Clarence Thomas, Civil Rights, and the Second Amendment

In The New Yorker this week, Jeffrey Toobin has a long article on the judicial philosophy of Supreme Court Justice Clarence Thomas, focusing on the role that Thomas, along with his politically-active wife Virginia, may play "in killing Obama's health-care plan." It's nice to see that Toobin now recognizes Thomas' importance as an intellectual force on the Court. That wasn't always the case. In his 2007 book The Nine: Inside the Secret World of the Supreme Court, Toobin unflatteringly described Thomas as "a justice neither influenced by nor with influence upon his colleagues." Now Toobin worries that "the implications of Thomas's leadership for the Court, and for the country, are profound." So that's progress.

On the other hand, there are a few passages in the article suggesting that Toobin still has some more research to do. For example, Toobin writes:

In his jurisprudence, Thomas may be best known for his belief in a "color-blind Constitution"; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control.

It's true that Thomas' landmark concurring opinion in McDonald v. Chicago provided a sweeping history of the 14th Amendment's roots in the anti-slavery movement—but that's only because the 14th Amendment was specifically designed and ratified to counteract the predatory actions of the former Confederate states, who sought to deny the civil, political, and economic rights of black Americans and their white allies—including the right to keep and bear arms. Anybody who really followed McDonald and the battle over Second Amendment incorporation against the states would have learned at least that much legal history. If Toobin really thinks that gun rights are "scarcely related" to civil rights, that's only because he wasn't paying attention.

Comments

[Tony]

It doesn't say which arms. Are bans on possession of WMD unconstitutional? If not, where's the line to be drawn? The constitution, of course, offers no guidance, and neither do natural rights suppositions.

There will be pressure from the gun lobby one way, from the antigun lobby the other way. Neither is "right," but it would be nice if we could have an honest conversation on the subject instead of stopping that conversation with appeals to magic like natural rights or a talisman-like constitution.

[Hugh Akston]

I can't think of a better way to start that conversation than with a reductio ad absurdium. D-

[Tony]

I think it's the best way to handle the argument since where to draw the line is the crux of the issue.

[styrgwillidar]

Well, I think the best place to start is what the authors of the constitution, and therefore those voting on it understood the right to be. That is, the right which the colonsists had under English law to keep and bear arms for opposition to government tyranny, self-defense and hunting. Or as DC Court of Appeals put it:
"To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constituti?on and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the
depredatio?ns of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Anti-federa?list opponents. The individual right
facilitated militia service by ensuring that citizens would not be
barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's
enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia."

[Tony]

[What] those voting on it understood the right to be.

But I'm talking about technology. If we're going by what they understood, ok we're allowed 18th century arms only.

And whatever the constitution is found to require, it still is not a sacred text, and this amendment (technologically concerned as it is) is more than ripe for reexamination. Maybe the whole thing is as outdated as the citizen militia concept.

I do think that a document that provides an explicit definition of treason (levying war against the US) does not also endorse that same definition as a guaranteed right. Who gets to decide when the government has become tyrannical? Do we vote on it, or just start charging and firing?

[Ballchinian]

And whatever the constitution is found to require, it still is not a sacred text, and this amendment (technologically concerned as it is) is more than ripe for reexamination. Maybe the whole thing is as outdated as the citizen militia concept.

Molon labe, Tony.

[Tony]

Really I'm just playing devil's advocate--I am not convinced that gun prohibition is possible or would be effective in this country. I prefer to focus on real civil rights issues, as in economic civil rights, and let those problems solve themselves.

[JT]

economic civil rights? really?

[Hazel Meade]

Well, do you need a nuke to defend yourself? I seems to me that nukes, tanks, fighter plane, missiles, and so on are inherently offensive weapons, and pose an excessive danger to innocent bystanders.

Perhaps the line could be drawn at "high probability of killing someone other than the intended target".

[Hazel Meade]

Or, how about, to use a Nozickian formulation, you assume full liability for the dangers posed to innocent bystanders, but are required to carry sufficient liability insurance to cover damages to people and property caused by the use of such weapons.

Since the cost of such liability insurance is prohibitive, I can't see many people, aside from perhaps a few private security firms, bothering to purchase tanks or nukes or missiles.

[Tony]

Those both sound reasonable to me. I think the conversation can be refined to discuss issues of externalities beyond innocent bystanders, and, for example, deal with geographical realities.

[Hazel Meade]

What externalities? The cost of healthcare? If you're assuming full liability for damage to innocent bystanders, they you're paying for their healthcare, so that's already covered.

[Tony]

What about criminals (i.e. people who would try to escape liability)? A knife fight in the street is meaningfully different from a gun fight in the street, so a right to own guns comes with the price of more criminal killing.

[Hazel Meade]

I'm not suggesting that merder would be legal. You still go to prison for killing innocent people. Adding civil liability and damages would be a further deterrent. And it would harder to own a gun if you can't pay the insurance costs, which would mean fewer poor desperate people with guns. The people who are going to get around this are going to flour other gun control laws anyway.

[Hazel Meade]

er ... murder, flout

[Tony]

So who owns liability for increasing crime deaths that happen as a result of more gun proliferation?

[Hazel Meade]

Er, the insurance companies.
Or the actual criminals.

What the hell are you talking about? If an innocent person dies, the person who owns the gun is liable, and if he has insurance the insurance company pays. If he doesn't have insurance then he didn't get the gun through the legal process anyway, so it's a moot point.

How are earth are "increasing crime deaths" NOT simply a sum of individual deaths for which individuals are seaprately liable for the individual acts?

[dunphy]

WHAT evidence is there that "increased gun proliferation" = "higher murder rates"?

i suggest none.

our murder rates have been plummeting for decades, yet guns have PROLIFERATED

evidence. it's what's for breakfast.

[Bill]

According to the esteemed director Michael Moore (sorry for this but it was interesting), Canadians have just as many guns and still have much less crime. (or at least the Canadian city across from Flint, whatever that is).

[Propertarian]

Hazel Meade: ...inherently offensive weapons...

LOL! I want land mines. They are not inherently offensive weapons.

Then I won't have to go hoarse shouting "Get the hell off my property!"

[Jason]

I just went to an airshow where many of the pilots owned fighters and bombers...

[Zeb]

But I doubt they had bombs to drop.

[Professional Critic]

If you seriously believe that only 18th century personal firearms are protected by the 2nd, does that mean that only newspapers printed by manual presses are protected by the 1st?

[Abersouth]

Plus Mormans and scientologists and all sorts of other upstarts are verboten.

[Tony]

I don't believe that. I believe the supreme court clearly made it so that the 2nd confers an individual right to own modern guns, with certain qualifications.

[John]

None of the amendments, nor the Constitution itself, confers any rights upon anyone. Nor does any government body. Government issued "rights" are privileges that can be revoked. The assumption is that you have natural rights, and governments are instituted among men to ensure they are protected.

I understand why you interject Rousseau into the conversation, consciously or not, but the Constitution does not establish rights as a social construct. To interpret the document that way distorts it's meaning. I get that progressives have a disdain for "natural" rights, but the Declaration says what it says. That strain of thinking was codified, and that understanding at least for white male land owners, was the one the Constitution was written with.

"endowed by our creator with certain unalienable rights" Jefferson went on to say that rights are innumerable.

That really is a fundamental disagreement on all fronts of political thought, and with regard to just about every issue. What is a right? Where does it come from? Are there limits? What are the limits? Tough to solve issues when you disagree on this most basic of things.

I'll tell you where I stand. I don't love democracy as you do. I don't want citizens getting together to vote when my rights become an inconvenience. Majority rule sounds nice to some, until they find themselves in the minority.

[Tony]

However you interpret the rhetoric of the revolution, the fact is that the constitution is a form of social contract. One voted on democratically. It's also a fact that the only reason government is not allowed to regulate fireamrs more than it is is because the 2nd amendment exists. Claiming you have a right to own a specific piece of technology based on 'natural rights' is even more tenuous than basing that claim on the constitution.

[John]

It is a social contract, but is different in that it does not assume collective sovereignty. The document itself lays out the structure of government, and it's enumerated powers. It was the patron saint of progressive expansive government, Hamilton, who scoffed at the idea of a "bill of rights" which is really a bill of further restrictions. His argument was that the amendments were superfluous. After all if it wasn't an enumerated power the Federal government couldn't exercise it.

So this: "It's also a fact that the only reason government is not allowed to regulate fireamrs more than it is is because the 2nd amendment exists", atleast as far as hamilton is concerened, is not true.

You could no more restrict the right to own a gun then you could free speech, whether the amendments exists or not.

[Live Free or Diet]

[What] those voting on it understood the right to be.
But I'm talking about technology. If we're going by what they understood, ok we're allowed 18th century arms only.

And black powder weapons are far more hazardous than modern firearms, both because of the mechanisms and the powder involved. Great, you just banned (2011-1791=) 220 years of safety improvements. Good for you, Tony. Way to think it through.

[White Laplander]

Never thought I'd defend Tony, but it was blatantly obvious he wasn't advocating that position.

[Joshua Corning]

But I'm talking about technology. If we're going by what they understood, ok we're allowed 18th century arms only.

I think the standard is irregardless of technology.

it is for the purpose of hunting, self-protection fighting off tyrants and fighting off forginers.

the question should not be WMDs but should we be allowed shoulder mounted missile launchers....

The answer is yes because squirrels can fly.....and fuck up perfectly good comments.

[toxic]

tony, you don't get it. The militia will never be an "outdated concept." The militia is all of us. We don't have to get dressed up and go on parade or take orders from Colonels to be in the militia. Any able bodied person is in the militia. The line between citizen and subject has been the right to bear arms in every society throughout history. The people who don't have the right to bear arms are the people the government plans on oppressing.

I'm fairly comfortable with the line being drawn at automatic weapons and above, simply because it seems like a fairly reasonable line that balances the rights of the people to arms with the legitimate concern that automatic weapons would be used to often by criminals and terrorists.

[Tony]

If government always has bigger weapons than you, then you aren't really free to be an armed revolutionary.

The constitution most certainly does not purposely sow the seeds of its own destruction like that. You don't have a right to commit treason. Modern civilization transfers the particulars of the right to self-defense to law enforcement, with your ability to personally shoot an assailant being a specific case--that power you have to shoot someone is only legitimized by law, you don't get to exercise it outside of law, or expect government not to have significant cause to retaliate if you do.

[Zeb]

"If government always has bigger weapons than you, then you aren't really free to be an armed revolutionary."

This may be true for a small group without widespread popular support, but if people are generally armed, even just with handguns, rifles and shotguns, it is going to be a lot more difficult for a government to start generally oppressing people. The point isn't that it be possible to overthrow the government right now, but that if things get so much worse that everyone can see that some level of forced resistance is necessary, an armed populace is much harder to beat into submission.

"Modern civilization transfers the particulars of the right to self-defense to law enforcement"

This is not true at all. The police are not there to defend your life and property. They are there to clean up and catch the bad guys after a crime is committed. That their presence provides some protection through deterrence is just a bonus. The police have no obligation to protect you. That is your responsibility alone.

[Dan]

If we're going by what they understood, ok we're allowed 18th century arms only.

You are wrongly assuming they could only conceive of the weapons they had immediate access to. Things like machine guns were both conceivable and conceived of -- they just didn't know how to build them yet.

Anyhoo.

18th century armaments included bombs, cannon, and warships -- and yes, these things were privately owned. So how about if you allow me to own an M-16, and I'll yield my right to own a cannon that fires 20-inch exploding shells. 🙂

[Tony]

Hence the irrelevance of the 2nd.

[Mr. FIFY]

"Economic civil rights" is as much bullshit as Obama's disdain for "negative rights".

Oh, and a federal insurance mandate is double bullshit.

[styrgwillidar]

Please refer to my next two posts where the court(s) specifically rejected the 18th century arms argument.

[mad libertarian guy]

Even if we presuppose for the sake of argument that the militia is the only legit purpose of owning a firearm (as is the argument of many a leftist), is it not reasonably easy to assume that access to military weaponry would be included? What other point would there be if an army of citizens protecting their country in a time of need were limited in the weapons they could use to hunting rifles? The founders lived in a day where citizens and the military had the same access to the same weapons. That is the baseline.

In short, yes, I SHOULD, as a law abiding citizen with no criminal record, have access to the same arms as soldiers. The founders understood that because it was the ONLY way they could understand it. Technology doesn't undermine principles, and gun technology no more necessitates curbing the RTBA as does YouTube the right to free speech.

And it says the PEOPLE will not be deprived the RTBA, not that the government will not be deprived of holding weapons with which they can armor a citizen militia in the event we might need use of one.

[styrgwillidar]

Further, the court noted that arms would be those expected to be brought for use as part of the militia, they would constitute small arms suitable for the purpose- appropriate to current technology. The modern handgun?and for that matter the rifle and long-barreled shotgun?is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller's standards. Pistols certainly bear "some reasonable relationship to the preservation or efficiency of a well regulated militia." They are also in "common use" today, and probably far more so than in 1789. Nevertheless, it has been suggested by some that only colonial-era firearms (e.g., single-shot pistols) are covered by the Second Amendment. But just as the First Amendment free speech clause covers modern comunication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a "search," the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth Amendment standards to thermal imaging search).

[styrgwillidar]

Attorney General Clement, arguing in support of the DC ban in the SCOTUS orals, actually admitted that to follow the constitution in terms of purpose of the 2nd amendment, modern infantry grade weapons would logically be covered by the 2nd amendment:

GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the Government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is.
CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns. It involved an absolute ban. It involved an absolute carry prohibition. Why would you think that the opinion striking down an absolute ban would also apply to a narrow one -- narrower one directed solely to machine guns?
GENERAL CLEMENT: I think, Mr. Chief Justice, why one might worry about that is one might read the language of page 53a of the opinion as reproduced in the petition appendix that says once it is an arm, then it is not open to the District to ban it. Now, it seems to me that the District is not strictly a complete ban because it exempts pre-1976 handguns. The Federal ban on machine guns is not, strictly speaking, a ban, because it exempts pre - pre-law machine guns, and there is something like 160,000 of those.

[styrgwillidar]

Really, you should read all the filings in the Heller case. The Congress of Racial Equality submitted an amici brief on the history of the 14th amendement and the fact that one of the key issues it was written to address was the confiscation of arms from the newly freed slaves and their allies.

[me/dwc]

You know, people always trot out the old "how about the right to own a nuke" routine. The fact is, anyone inclined to want to own or use a WMD is not going to be deterred by any law against possessing them. 100 years ago and farmer could buy dynamite at the hardware store for blowing out stumps and whatnot. Prohibitions against buying dynamite without special licensing does nothing to prevent people who want to use it for evil purposes from obtaining it. All it does is drive it underground. The fact is than no law against you or I making or owning a nuclear weapon has any effect on those with the wherewithal and inclination to build one. Likewise with RPGs or scud missiles or any other sort of weapon. Laws can only keep weapons out of the hands of the law abiding.

[Tony]

Right but we're not really talking about nuclear weapons, but the gray area between those and 18th century muskets.

[Tax Tax]

If a tax is unfair to one person or group, it should be ended, of course.

[Joshua Corning]

Sadly i agree with Tony.

If he can't use extremes to illustrate a point then no one else can.

If i cannot use Hitler and Stalin and Pol Pot to win arguments then I would be lost.

[Bill]

You know who else used to use extremes to illustrate an argument ....

[Seamus]

And gun controllers believe that, since any line other than ban-'em-all or permit-'em-all would be arbitrary, we should just ban 'em all (with the usual exceptions for the military, active-duty LEOs, and those who have enough political pull to get individual licenses).

[squarooticus]

I think the best way to start is to clearly delineate the arms that are obviously okay: personal firearms like handguns and rifles. Somewhere between that and nukes a line may exist, but we can dispense with the obvious cases and then engage in mental masturbation about the rest at leisure.

[Ballchinian]

The constitution, of course, offers no guidance, and neither do natural rights suppositions.

The original public meaning of "arms" included everything from state of the art small arms to crew-served anti-materiel weapons such as shipboard cannon. It's certainly reasonable to argue that modern innovations like weapons of mass destruction, utterly unknown and probably unthinkable to the ratifying public, don't qualify. But it's utterly unreasonable to pretend that the Constitution offers no guidance. It only offers no guidance if you're too lazy to read the historical sources necessary to figure out what the people actually ratified.

[Tony]

So the constitution is such a living document that it sanctions a basic right to own things that weren't invented when it was written? I can live with that if you let me have healthcare based on the commerce clause.

It's certainly also reasonable to assume that the founders would have thought modern automatic firearms unthinkable, and more like WMD than self-defense or hunting apparatus.

[Professional Critic]

No 1st amendment protection for TV, radio, internet, ebooks, etc...

Right?

[Tony]

I'm the living constitutionalist here.

[Live Free or Diet]

There you go, thinking in principles again.

[Mr. FIFY]

You can have all the health care you want, Tony... just pay for it your fucking self, and don't ask us to empty our pockets to pay your premiums.

[fish]

Winner! In Tonys world it's always someone else's responsibility to pay the freight.

[Ballchinian]

So the constitution is such a living document that it sanctions a basic right to own things that weren't invented when it was written?

It sanctions a basic right to "arms". The word was understood to encompass, as I said, everything from state of the art small arms to crew-served anti-materiel weapons.

The people who ratified the Constitution didn't understand "arms" to mean the then-existing state of the art and exclude all technological advancement any more than they understood "the press" to refer to the Franklin printing press.

It's certainly also reasonable to assume that the founders would have thought modern automatic firearms unthinkable

Um, no, it's not. Lineal precursors to modern machineguns were already in existence by the late eighteenth century.

[Tony]

Where does this linear evolution claim come from? Sounds like you just chose it out of thin air. All weapons are on a linear progression of increasingly powerful penis substitutes. The reductio disproves the claim that "people have an unfettered right to own arms."

How does the pro-treason interpretation account for letting nations keep certain types of arms that aren't permitted for would-be revolutionaries against those nations?

[Hazel Meade]

Under a Nozickian meta-government the state would be a corporation, anyone would be allowed to own such weapons, but would be compelled to purchase liability insurance to cover the collateral damage posed by their use. Any weapon that posed a high risk of doing a lot of damamge to innocent bystanders and property would be prohibitively expensive to own for all but very large corporations - to include governments.

[Tony]

Who does the compelling and the pricing of liability? Genuinely curious. Liability is a strictly (and complicated) legal issue. Nozick's contribution is to say that such a state-like entity could arise without violating anyone's rights, but he neither provides justification for that claim nor an explanation of why that state-like entity should stop at a certain point on the slope toward resembling what we all know as modern states.

[Ballchinian]

Liability is a strictly (and complicated) legal issue.

It's a legal issue, sure, but not a particularly complicated one.

[mad libertarian guy]

It is when the baseline assumption is that personal responsibility is a non-factor, and people are legislated as children until they're twenty goddamn six.

[Hazel Meade]

Who does the compelling and the pricing of liability?

The state does the compelling - you have to show proof of insurance to get a gun license.

The insurance company does the pricing. They have actuaries who can study the statistics on gun-related injuries and fatalities, and can put a price on the risk you're imposing on others by owning a gun.

Insurance companies also compete, so the price should settle somewhere just above the true expected cost.

[Tony]

There we get to the slippery slope problem of Nozick. If the state can force you to purchase insurance when all you want to purchase is a gun, then why not health insurance?

[Hazel Meade]

Liability insurance is for damages you may to do OTHERS.

The individual mandate purports to be to cover your OWN health care costs, although it actually forces many people to pay much more than their actuarial risk justifies.

Different ball of wax entirely.

[Ballchinian]

The defining characteristic of a machinegun is firing multiple cartridges automatically, without manually reloading.

As early as 1718 you had the cylinder-fed Puckle Gun, and by 1777 you had the Belton superposed flintlock. Building on those technologies you have volley guns coming into prevalence in the early- to mid-nineteenth century, then the Agar gun and the Gatling gun by 1861, and finally the Hiram gun, the first true modern autoloading machinegun, in 1881.

If I could kill another man 500 yards away with my penis I wouldn't need guns.

[R]

Ballchinian: Volley guns have existed since the 15th century. As have various types of pepperboxes, which are the handheld equivalent.

[Tony]

If we go far enough back we find that the right to own weapons for self-preservation arose as a restriction on monarchy, but not government, whose power to regulate firearms has rendered in England (where it came from) the right obsolete.

The concept came about prior to modern law enforcement, to which modern states have transferred those responsibilities. And while you'll probably dispute it, the history of "bear arms" arguably points to a collective context.

[styrgwillidar]

No, as noted above, linear development applied to constitutional rights has been normal. Again, from the DC Court of Appeals dicta in Heller:

"But just as the First Amendment free speech clause covers modern comunication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a "search," the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth Amendment standards to thermal imaging search)."

So, your line of reasoning would limit 1st amendment rights to whatever technology existed in the 18th century. There would be no 1st amendment rights extended to the internet, TV, Radio, etc. etc.

[Barely Suppressed Rage]

All weapons are on a linear progression of increasingly powerful penis substitutes.

I was going to engage you in this debate, but when you go for that worn out old bullshit meme, I realize it's simply not worth the effort.

Plus many of your comments above indicate you're not really interested in genuine debate anyhow. You're being disingenuous on a couple fronts and clearly you know it.

[Live Free or Diet]

Has it occurred to you yet that Roe v Wade has already given a conclusive answer to state-coerced healthcare? The core holding in Roe was that medical activities are too intimate and some family matters too personal for the state to intrude.

[Tony]

I don't think so. Roe placed the specific right to an abortion within the general constitutional protection of privacy (which they sort of invented). That doesn't mean government couldn't pay for abortions (or another health procedure), just that it can't ban them.

[2A = Egalitarian Clause]

The Second Amendment should properly be designated "The Egalitarian Clause."

It's a concession to those lower in the pyramidal hierarchy that they were equals with the emergent elite of the new nation.

[Joshua Corning]

it sanctions a basic right to own things that weren't invented when it was written?

The founders did set up a patent system...so yeah the document does not have to be living to incorporate new technology. the founders understood that new shit would come along.

Plus they also put in how you can change the constitution...the intent which was clearly stated by Jefferson was so changes from generation to generations could change adjust it through process.

[Dan]

You don't need to be a living Constitutionalist to think that the right to free speech includes the right to say the word "Google", even though the founders had never heard of that word.

You just needed to understand that "freedom of speech" meant "freedom of speech", not "freedom to repeat speeches we've heard before".

The second amendment works the same way. It applies to personal armaments as a class, not to a specific list of 18th-century weapons the Founders had heard of.

[Tony]

New words will never be able to kill any more people than old words. The analogy isn't convincing.

[Mr. FIFY]

Give up, Dan... Tony hates the First Amendment. He's admitted to it many times, but he'll project it on anyone who doesn't take his dim-assed view of who gets to talk about politics on, say, "the public airwaves".

[ToeKnee]

Some rights are more equal than others!!

[Auric Demonocles]

New forms of communication will be able to reach a larger number of people than older forms of communication.

[Seamus]

What, they didn't have health care in the 18th century?

[Seamus]

You seem to be under the misconception that the commerce clause argument against Obamacare is grounded on the fact that they didn't have CAT scans and antibiotics in the 18th century.

[Live Free or Diet]

It doesn't say which arms. ... The constitution, of course, offers no guidance, and neither do natural rights suppositions.

Bother to pay attention to actual history and natural rights arguments and you will find you are arguing from ignorance. As an obvious example, in US v Miller SCOTUS said the 2nd Amendment didn't apply to the case because "it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Of course the Miller decision has deep flaws, not the least of which was that the defendant was dead and thus had no opportunity to have his side of the case presented.

[Whitey the Injun]

Will you marry me?

[Jim Macklin]

The point must be made that the Constitution and the Bill of [Guaranteed] Rights are not some magic talisman, but a pledge by the United States Government to guarantee the rights of citizens. Further the Declaration of Independence makes it clear that the founding patriots intended that the people always retain the power to throw of the burdens of a government gone rogue.
That potential has played a big part in the governments of the 50 States and the Federal government following or at least giving lip-service to the Constitution.
The 1939 MILLER case states that the people retain their private arms of the type in common military service at the time when and if they are called to duty, further reading HELLER and McDONALD that the rights are not limited or dependent on any connection to a militia, whether organized or unorganized.
Swords, knives, rifles, shotguns and handguns, including fully-automatic arms are probably protected by the "law firm of Miller, Heller and McDonald. 😉 The Hughes Amendment that banned production of newly manufactured automatic weapons is probably unconstitutional in that it prevent or infringes on the right of a citizen to purchase a machinegun although machine gun ownership is lawful in over 30 states. Except for the movies, machineguns are almost never used in criminal endeavors.

[sloopyinca]

Hollywood Reasonoids, help me out! Where do I need to be drinking tonight?

And no wise ass "Blue oyster bar" answers.

This is serious business! (good music is a bonus)

[sloopyinca]

Cavanaugh!

[Colin]

Maybe he'll put on his mobster outfit.

You'll get laid tonight, for sure!

[Hazel Meade]

That is a fascinating point. In Michale Moore's film 'Bowling for Columbine' he implies that the NRA was founded by white racists so they could oppress black people.

There's no mention at all in the film that black people were systematically denied the right to defend themselves with guns in the South, a fact which would contradict Moore's thesis.

[Ballchinian]

That is a fascinating point. In Michale Moore's film 'Bowling for Columbine' he implies that the NRA was founded by white racists so they could oppress black people.

One of many reasons why Michael Moore should be selling cookware door to door rather than opining on the issues of the day.

In fact, the NRA was founded by Union officers, many of them with abolitionist sympathies, who were appalled by the poor marksmanship skills of the conscripts under their command.

[Tony]

But isn't that just a way to use black people as a rhetorical device when we're talking about modern gun politics? The white oppressor of blacks no longer needs a gun to do it. It can be argued that gun proliferation is now an instrument of that oppression, which at its heart (as MLK was trying to argue when he was shot to death) is accomplished with more insidious economic weapons.

[Hazel Meade]

You mean like the drug war?

[Tony]

Yep.

[Hazel Meade]

I'm not sure if the War on Drugs is what progressives usually characterize as an instrument of "economic oppression".

It seems to me that the alternative to the WoD would be a free market in drugs.

Government is the problem here, by banning certain substances and preventing people from freely trading in them.

If you're saying that free markets are a mechanism of economic liberation, then you have lots of company here.

[Tony]

The drug war is a result of collusion between government and private interests, which like all such issues should not be understood as the fault of either sphere independently. I say the correct drug policy is one that entails (with regard to this specific type of commerce) both a freer market and stronger government (i.e. one better able to resist private influence, economic and social, in favor of, say, science.) Ending the drug war means more free access to drugs and hence stricter regulation of them (apart from brute prohibition that creates a black market phenomenon).

[heller]

No private interest is conducting a drug war.

[Hazel Meade]

both a freer market and stronger government (i.e. one better able to resist private influence, economic and social, in favor of, say, science.)

Well, that's an interesting concept. I just disagree that giving the government more power to regulate things makes it less likely to be externally influenced.

IMO, the best way to keep the government from using it's power to engage in "economic oppression" is to prohibit it from interfering in the market in the first place.

[heller]

No Hazel, see Tony is fine if the government screws people as long as it's not influenced by "private interests." In the name of science. Or something.

[Tony]

Well it's not giving government anything it doesn't already have. Prohibition is the most aggressive form of regulation. It should just treat drugs similar to how it treats medicines. I think on balance it's a decrease in the scope of government, but then there's no reason for us to disagree on actual instances of government abuse of power.

[Kant feel Pietzsche]

Tony, you've always been one of my favorite "trolls", because even when I disagree with you, I can still follow your line of logic.

The problem is that you don't seem to particularly give a fuck what premise you start with when you begin to apply your logic.

So, just like with a computer, we get GIGO, because you often start with garbage.

[zo]

You suck so much!!!!

[You mean like...]

black-on-black crime?

[Tony]

Why shoot people when you can get them to shoot each other?

[heller]

Better question: why is it any of your business?

[Tony]

If your risk of being an innocent bystander goes up then you have a stake in policy, not just torts.

I'd say the same is the case if your risk of being involved in gun violence at all goes up as a result of gun policy.

Not saying there's a correlation, but in theory.

[A Serious Man]

Would you prefer being stabbed? Because in Merry Ol' England where they have zero-tolerance gun control criminals just use knives and clubs to assault and mug you.

And you're more likely to be stabbed there than shot in this country too.

[Hazel Meade]

See this is just conspiratorial thinking.

The drug war is, if anything, a misguided attempt to help black communities overcome social problems caused by substance abuse.

It's not really a *plot* to oppress black people. It may have that effect, but that's not the intent.

In fact is a rather classic illustration of how good intentions, of exactly the kind progressives always espouse when advocating more government regulation, tend to go awry.

The War on Drugs might have evolved into means for profiteering and opression, but, like many social engineering projects, it didn't start out that way.

The prohibitionists weren't trying to make money selling guns to law enforcement, or to fuck over the Irish out of racial spite. They were genuinely interested in combatting alcohol abuse.

[me/dwc]

Both war on drugs and gun control have their root deeply embedded in racism. The idea that the war on drugs was put in place to protect the black community is idiocy.

[Hazel Meade]

I think it was put in place for the same reason that alcohol was banned under prohibition. It's considered a moral vice. Drug abuse often leads to other social problems. And a bunch of simple-minded do-gooders figured that the best way to approach the problem is to ban it.

[me/dwc]

Wait a second, who is it that is "getting" gang bangers to shoot each other?

[Whitey the Injun]

*swoon*

[R]

It can be argued...by idiots. I doubt anyone else would seriously advance the claim.

Disarming people, preventing them from defending themselves effectively, is the first step of serious oppression. You can't have the people you plan on yolking or killing shooting back.

[Tony]

What's to stop states from simply deploying those larger weapons that it has but that people aren't allowed individually? I don't think we can stop all conversation on prudence in gun politics with appeals to revolution fetishism.

[Joshua Corning]

What's to stop states from simply deploying those larger weapons that it has but that people aren't allowed individually?

What is stopping them is they have the surgical precision of....well of a nuclear bomb.

Somehow i think using the thread of nerve gassing a city will work very well at preventing people from smoking in bars.....an officer with a gun at his hip on the other hand will do wonders.

[Tony]

I'm just trying to get a handle on how exactly you'd pull this off in the US. I know the US military is the most advanced and well-equipped armed force in the history of the world, because we spend more money on it than anyone ever has. What are you going to do against that? The right is purely theoretical, a concession to your ego and small-mindedness, so therefore useless, and we should focus on the problems it causes.

If you can't tell the difference between a legitimate government and a tyranny, then the world community will probably let you know if we ever change over. You sure as hell don't get to decide that for me.

[Joshua Corning]

The right is purely theoretical, a concession to your ego and small-mindedness, so therefore useless, and we should focus on the problems it causes.

The Taliban are not doing all that bad against the US...the Vietnamese did even better...i suspect a motivated rebellion in the US would do even better if a tyrant ever took over.

The problem for hypothetical rebels in the US is that democracy works in terms of its primary purpose...ie it allows peaceful overthrow of the government every 2 to 4 years...so the seeds of rebellion are too easily subdued for any real insurgency to occur.

But yeah your point is pure bullshit. If a tyrant took over and suspended democratic elections in the US he would not be long to live...even with the most advanced military in the world.

[Mr. FIFY]

Apparently, using Tony's logic, if a police state happens here (more like "when", but I digress)... we're supposed to just bend over and accept our fate.

Especially if Team Blue is in the majority when martial law goes down.

[Ray]

"I'm just trying to get a handle on how exactly you'd pull this off in the US. I know the US military is the most advanced and well-equipped armed force in the history of the world, because we spend more money on it than anyone ever has. What are you going to do against that?"

I don't know. Maybe we should ask the VC or Mujahadeen or Taliban.

[Zeb]

Well, this is all very theoretical as we are still very far from a point where most citizens would feel a need to resist the government. But if we did reach that point, I don't think that the military would be all that united. Groups like the Oath Keepers provide hope that if things ever do get to that point, at least some of the state's agents would refuse orders to attack civilians. You just aren't thinking on a large enough scale, Tony. This isn't about some militia from the woods fighting the government on a battlefield. OF course they couldn't win in such a situation. This is about the whole armed population resisting an oppressive government.

[toxic]

Hasnt the us military been scrapping with the afghan and iraqi militias for 10 years or so with no end in sight? The us people, or a significant chunk of them, absoulutely succesfully resist the military if they wanted to. Not in a stand up battle of course, but with guerrilla warfare.

[heller]

Sure you can. If you would allow people to have guns in
Libya, why would you disallow it in the US?

[Colin]

This is why the first Jim Crow laws were about removing guns from blacks.

After that, the rest were easy.

[zeroentitlement]

The white oppressor of blacks no longer needs a gun to do it.

No, because they're pretty good at oppressing themselves, without help.

[Whitey the Injun]

You complete me

[Joshua Corning]

The white oppressor of blacks no longer needs a gun to do it.

The how come in all left wing northern cities they have all those gun bans and the southern cities which show a greater integration and tolerance and prosperity and closer economic parity for blacks don't have gun bans?

[Dan]

It can be argued that gun proliferation is now an instrument of that oppression

A sufficiently pigheaded individual can argue anything. 🙂

[Mr. FIFY]

Keynesianism = a pretty fucking insidious economic weapon.

[mr simple]

Facts often do contradict Moore's theses.

[Jim Macklin]

The NRA was founded in 1871 by Union Army officers who were appalled at the poor level of marksmanship of the northern soldier as compared to the southern soldier.
AS for groups form as a result of black liberation, the Southern Democrats formed the KKK and set out to kill and disenfranchise as many Blacks as possible. For almost 40 years, te Republican Party was the home for southern Black office holders and elected officials. It wasn't until the 1890s that the Progressive Democrats were able ti lure the south Black vote.
Still not sure how that happened.

[Obama DOJ]

We should outlaw guns for American civilians, while providing automatic weapons to Mexican drug lords....

[Colin]

Just as long as it's done "under the radar."

[Obama]

If it's not on the front page of the New York Times, my administration isn't doing it!

[Troy]

All I know is if you want to go fishing in a little girls underwear looking for advil, Thomas is your man. Fucking pedophile.

[heller]

Tony, why are you acting like we have to defend the Constitution, an incredibly flawed document written by non-libertarians?

[Tony]

You don't, I'd be glad if you removed the 2nd amendment from your arsenal of justifications for weak gun laws.

[Faux Tony]

You don't, I'd be glad if you removed the 1st amendment from your arsenal of justifications for weak sedition laws.

[Enjoy Every Sandwich]

Removing the 2nd Amendment would NOT grant the federal government the authority to regulate firearms.

[govco]

What is the obsession with mandatory insurance? WTF

[canada goose coat]

Any informed borrower is simply less prone to fraud and misuse.

[north face shop]

Hello everyone thanks for good information.

[Kant feel Pietzsche]

I think reasonable (drink!) people can differentiate between weapons intended for hunting/sport/self-defense, and those weapons which would be considered offensive.

For instance, a machine gun is designed to give one person the ability to kill large numbers of people efficiently. So it wouldn't normally be considered a defensive weapon unless the opponent already had them. There would be a valid reason for restricting them, but not for restricting a semi-automatic weapon.

Same with a nuke.

Now, dishonest and agenda-driven motherfuckers are another matter entirely.

[Hazel Meade]

I hate the term "semi-automatic".

All that a 'semi-automatic' does is load the next round for you. You still have to pull the trigger every time. Using the word automatic just gives people the impression it's a machine gun of some kind, which scares people who don't know anything about guns.

[Kant feel Pietzsche]

I know that. That's why I listed it as a non-restricted item. If other people are too dumb to know that, they are disqualified to even discuss the subject.

[Hazel Meade]

I just think that the terminology biases the debate. You can complain that people who don't know what a semi-automatic is should be disqualified from discussing gun control, but they still vote, and they are more easily manipulated when the terms used don't really describe the weapon accurately.

[R C Dean]

I think reasonable (drink!) people can differentiate between weapons intended for hunting/sport/self-defense, and those weapons which would be considered offensive.

Its somewhat of an axiom that there is no such thing as a "defensive" weapon.

And, of course, there is no textual support for a limitation on 2A rights that excludes "offensive" weapons.

I'm comfortable landing on an interpretation that allows civilian ownership of standard issue military weapons, myself. To the extent the reference to "militia" means much of anything, I think that's what it means: that any citizen has the right to own weapons that would be appropriate for a member of the militia.

[tarran]

Two points:
1) In a free market, nuclear bombs and F-16's would not even exist.

2) In the U.S. an armed rebellion in 1946, chased a corrupt government out of office in Athens, Georgia. I guess according to some they should have continued waiting for the Great White Father in Washington DC.

[robc]

Athens, Tennessee.

Big fucking difference.

[Barely Suppressed Rage]

There is plenty of evidence for anyone who cares to do the research (which ain't all that hard these days) to clearly indicate that the "arms" protected by the Second Amendment were those having some reasonable relationship to the preservation or efficiency of a well-regulated militia, or that are part of "the ordinary military equipment," or whose use "could contribute to the common defense."

The U.S. Supreme Court plainly indicated as much in U.S. v. Miller.

Tench Coxe infamously wrote, in discussing the Second Amendment, that the the swords of the militia "and every terrible implement of the soldier are the birthright of an American."

The First Amendment does not protect only specific items of 18th Century technology, such as quill pens and movable wooden-block type printing presses, but rather protects fundamental principles of a free press and free speech - whatever the mode or method of "speaking" might be. Else modern, high-speed, computer-controlled printing presses could be banned.

In the same way, the Second Amendment does not protect only muskets and sabers. It protects "arms," in particular the types of "arms" of use to a body of the citizenry organized as a militia in the common defense - i.e., military-style arms. At the very least, this includes smooth-bore and rifled long guns and sidearms. The intent was that the citizens be at least as equally well-armed as any standing army, and be trained and practiced in the proper use of those military-style arms.

The irony is that under the "sporting use" interpretation first developed in the 1960s, it's ok to ban or restrict so-called "military-style" firearms, and those that are shown to be of "sporting use" are ok. But this plainly and clearly runs counter to what the SCOTUS said in U.S. v. Miller, in which the court explained that the 2A was intended to protect the right to possess militia-style arms.

Just as we can apply the First Amendment to protect your computer and internet access, we can apply the Second Amendment to protect my right to own an AR-15 and Colt .45 1911 A1.

[Ken]

But I'm talking about technology. If we're going by what they understood, ok we're allowed 18th century arms only.

Hardly. The people who wrote the Constitution lived in a period of huge and continuing scientific and technological advance. Their understanding was clearly that they were drafting principles, not specific details.

Within the lifetimes of Jefferson and others, technology had advanced to produce power-driven printing presses, the use of which they would certainly have considered to be protected by the 1st Amendment. Similarly, the rifle, which was relatively rare during the revolution, would have been considered to have been protected, even though only elite units used them at the time.

Technology is just the current details, which always change with time; the principles remain the same.

[Jim Macklin]

The "arms" that are protected certainly cover individual weapons and very likely basic crew served weapons.
The 1939 Miller SCOUS case stated that when called forth, the people were required to appear, bearing their own private arms of the type then in common service with the arms of the regular army and naval services.
Nuclear weapons, poison gases, ICBM are just a "smoke screen" used when there isn't any valid op point legal argument to make.
The individual right to keep [to retain possession, not surrendered to some government arsenal] and bear [to carry, for lawful purposes] arms shall not be infringed.
This means that any gun control plan that starts with the premise, "how can we delay and discourage gun buyers" is unconstitutional.