay signed into law a rifle-shotgun registration ordinance that was passed by the New York City Council. Under that law, every person who possessed or would later possess any rifle or shotgun in New York City had to register it by make, model and serial number, and obtain a permit to possess it.

    In 1991, the New York City Council, at the prodding of Mayor David N. Dinkins, dropped the other shoe. It passed, and the Mayor signed into law, a flat ban on the private possession of certain imitation or look-alike assault firearms (New York City Administrative Code, Sec. 10-303.1). The ban was flat in the sense that it applied regardless of reason or need for the firearm — and it was passed despite then-Police Commissioner Lee Brown’s testimony that no registered “assault weapon” had been used in a violent crime in the city.

    A year after the ban was enacted, Staten Island police raided a man’s home after he announced that he would not comply with the city’s ban. He was arrested, and ALL of his guns were seized.

    The NYPD had notified all New Yorkers who had been licensed to possess semi-automatic “assault weapons” and shotguns that any of the firearms covered by the ban had to be turned in, made inoperable or taken out of the city. The owners were directed to send back sworn statements indicating what had been done with the firearms, or suffer the consequences.

  106. My point—poorly made as it was, was that a registry is a THREAT of infringement just as a knife at the throat is a threat. And such a threat, given the history such as astronerd cited a tiny portion of above, becomes an infringement in itself. The knife at your throat puts you in fear and alters your behavior regardless of actually cutting you. The registry tells us “Big Brother is watching you, you had better not buy too many guns, or speak too loudly, or make any fuss about anything, lest they disapprove and decide to disarm you.” This is not paranoia, it has happened to gun owners where there are registries.

  107. The social security number , by law, will NEVER be used as ID. The income tax will NEVER effect anyone but a few of the very wealthy, and only amount to 3 or 4% of income for them. And the gun registry will NEVER EVER be used to seize guns. And the land will belong to your tribe as long as the grass grows and the rivers flow.

  108. Astronerd,

    Very good.
    You have demonstrated that the registry is only a threat when tied to overt actions involving the confiscation of arms.

    But I asked you to show that the registry was an infringement in the absence of a law authorizing confiscation.

    dlyn,

    That is a better argument.

    So, I listed some examples of potential registry laws above.

    Would you feel comfortable with any of those registries, despite (or because) of the fact that they would alter people’s behavior?

    Registration for purchase of high explosives?

    Nuclear material?

    Concealed weapons?

    Bomb making materials?

    I am asking seriously. I am not challenging you.

    The fact that a registry is likely to alter behavior is, I would say, part of the point of such a registry. If it is not tied to a law authorizing confiscation, it is designed to keep in the forefront of your mind that you should not use your gun to infringe the rights of others, because when you do, police will know that it was your gun that was used.

    Is that an infringement?
    Is it an acceptable infringement when not tied to confiscation laws?

  109. The militia was the citizen army and was to arm itself with their own firearms. Pistols were not unusual during revolutionary days and the Second Amendment does not rule out any kind of arms. What was understood was that militia should use arms commonly used by the army.

  110. Neu Mejican | March 6, 2008, 11:05am | # replies:

    “You have demonstrated that the registry is only a threat when tied to overt actions involving the confiscation of arms.”

    Wrong! I have demonstrated that once a registry is in place, it can be used for nefarious purposes… such as confiscation.

    “But I asked you to show that the registry was an infringement in the absence of a law authorizing confiscation.”

    See above response.

    “So, I listed some examples of potential registry laws above.

    Would you feel comfortable with any of those registries, despite (or because) of the fact that they would alter people’s behavior?

    Registration for purchase of high explosives?”

    Not applicable in this exercise. The 2nd only covers what a single citizen can carry.

    Nuclear material?

    See above response.

    Concealed weapons?

    Vermont doesn’t require any permits or registrations for concealed weapons or open carry weapons. Vermont has no problems.

    Bomb making materials?

    This will cover many of the materials in your kitchen or bathroom. Are you suggesting licensing and registration of fingernail polish remover? What about drain cleaner? I could go on… Anyone with a high school education can get a basic chemistry book that will reveal many types of reactions that could be highly destructive. What about licensing and registration of certain books (chemistry for starters, and we will determine at a later time which other books should be restricted).

    I am asking seriously. I am not challenging you.

    The fact that a registry is likely to alter behavior is, I would say, part of the point of such a registry. If it is not tied to a law authorizing confiscation, it is designed to keep in the forefront of your mind that you should not use your gun to infringe the rights of others, because when you do, police will know that it was your gun that was used.

    Is that an infringement?
    Is it an acceptable infringement when not tied to confiscation laws?

    Once the (registration) data is available, what is to stop future members of the government from using it for confiscation? Registration and confiscation are two parts of the same monster.

    And, besides, in U.S. v. Haynes (1968), Miles Edward Haynes (a felon) appealed his conviction for unlawful possession of an unregistered short-barreled shotgun. The Supreme Court ruled: “We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under sec.5841 or for possession of an unregistered firearm under sec.5851.”
    I.E. Criminals are not required to register their firearms under a compulsory system.

  111. Astronerd,

    Wrong! I have demonstrated that once a registry is in place, it can be used for nefarious purposes… such as confiscation….Once the (registration) data is available, what is to stop future members of the government from using it for confiscation? Registration and confiscation are two parts of the same monster.

    Potential to facilitate infringement constitutes infringement?

    That is exactly the logic that leads to gun-control laws: potential for a gun to be used wrongly justifies restrictions on its ownership.

    Potential for infringement is not infringement.

    As for your other points.
    Thanks for your opinions.

    I would note that a single citizen can carry both high explosives and nuclear material (I did not say you should register hydrogen bombs, just nuclear material).

    But you seem okay with registration for those items, if I read your response correctly.

    I had not read the Haynes case before.
    Interesting logic. I believe your summary is not quite correct, however. The decision seems to say that criminals do not have to provide the evidence to the state that they are breaking the law. I would need to read the whole opinion, but this is different than in subtle ways from what you state.

    I am assuming that Haynes was already a felon, and would no longer have the right to carry a gun due to his/her own status as such. No?

    Or do you believe that the 2nd give felons the fight to carry weapons?

  112. Astronerd,

    Imagine a creative individual with 10 kilos of C4 and one kilo of radioactive material. Seems like it could be fashioned into something that could be “born” that was quite deadly.

    Would such a device be covered by the 2nd?

  113. Nuclear Material I consider a red herring. The attempt is to pain an image of the famous Joe Sixpack running around with a nuke. Currently only governments are capable of producing fissionable material, and as the producers it is their right to decide where they will distribute it. Yet we find that in spite of such a very small pool of producers, attempts to register and control has failed. It makes an illustration of the futility of such efforts.
    .
    Actually, as a biologist I consider nuclear weapons obsolete. The great danger is bio weapons, and they can be produced in a basement with home made materials which cannot be registered or controlled.
    .
    High Explosives and bomb making materials—as noted in the post above, it becomes an exercise in futility. Any High School science nerd worthy of membership in the science club can make a bomb out of things around the house. Such knowledge is in fact necessary for any chemistry student so that he knows what NOT to do. Our world is awash in deadly chemicals and explosive materials. And some cannot be controlled. Sugar is the primary material in one explosive.
    .
    Concealed weapons. As old as Ehud (a Judge in the Bible) and the Tiger claw of India and the push dagger. Efforts were made to control all these and failed miserably. A zip gun can be fashioned from material in any junk yard or for $20 in any hardware store. Machine guns have been produced in prisons and in fact the M1 Carbine was designed by a hillbilly in a prison sweatbox and production was nearly completed in the prison workshop. See “Carbine Williams”.
    .
    So my problem with all the above is that registries are futile at controlling the behavior of those inclined to do evil. They serve only to control the behavior of the good citizen. As such it alters the balance of power that was the intent of those who drafted the 2nd Amendment. The Armed Citizen was to be the “knife at the throat’ of government. That such is needed is evident from the staggering body count of governments slaughtering their own citizens in the past century . Visit the JPFO website. Registry is an attempt by government to take control of the knife and alter the balance of power. It may have no evil intent but only a natural fear, but in our country the government SHOULD fear the people. Not the other way around. And it is impossible to promise that no future government will abuse the people. See my post above about “As long as the grass grows and the rivers flow.”

  114. Ah—I see you are not necessarily talking about fissionable material. Yet still such material in significant quantities is produced only by governments and thus up to them to control as they see fit. And they have utterly failed in their efforts to do so.

  115. Neu Mejican | March 6, 2008, 1:01pm | # replies:

    Potential for infringement is not infringement.

    I would suggest that you re-read my prior post where the registration scheme was instituted in 1967 and the confiscation didn’t happen until 1991.

    In Haynes “I believe your summary is not quite correct, however. The decision seems to say that criminals do not have to provide the evidence to the state that they are breaking the law. I would need to read the whole opinion, but this is different than in subtle ways from what you state.”

    Haynes was a felon.

    Justice Harlan wrote for the majority: “We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under 5841 or for possession of an unregistered firearm under 5851.”
    Justice Marshall did not participate in the case.
    Justice Warren dissented.

    Other ramifications of this decision are that a felon is not required to register his machine gun, his hand grenade, his RPG, his 10Kg of C4, his artillery pieces,….

    Go and read the decision.

    P.S. Thanks to Dlyn for his support…
    My grandmother’s first cousin was David Marshall Williams (Carbine)

  116. Johnathan comments that his liberal friends seem “pretty apathetic” about gun control.

    It’s not that they’re apathetic: they’ve simply been burned so often at the ballot box, they’ve finally learned gun control is another “third rail” issue they should not touch.

    Just ask those in Congress who lost their seats in the ’94 elections!

  117. Judge Alex Kozinski of the Ninth Circuit stated in Silviera v. Lockyer that “tyranny thrives best where government need not fear the wrath of an armed people.” Calling the Second Amendment a “doomsday provision,” Judge Kozinski warned that assuming you can never lose your freedom “is a mistake a free people get to make only once.”
    astronerd–enjoyed your posts and like the name

  118. Dlyn,

    The futility/practicality/complexity of a registry is, of course, a different matter. They will always have limited utility. They do, however, provide a mechanism for identifying those willing to ignore reasonable regulations (under the assumption that the registry is reasonable…which is, of course, debatable).

    In fact, this is another one of the justifications used for such laws (again, the validity is certainly debatable).

    Astronerd
    I would suggest that you re-read my prior post where the registration scheme was instituted in 1967 and the confiscation didn’t happen until 1991.

    I have re-read it.
    It still seems to clearly be an example whereby the registration does not infringe until linked to a confiscation law. You example provides 4 years of evidence that a registry can exist without abuse. It then provides an example of the potential danger once that registry is linked to confiscation laws. It is the link that matters in your example.

  119. A possible parallel that just this moment occurred to me. In the old days when a library card was stuck in the back of a book with the names of all the people who checked it out, it was the practice of the FBI to visit libraries and record the names of people who had checked out books they deemed dangerous or subversive. Would you object to this so long as they allowed the books to exist and did not punish people for reading them ?

  120. In similar vein, when I was in a pistol club, most of the members were law enforcement, and it was common knowledge that some of them were paying their dues from their expense account and were in fact “on Duty” watching us . Both sides thought it hilarious.

  121. In the modern world, numerous web sites are monitored, or actually operated by various government agencies for the purpose of identifying people they deem to be questionable. Personally I have no problem with that as anyone may listen in at the public square. But I have a problem when they go through my personal books or read my mail —or demand to know what guns are in my closet. Unfortunately my life is not so interesting –or my gun collection so extensive–that anyone in this state would actually care. But the right to an attorney–(etc.) should be supported even by those who have no need of one.

  122. Neu Mejican | March 6, 2008, 3:28pm | # continues:

    “I have re-read it.
    It still seems to clearly be an example whereby the registration does not infringe until linked to a confiscation law. You example provides 4 years of evidence that a registry can exist without abuse. It then provides an example of the potential danger once that registry is linked to confiscation laws. It is the link that matters in your example.”

    Without registration, confiscation is not possible.
    …And it’s 24 years, not 4…

  123. Now imagine that there is a National Coalition to Ban your favorite author or publication. Lets say Reason Magazine. It is funded by Billionaires and celebrities. Public officials stand up constantly and declare that this publication , and all who read it have blood on their hands. Those are Assault Books and Magazines that destroy innocent minds. Your neighbors are warned to ask people if they have those in their house before letting their children go there. Some states have banned those publications, and thrown people in jail who thoughtlessly drove through their state with this magazine in the car. Now do you have a problem with the government having your name on a list of who has those books or who subscribes to this magazine?

  124. THE second amendmendment and preamble seam to
    point to the rights of the people and another
    supportive argument is that a malista was formed before we where officially a nation by the people of the colonies not yet states
    but at the drafting of the constitution that all
    changed the malista and at the end of the second amendment it states THE RIGHTS OF THE
    PEOPLE SHALL NOT BE INFRINGED.
    THEN we have the language that alludes to keep
    us free from asupreme dictator

  125. Astronerd and copy editor,

    Yes, I can do the math.
    A simple typo.

    Without registration, confiscation is not possible.

    That’s a laugh.

    I am pretty sure your average drug bust involves no pre-registration of the drugs that are confiscated.

  126. And those have been SO effective !

  127. Neu Mejican | March 6, 2008, 9:27pm | #

    I am pretty sure your average drug bust involves no pre-registration of the drugs that are confiscated.

    Precisly the point! If every bag of pot, every meth lab, every crack rock, every balloon of heroin, every etc. were registered, the government could just round up all of the stuff! There would be no violent effort to track down each and every dope dealer in possesion of a controled substance… NOT!

    Criminals do not follow the law. The only people that would register their guns in a situation where the government was requiring registration would be the law abiders. The criminals, by definition, do not obey the law. And, besides, because of U.S. v. Haynes (1968), they need not register. When the realization that further firearms besides “assault weapons” needed to be controled, it becomes rather simple to track down all of the citizens who have registered their Glock 19.

    Do you see where this leads? The next gun to be banned might be your Remington Model 7400 Weathermaster deer rifle… (Brady sez semi-auto with sniper scope)… OH! I thought hunting guns were OK?

    Please re-consider your position.

  128. Every government worker- elected or not- has taken an oath to uphold teh constitution. Back in New Orleans when the traitor gave the order to collect guns from citizens- all the cops should have instantly, upon hearing the order, asking to hear it again, and getting it right, blown the brains out of that traitor pig chief. And if the mayor ordered it- ditto the mayor. All the citizens faced with that happening, should have fought back. They “authorities” ignored rampaging criminals and went and disarmed the innocents. Just lik ehow the crims cry that the enemy is in guantanamo, and insist on aborting innocent unborn people- wack job crazy ville. They musst be gotten rid of. Live up to the oath, or do not take the job.. but if you have the job- and break the oath, expect hell.

  129. Astronerd,

    Please re-consider your position.

    I have been discussing an issue, not taking a position. Exploring the logic behind positions, not advocating for them. There is a difference.

    You still have not provided any logical support for the claim that a registry infringes upon the right to keep or bear arms until it is tied to authorization to confiscate.

    Your argument takes this form.

    Gun registration is an infringement because it might lead to an infringement.

    Gun registration is a danger because it might be abused later in ways that infringe my rights.

    X is a danger because it creates the potential for Y to occur more easily.

    X = gun registry
    Y = Confiscation

    or

    X = gun ownership
    Y = gun violence

    If it is a legitimate argument in one case, it is legitimate in the other.

  130. But that is only half of the equation. I doubt if any gun owner would deny that guns are dangerous. That is why we take safety precautions that end up making it one of the safest sports known. The question is, do the dangers outweigh the benefits? Fire is dangerous. Cars are dangerous. Swimming pools. LIFE is dangerous. But do the dangers outweigh the benefits? It is not my contention that guns are not dangerous, but that the benefits of gun ownership outweigh the dangers. Likewise, there can be no dispute about the danger of registration. You must then demonstrate the benefit, and we can then determine if it outweighs the danger.

  131. I am reminded of an old Texas Ranger who kept a cocked and locked 1911 in his waistband under his belly flap. An alarmed person said “Isn’t that dangerous?” His reply,near as I recall was “Of course its dangerous ! Thats why I carry the dang thing!”

  132. dlyn,

    Again, you make a better case than Astronerd.

    You are not formulating the argument in the same way s/he has been.

  133. Likewise, there can be no dispute about the danger of registration. You must then demonstrate the benefit, and we can then determine if it outweighs the danger.

    This is, in fact, the approach that needs to be taken in this debate if we are going to come to a rational policy.

    There seem to be two approaches.

    If the benefits of the registry are assumed…
    Identify the dangers of a registry, and craft policy to protect against those dangers.

    If the benefits of the registry are unclear…
    Then those who advocate for it would need to go back to the drawing board and make a better case for those benefits with data and or better logic.

    If the benefits do not justify the registry due to the dangers…
    Then those who oppose the registry need to be coherent and demonstrate how the dangers of the registry are a greater danger than the problems the registry is designed to address. Again data or logic.

    On either side, denial/complete rejection of the dangers and/or benefits the other side sees will only lead to an impasse. Rejection needs to be paired with data. But the data needs to be relevant to the argument.

    Astronerd did not provide evidence of how a registry in-and-of-itself is an infringement. His tact would get nowhere in a serious policy debate. Raising the potential dangers only makes sense when they are balanced against the issues that those proposing the registry want that registry to address.

    Yadda yadda…

  134. Perhaps it is necessary to define what is meant by dangerous.
    An unloaded handgun in the chest in the attic cannot possibly harm anyone. Its POTENTIAL for harm is only realized when someone picks it up, loads and misuses it.
    Likewise you might suggest that a Registry sitting in someone’s filing cabinet cannot harm anyone. It’s potential for harm exists only if someone uses the file in some harmful way.
    The likelihood of misuse, and the degree of harm would equal the ‘danger’
    There are also psychological effects even of the unused registry and the unused gun. We have already discussed the “Big Brother is watching you” effect of a registry.
    There is also the knowledge that American households are full of guns, that makes “hot burglaries” rare in the USA , while common in “gun free” countries. And we have the comment by one Japanese official that this deterred invasion in WWII.
    So an effect exists regardless of use.

  135. Dyln,

    I think we are essentially in agreement.

    So “hot burglaries” is that this is the burglar
    http://www.filmscouts.com/zgifclip/ny96/irm-vep.gif

    Or when these guys break into your house
    http://joemygod.blogspot.com/2008/02/porn-twins-busted-as-cat-burglars.html

    ;^)

  136. That should read

    Is that when…

  137. A ‘hot burglery’ is when someone breaks in KNOWING the residents are at home. As opposed to the usual practice in America of waiting till everyone leaves. In England burglers know that most homes are gun free and if the homeowner uses so much as a cricket bat on them HE will be prosecuted. So most home invasions take place when the dwelling is occupied.
    But I like your examples better.

  138. We already have a gun registry. A certain high Law Enforcement official once told me it took him 3 phone calls to identify the purchaser of any gun. He calls the manufacturer, they tell him that gun was sold to Wal-Mart (for example) He calls Wal-Mart, they tell him it was shipped to Dallas. He calls the Dallas Store, they tell him the individual. However the system CANNOT account for individual exchanges. EVEN where those are totally illegal. Personally I lost all my guns when my canoe turned over in the rapids. You say someone used one of them somewhere ? Imagine that–guess they found em.

  139. Dlyn,

    So given your overturned canoe, do you think it would be a benefit to you to have a systematic way to report it lost or stolen since you are the one who will be identified as the owner of a gun if it is used in a crime (with only 3 phone calls, and a warrant, I assume)?

  140. I don’t believe a warrant is necessary in most cases. I was given to understand that upon identifying himself the information was turned over in the spirit of co-operation. Remember we are not talking illegal operations. I am not sure exactly to whom Firearms Dealers are REQUIRED to open their record.
    Regardless, it may be a useful idea to have it on official record at the courthouse that these legally purchased guns were lost or stolen. But I can do that now, and am supposed to do so. Required to do so some places I believe. Then there were those guns I am rumored to have illegally, but I got rid of those in a fit of repentance at an anonymous Gun Buy Back operation. Or were they stolen? I don’t recall.
    My point of course is that a person of anything less than my sterling integrity can easily evade responsibility for owning a gun that is “In his name”. Even many good citizens would feel justified in such a lie. And those who are engaged in criminal activities would of course not hesitate to tell a tale. So even if the Registry is ultimately used for confiscation, it would have to come down to a house to house search with metal detectors and dogs, otherwise it would net only the most good cooperative citizens who never were a problem anyhow.

  141. Then there is that spot out in the desert with no markings or features whatsoever, that is recorded in my GPS for some reason. I must visit that after the confiscators leave and the fuss dies down and see what is there. Why I remember now?.THAT’S where I put???

  142. The only entity the firearms sales records have to be open to is BATF. They will call on behalf of police departments so the dealer is required to give up the information. No warrant is needed. If BATF calls requesting a trace the dealer has 24 hours to provide the information.

  143. Neu Mejican | March 7, 2008, 11:12am | #

    dlyn,

    Again, you make a better case than Astronerd.

    You are not formulating the argument in the same way s/he has been.

    Been off on a job.

    One question…
    Would the 1991 collection of guns in NY have been possible without the 1967 registration scheme?

    P.S. I’m a guy…

  144. As for the notion that I was “making a better case”—no—I was just hitting on a differant side of a multifaceted issue. Shoulda said that when they made this remark—but I was having too much fun sparring. And as for ‘would it have been possible’–nope. And I think it was part of the plan all along. Registration serves no REAL purpose, Which is what I was trying to show with the illustrations of ways to evade it. So why do it? To set us up for confiscation. Just waitin for the next incident to say “Well we tried registration and there is still a problem so, much as we hate to I guess we will have to confiscate.”

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