The Second Amendment's Next Chapter

Northwestern Law Review symposium

Friday, October 9, the Northwestern University Law Review and the Duke Center for Firearms Law will be presenting a symposium "The Second Amendment's Next Chapter." The symposium runs from 9 a.m. to 3:45 p.m., Central Time. If you would like to watch some or all of it via Zoom, you can register for free on the Symposium's webpage.

Here's the schedule:

Panel 1: The Shape of the Right. Moderator: Kate Shaw. Panelists: Alice Ristroph, Renee Lettow Lerner, and Jennifer Carlson.

Panel II: The Power to Regulate. Moderator: Abbe Gluck. Panelists: Reva Siegel & Joseph Blocher, Nelson Lund, Brannon Denning, and Jake Charles.

Keynote Address: A Discussion with Senator Chris Murphy About His New Book, "The Violence Inside Us."

Panel III: Theory and Conflict. Moderator: Joseph Blocher. Panelists: Mike Dorf, Darrell Miller, Robert Leider, and Dave Kopel.

Panel IV: Firearms and Chicago. Moderator: Sanford Levinson. Panelists: Stephanie Kollmann, Zach Fardon, Kofi Ademola.

My paper, for panel III, is Fewer Guns, More Genocide: Europe In The Twentieth Century. Here's the abstract:

This Article compares the relative dangers of excessive gun ownership and of excessive gun control, based on the historical record of the twentieth century.

Part I presents homicide data for the United States and Europe during the twentieth century. First, the Article considers gun death rates from ordinary crimes—robberies, domestic violence, and so on. Based on certain assumptions that bias the figure upward, if the U.S. gun homicide rate from ordinary crime had been the same as Europe's, there might have been three-quarters of a million fewer deaths in America during the twentieth century. The figure is a data point for the dangers of insufficient gun control.

Next, Part II presents data on mass murders perpetrated by governments, such as the Hitler or Stalin regimes. In Europe in the twentieth century, states murdered about 87.1 million people. Globally, governments murdered well over 200 million people. The figure does not include combat deaths from wars. As will be detailed, the death toll of all the people killed in battle in the twentieth century is much smaller than the number of noncombatants killed by governments—such as the Jews murdered by Hitler, or the Ukranians murdered by Stalin. The mass murder by government figures are, arguably, data points for the dangers of excessive gun control.

Part III shows that totalitarian governments are the most likely to perpetrate mass murder.

Part IV argues against the complacent belief that any nation, including the United States, is immune from the dangers of being taken over by a murderous government. The historical record shows that risks are very broad.

The record also shows that governments intent on mass murder prioritize victim disarmament. Such governments consider victim armament to be a serious impediment to mass murder and to the government itself, as described in Parts V and VI.

Finally, Part VII consider the efficacy of citizen arms against mass murdering governments. Citizen arms are most effective as deterrents. If a regime does initiate mass murder, rebellions seeking regime change usually fail. However, even without changing the regime, the historical record shows that armed resistance can accomplish a great deal, including the saving of many lives.

A summary of the article appears in the October issue of Reason magazine: Gun Control Puts Your Life at Risk.

Comments

[Dan Schiavetta]

The idea that the Second Amendment's right to bear arms was designed to prevent tyranny is unhinged.

[Brett Bellmore]

Except that we have that on the word of people who were around at the time it was discussed and ratified, and who talked with the drafters.

It's somewhat indirect: A militia system prevents tyranny, by making the government's armed force the people themselves, and so unusable to oppress the people.

The right to keep and bear arms preserves the militia system, by assuring an armed populace even in the face of a government that wants rid of the militia system.

[Longtobefree]

The key factor of a militia is that when the government "calls out the militia", the militia can say "no".
This is a major reason why the founders preferred a small standing Army and a populace armed with the military weapons of the times.

Brown Bess vs. Kentucky rifle; other than more weight, less accuracy, and a bayonet lug, the same gun.

[Dan Schiavetta]

The Framers of the federal government were careful to provide that this government could be violently overthrown.

Unhinged.

[Sebastian Cremmington]

Anarchy is equally as bad as tyranny. So the Constitution must balance liberty with order...that is just the way civilization works.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Another fool who conflates anarchy and chaos. They are not the same,

[Smith_FT_MI]

Correct.

[Sebastian Cremmington]

Incorrect.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Even Snopes admits that

Thomas Jefferson once said that "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

[Dilan Esper]

The reality is they did make statements talking about a right of violent revolution but those statements were propaganda. When they actually wrote a Constitution, they defined only one crime, treason, and made illegal the violent revolutions that they had claimed to be a basic human right.

Given that, it's silly to interpret the Second Amendment as protecting a right to commit treason. In fact, the reference to a well-regulated militia guaranteeing the security of a free state makes clear that it is describing an armed populace that is called up IN DEFENSE of the government, NOT to revolt against it. The idea was something like Switzerland.

[Kevin Smith]

The notion that a group of men who, had less than a decade earlier, been involved in a treasonous revolution against the crown of England wouldn't consider that treason might again someday be justified seems a bit far fetched to me

[Dilan Esper]

You might consider that when people form governments, they often change their minds about revolution/treason. This is not something that is exclusive to the framers- look at other revolutions throughout history, and you will find the same thing.

The reality is no government will ever provide that it is lawful to overthrow the government. Revolution is always against the law, and when it fails, the revolutionaries, in any functioning system, face severe punishment. (Indeed, an example where they didn't was the American Civil War, and many of us feel that it was a great injustice that the jerks who broke up the country in an attempt to protect their continued ability to rape their slaves were not put on trial as they should have been.)

It makes no sense to talk of a right of revolution. Revolutions happen, and they are always illegal if they do. But if you win, you get the opportunity to declare what you did, and only what you did, legal.

[Brett Bellmore]

They weren't idiots: There's no point in explicitly legalizing revolt, because the government you should revolt against won't care if it's legal. And the government that you shouldn't revolt against is still going to face the occasional traitor.

[Sebastian Cremmington]

I thought Jefferson Davis discovered the “Revolt Clause” in the Constitution??

[Smith_FT_MI]

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

I cannot immediately provide a citation but, in addition to the narrow language of the above, it is my recollection that commentary thereon concurs that it is to be only narrowly construed. One might argue that a revolution against the Federal government constitutes "levying War against them" but Kevin Smith's earlier post I believe makes a good point that this might be too broad a reading.

Moreover, please note the word "them". First, it would seem to indicate that it is directed toward "levying war against" the State governments, not the Federal government. Second, while it might be too gratuitous to suggest that it would require hostile action against _more than one_ State government, a general uprising, rather than resistance to isolated tyranny, might well have been the primary object.

Finally, there is of course the question of what constitutes "levying war". Given that a sizable number of those at Philadelphia in 1787 were also present there in 1776, it boggles the mind to conclude that they thereby were castigating themselves.

[Dilan Esper]

While it is narrow and requires a strong standard of proof, there is no doubt that the fantasies of the violent Second Amendment advocates about overthrowing the government fall squarely within levying war on the United States.

[Absaroka]

"it’s silly to interpret the Second Amendment as protecting a right to commit treason."

Sure. If you start a rebellion and fail, you can't avoid the consequences by saying 'but the 2A gives me a right to revolt!'.

What it does is ensure the population at large has the means to successfully revolt if a sufficient majority decides they are desperate enough to do so.

[Dilan Esper]

That's not true though. Even in a maximalist Second Amendment interpretation, there's nothing in the Constitution that guarantees that the public has enough arms to succcessfully revolt.

[Sebastian Cremmington]

We had a revolt in America...the Civil War.

[Brett Bellmore]

Thus, "if a sufficient majority".

[Absaroka]

"Even in a maximalist Second Amendment interpretation, there’s nothing in the Constitution that guarantees that the public has enough arms to succcessfully revolt."

It doesn't guarantee they have them; just that they can have them if they so choose.

[Chuck P. (The Artist formerly known as CTSP)]

The reality is they did make statements talking about a right of violent revolution but those statements were propaganda.

That directly contradicts the framers subscribed and sworn statements about revolution:

"Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government"

it’s silly to interpret the Second Amendment as protecting a right to commit treason

It is only silly if we accept your strawman premise that abolishing any government acting without the consent of the governed is an act of treason. The DOI is a specific example of when such a revolution is not treasonous.

it is describing an armed populace that is called up IN DEFENSE of the government

That is utter nonsense. The Constitution is prefaced with "We the People of the United States". I have yet to see a persuasive argument as to why "We the People" and "the right of the people" are not describing the same set of citizens. Chief Justice Taney knew it did.

[Dilan Esper]

That directly contradicts the framers subscribed and sworn statements about revolution:

It certainly does. You see, the framers lied a lot. Which is what you might expect from the type of people who sign an agreement that says all men are created equal and then go back home and rape their Black slaves.

[Chuck P. (The Artist formerly known as CTSP)]

So, no discussion, just another straw man.

[Smith_FT_MI]

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,
and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

I trust that a citation to the above is unnecessary.

[Brett Bellmore]

Revolutionaries not militantly opposed to revolution, news at 11.

[jb]

Let's posit for a moment that the founders indeed wanted an individual right to bear arms as a check against governmental tyrrany. Given the history of the Revolution, it seems plausible and similarly it seems like a plausible reading of the second amendment.

I'm curious at this point whether we think that an individual right to bear arms would be EFFECTIVE as a check against a tyrannical government. In particular, it seems like the asymmetry between the types of weaponry available to governments versus citizens has grown dramatically over the years. Since revolutionary times, the types of firearms available to both citizens and governments have improved with regards to accuracy, reliability, range, and rate of fire. But whereas the citizen of the past could obtain a horse and upgrade from infantryman to cavalry, the government now has access to, e.g., aircraft, drones and armored vehicles that give them vastly heightened capabilities over the citizenry.

So I looked to Part VII of the paper, which makes the argument that an armed citizenry can effectively resist the government and I find the evidence lacking. Section A, which focuses on deterrence, gives no examples after 1789. Section B specifically lays out the challenges that rebels face. Section C makes the case that armed resistance can save lives, but gives only one example of rebels with long term success (in Sudan); in all of the other examples, the tyrant eventually wins.

I definitely don't pretend any expertise in this area, so I'm curious from people who follow along more closely--do we really believe that an armed citizenry would be a meaningful check on a tyrant with the full support of the US military?

[Sebastian Cremmington]

An individual right isn’t an effective check on tyranny because Jefferson Davis organized an army when tyranny in America reared its ugly head. An individual RKBA has more to do with the right to privacy and as Cruikshank asserts—we have always had a right to self defense with a gun that has nothing to do with the 2A.

[Dilan Esper]

How could you have "always" had the right to self defnese with a gun when for the first few million years of humanoids' existence, there was no such thing as a firearm?

[Sebastian Cremmington]

“Arms”. Cruikshank correctly asserts:

“The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States.”

So all that was necessary to get to an individual RKBA was to incorporate Cruikshank.

[Chuck P. (The Artist formerly known as CTSP)]

The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

Why should the 2A's "shall not be infringed..."' constrain only Federal legislative power? Whereas the 1A specifically states, "Congress shall pass no law..." the 2A's admonishment, with no qualifier, should constrain the Executive branch, give notice to the Judiciary branch and, after incorporation, constrain the states and their subdivisions as well.

[Sebastian Cremmington]

So why was McDonald necessary??

[Chuck P. (The Artist formerly known as CTSP)]

I concur.

[Sebastian Cremmington]

So the 2A was drafted as an individual right that protected all Americans unlike the 1A that mentions Congress...but when Cruikshank was written everyone had forgotten that the 2A applied to everyone (unorganized militia) in the “free state” of America. Or perhaps Cruikshank gets it right and the 2A is a federalism provision that protects the state militias from a power grab like the one that happened at Lexington and Concord??

[Chuck P. (The Artist formerly known as CTSP)]

So the 2A was drafted as an individual right that protected all Americans unlike the 1A that mentions Congress…but when Cruikshank was written everyone had forgotten that the 2A applied to everyone (unorganized militia) in the “free state” of America.

Yes. The 2A was unambiguously recognized as an individual right in 1856 by Chief Justice Taney when he listed it directly in line with the rights of the 1A that citizenship confers. If you can't fathom why the court ignored Dred Scott in Cruickshank, it is only because you lack imagination.

"For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons... who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law... and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.."

[Dilan Esper]

You said with a gun, not arms.

There isn't a natural right to do anything, but even if you subscribe to a theory of natural right, a right that depends on a technology that needs to be invented can't be a right in the state of nature. It's like saying you have a natural right to use a smartphone.

[Sebastian Cremmington]

That’s because the 2A arguments have devolved into arguments about guns. But Cruikshank was correct that Americans have a right to self defense with a gun that arises from liberty interests/right to privacy...I suggest you read Stevens’ McDonald dissent which is very good up until the very end when he reverts to knee jerk partisan hackery.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I’m curious at this point whether we think that an individual right to bear arms would be EFFECTIVE as a check against a tyrannical government.

Yes. Otherwise why do governments universally try to diminish the right? "Because it scares the piss out of them" is the right answer.

[jb]

Eh. I don't find this a very convincing response. Tyrannical governments try to suppress all sorts of private rights. That doesn't mean that the exercise of those rights are adequate to overturn or even prevent tyranny.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

So go ahead and give up, roll over, play dead, and pretend you enjoy it.

I won't waste a bullet trying to save your sorry ass if you won't even try yourself.

[Artifex]

I’m curious from people who follow along more closely–do we really believe that an armed citizenry would be a meaningful check on a tyrant with the full support of the US military?

I doubt you could get full support from the US military and even if you did consider Vietnam, Iraq and Afghanistan. In all three cases a fair amount of the population was on the side of the US. How did that work out ? Now consider that the US population is much better armed than the previous three examples.

[Smith_FT_MI]

I concur w/ Artifex.

Jefferson followed the sentences I quoted in an earlier reply with:
"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."
The corollary is that if the evils are insufferable, then it is to be expected that a sizable body of the citizenry would resist and organize. If there was a sufficient volume of armed citizens deployed would it be anticipated that there would be "full support from the US military" to annihilate them? Would they not be likely to consider that perhaps the grievances might be justified and the civilian authorities possibly disregarded. (I believe that most of the military are familiar with the Nuremberg trial proceedings.)

If though we have a Federal government that is so inclined to and might have the power to compel such a result, we have a lot more problems than just occasional abuse of the RKBA!

[Absaroka]

"do we really believe that an armed citizenry would be a meaningful check on a tyrant with the full support of the US military?"

Sure.

Answer #1: When we go to war with a foreign country that is attacking us, we want to make them stop. We are willing to do whatever it takes to make them stop (cf. Dresden, Hiroshima, ...). That doesn't work as well when you are a tyrant trying to rule your own country - who wants to be emperor of the post-bombing Dresden? Nuke 'em til they glow doesn't leave you much to rule over.

Answer #2: Even for a ruthless tyrant, completely without scruples, counterinsurgency takes a lot of troops. Napoleon kept a couple of hundred thousand troops in Spain during the Peninsular War without ever even remotely pacifying it. The Spanish population at the time was around 10M. Even if you halve the number of troops to account for Wellington, that's a population:troop ratio of 100. The U.S. has a population of 330M and a military, active+reserve, of a little over 2M. Heck, in the U.S. 2M kids turn 18 every year, so that's a force equal to the current military every year.

Answer #3: You are placing a lot of emphasis on technology, e.g. drones. Where do those drones come from? If the civilian population is united against tyrant+military, those drone factories are going to be supplying the insurgents, not the military.

Yugoslavia in WWII is another classic example - the Nazis weren't constrained by any sense of restraint at all, but never pacified the country at all - as in Vietnam, the Germans only controlled whatever local area they were standing on.

[jb]

I agree that in a scenario in which a tyrant has only minimal support from the populace, they're probably going to have a rough time, and I think this matches most of the examples given by commenters here, which are attempted military occupations of a resistant foreign population.

But the examples of genocide and tyranny in the paper seem like situations where there is actually a broad base of support for the tyrant. Hitler and Stalin and Mao were ruthless in crushing dissent and willing to perpetuate genocide against portions of their populations, but at the same time had a strong base of internal support as well. And ultimately, none of these regimes were toppled by individuals with personal weapons. Deposing Hitler required foreign armies, the August coup at the end of the Soviet Union was defeated not with guns but with mostly nonviolent resistance, and China...well, it's tyranny is some combination of still going strong and somewhat dissipated by the influences of democracy and capitalism.

[Sebastian Cremmington]

Why don’t you reference what happened in America when a tyrant gained control of the federal government?? Remember, we had a civil war we refer to as the Civil War?? I guess that subject doesn’t get covered in home school. 😉

[Absaroka]

"Hitler and Stalin and Mao were ruthless in crushing dissent and willing to perpetuate genocide against portions of their populations, but at the same time had a strong base of internal support as well. And ultimately, none of these regimes were toppled by individuals with personal weapons."

Well, the victims of the Holodomor, Great Leap Forward, or Holocaust generally didn't have weapons in order to resist. If you consider the Holodomor, for example, people who had arms probably would have used them on the food collectors rather than starve to death. That's the point - Stalin could take 100% of the food from the Ukrainians *on the cheap* because they were all unarmed. If they had been armed, well, people will resist before watching their kids starve. Stalin would have had to spend a lot, lot more to steal all their food.

[Sebastian Cremmington]

Excellent point, the 2A was meant to protect the KKK and Al Qaida sleeper cells in America. The Framers believed it was better to devolve into Afghanistan than to live under tyranny. 😉

[Rossami]

First, jb, I think you assume too much in your hypothetical. Most tyrants do not have the full support of their military, at least at first. Quite a few tyrannical governments of the 20th century came to power as the military carefully stayed on the sidelines.

Second, as someone who has studied this closely from inside the US military, you are greatly overestimating the power of a small military to control an armed populace. Look, for example, at the lessons of the various Afghanistan wars. Despite vast differences in resources, armament and manpower, the USSR was soundly defeated. Vietnam did the same to the US, again in the face of incredible technological advantages. Going further back, you could look to Zulu defeats of the British. History is full of examples where technological advantage is less determinative than you are assuming.

[Sebastian Cremmington]

Yeah, the Framers fought for independence so they could live in Afghanistan! Hilarious!! Farmers didn’t want tyranny OR anarchy...which is why the 2A promotes the preexisting state militias as being necessary for a “free state”. So the 2A is a federalism provision much like the Establishment Clause.

[Rossami]

If your not going to at least pretend to argue in good faith, go bother someone else.

[Sebastian Cremmington]

Lol, did I make you pee pee your panties?? Now you’re using your ball to cover the pee stains and going home...classic move. 😉

[Apollonius]

What basis do you have for your assumption that a tyrant would have the full support of the US military?

Consider all of the steps, and all of the layers, involved with any type of military action. Multiply them if talking about action within the United States or Territories.

Now consider that the people all through that chain of authority are highly unlikely to support a true tyrant . . .and it doesn't take many of those to derail orders, take equipment out of service, etc.

Thus, even if someone like Swallwell or Kamala were in the Oval Office, an order to destroy Saint George, Utah would not likely be carried out -- and there aren't many other options, if calling out the military, than destruction of whole cities.

Once such orders were issued, the word would go out rapidly to intended targets nationwide, and what few military resources would actually turn out would find themselves neutralized, one way or another.

[susancol]

Hmm, only a decade or so after the army of the (if not tyrannical, certainly unpleasantly bossy and intrusive*) government marched to seize the arms and gunpowder in Lexington and Concord and to, if fortunate, arrest some known rabble-rousers like that miscreant, Sam Adams, the Framers of the Constitution would never think that private arms might be important . . . Riiiiight.

*quartering soldiers, among other things

[Sebastian Cremmington]

Bingo, 2A and 3A are a response to specific abuses which is why we know the word “militia” in the 2A refers to the several state militias referred to in the body of the Constitution.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No, militia was originally all males 16 to 45, regardless of state involvement in organizing. "Well-regulated" has nothing to do with legislation and regulations.

[Sebastian Cremmington]

Wrong, the word “militia” in the 2A is the same one mentioned in the body of the Constitution...and the 2A was a response to the events at Lexington and Concod which involved a central store of milita arms.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"same one"? What does that even mean? They used lots of words more than once in the Constitution, with different meanings.

Nope, you are dead wrong. "Militia" was not a reference to any part of government. It was The People.

[Sebastian Cremmington]

Lol, you contradicted yourself in your short comment...great job!

[Bob from Ohio]

Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.
James Madison

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."
James Madison

https://www.azquotes.com/author/9277-James_Madison/tag/second-amendment

[Sebastian Cremmington]

Bingo. IIrc, in a Volokh law review article he posits that the state militia can’t be a check on tyranny because the Constitution allows the federal government to call forth the state militias...except the Constitution gives the states the power to appoint officers so the state militias will always be loyal to the state governments. So just look at how the Civil War played with federal military officers remaining loyal to their respective states.

[Rossami]

Well, if you mean that it's an idea that's flexible and can be opened or closed at will, you're right. There are no hinges. It's an enduring principle - more like a solid rock wall.

[Sebastian Cremmington]

So if the 2A was to protect the right of self defense for all Americans why did the Framers and several subsequent generations believe the BoR only applies to the federal government??

[Aktenberg78]

Because that's the way Constitution was written, but it was a moot point, because most states had a similar protection in their Constitutions.

[Sebastian Cremmington]

Virginia didn’t. The Louisiana Constitution specifically permitted regulation of concealed weapons for over a century. Texas heavily regulated handguns outside the home up until the 1990s. So the 2A reads—in a free polity the RKBA must not be infringed...and yet it only applied to the unorganized militia in federal territories and DC?!?

[Aktenberg78]

Yes, regulation of concealed weapons, at a time when most people open carried.

Regarding Texas, so what? Texas' carry ban was passed after the 14th Amendment was ratified, but while its incorrect understanding was still in place.

[Sebastian Cremmington]

But Texans held themselves out as being pro-2A. So pursuant Kavanaugh’s standard of “text and tradition” handguns have TRADITIONALLY been subject to heavy regulations outside the home even in states with open carry of long guns.

[Aktenberg78]

And liberals "hold themselves out" as being patriots. What's your point?

[Sebastian Cremmington]

So Texans that took pride in driving around in trucks with a gun prominently displayed in the back window all the while drinking Lone Star beer were secretly anti-gun?? Ok. 😉

[Hank Ferrous]

One not liking something doesn't make it 'unhinged.'

[Cal Cetín]

Grab your ankles, clingers, there's some more progress coming your way!

/sarc

[anonymous_hominid]

No panel on overthrowing state governments?

[Dan Schiavetta]

Yes, they just decided to add one on kidnaping the Governor of Michigan.

[Sebastian Cremmington]

The word “militia” in the 2A refers to an military force that would be controlled by the state government.

[Rossami]

No, it doesn't. Or more precisely, that is only a subset of the "militia".

[Sebastian Cremmington]

Except I pointed out that that particular cite in Heller contains a major error...so nobody has ever provided evidence that the word “militia” in the 2A refers to the “unorganized militia”. Furthermore, why would the Framers have enumerated a right that only applied to the unorganized militia in DC and federal territories??

[Chuck P. (The Artist formerly known as CTSP)]

so nobody has ever provided evidence that the word “militia” in the 2A refers to the “unorganized militia”.

Has anybody ever provided evidence that the word "arms" in the 2A refers to weapons and not "the severed upper limbs of their fallen enemies"?

How about we take the word at face value and apply its common meaning in context? Who met the British at Lexington/Concord? The Sons of Liberty, an unorganized militia. A private group acting completely outside the sanctioned government.

I don't use that example lightly as the British marched on Concord to search for a cache of arms which they proceeded to burn. The minutemen who had subsequently gathered outside the town proceeded to expel the Redcoats by use of their personal arms.

Context.

[Sebastian Cremmington]

Exactly, Lexington and Concord involved a central store of militia arms. When Jefferson Davis formed a militia in 1848 he did so on the condition the federal government would supply his militia with rifles. Then when Jefferson Davis saw the face of tyranny in 1861 he again seized weapons from federal forts and he got weapons from state militia armories and tried to buy military weapons on the open market while organizing an ARMY!! So he didn’t depend on the unorganized militia providing their own weapons. Men with their own weapons can obviously wreak havoc for a little while like with the Whiskey Rebellion...but Washington called forth the several state militias and suppressed the rebellion. So Washington didn’t stand down and say “there goes the unorganized militia exercising their RKBA so I must respect them”!?!

So your Sons of Liberty example is beside the point because the Framers wanted to prevent tyranny while also preventing anarchy—balance liberty with order. So by having well organized state militias with officers loyal to the states you prevent a tyrant from ever gaining power because they know they will fail.

[Chuck P. (The Artist formerly known as CTSP)]

So your Sons of Liberty example is beside the point

No, it is not beside the point. It is the point. The Sons of Liberty were unequivocally a militia. You want to assign some complicated revisionist interpretation of the meaning of "militia", when the simple definition will suffice. Similarly, "the right of the people" refers to the same people from the preamble, "We the People if the United States", the simplest interpretation of the word "people".

You are deliberately obfuscating the plain language of the 2A. If the framers had meant 'the right of organized state militias to keep and bear arms', why wouldn't they have just written that unambiguously? They didn't because that's not what they intended.

[Sebastian Cremmington]

They did. Once again the cite in Heller that posits “militia” means “unorganized militia” contains a major error and it therefore fails. Cruikshank expresses the plain meaning of the 2A and Heller didn’t follow stare decisis.

[Chuck P. (The Artist formerly known as CTSP)]

You completely ignored the main thrust of my argument about plain language and continue to harp on Cruikshank, which is silent on both "militia" and "people", and is completely moot as to the 2A after incorporation. It also ignored stare decisis from Dred Scott I referenced above.

And please, continue to educate me about how the founders didn't mean what they actually subscribed and swore to and instead meant something else completely different.

[Rossami]

You demonstrated nothing of the sort. Though I will concede that you probably think you did...

[Sebastian Cremmington]

I did, the body of the Constitution stipulates the states appoint militia officers...so that particular cite in Heller fails. So nobody has ever provided evidence that the word “militia” in the 2A refers to the “unorganized militia”. Sorry, Volokh got a little too cute by half...not that anybody cares. 😉

[Brett Bellmore]

"so nobody has ever provided evidence that the word “militia” in the 2A refers to the “unorganized militia”."

Why would this even matter, when it isn't the militia who are guaranteed the right, but instead the people?

[Sebastian Cremmington]

So why was McDonald necessary?? I can’t believe you replied to me knowing you would inevitably lose the argument like you always do!! It’s like Sideshow Bob stepping on a rake!! 😉

[Hank Ferrous]

I suspect that it's safe to guess that militia applies to both state-controlled and local, as communication and travel times were a factor when 2A was written. The insistence on militias in state control is a shibboleth of the liberal/left, who can't seem to imagine units in action without being given permission, it seems. See for instance, any decentralized fighting group, to include within US armed forces.

[Sebastian Cremmington]

So why didn’t Jefferson Davis rely on the unorganized militia to fight the tyrant Lincoln?? Instead the respective state governments took the lead on fighting tyranny in 1861...which strengthens the argument that the 2A is a federalism provision.

[Lee Moore]

“And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?... The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt! If...if...We didn't love freedom enough. And even more – we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.”

[Sebastian Cremmington]

Text and tradition—so we have a right to open carry but it can be regulated fairly liberally by cities and states...just not out of existence.

[Hank Ferrous]

You'll find that it's concealed carry that is more often regulated; people with a tendency toward irrational fear and outrage focus on restricting open carry.

[Sebastian Cremmington]

After what happened to Kyle Rittenhouse I would be very reticent to open carry due to the increase in homelessness. So he was charged by a suicidal homeless person and now he is probably going to prison for a few years. If he wasn’t open carrying the homeless nut would have ignored him.

[Sebastian Cremmington]

Panel III—tyranny happened in America...and Jefferson Davis organized an army to fight the tyranny of Lincoln. So in 1861 Davis didn’t blow his shofar and summon armed racist toothless hillbillies out of the Ozarks and Appalachia...a lot of information exists out there about the Civil War if you are interested in learning more about it. 😉

[Cal Cetín]

Was the Civil War, like, *really* about slavery, man?

I can't mention who was *really* behind it, but it rhymes with "Bill Uminati."

[Sebastian Cremmington]

The underlying cause of the Civil War is irrelevant to this discussion—the South in good faith believed Lincoln was acting like a tyrant. So we have a real life example of tyranny rearing its ugly gaunt head in America and we all know how fighting that tyranny played out—the state governments led the revolt and even attracted federal military officers loyal to their respective states. The states then organized an army to fight the tyrant.

[Chuck P. (The Artist formerly known as CTSP)]

ARTICLE IV - SECTION 4 - The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Once he took office, Lincoln had a Constitutional duty to protect against domestic violence. The CSA ceded their legislative authority by refusing to convene.

[rsteinmetz]

That a really interesting take on history but largely wrong.

Jefferson Davis was appointed President of the Confederate States on February 18, 1861, prior to Lincoln's inauguration on March 4, 1861, before Lincoln could do any tyrannizing (Davis wasn't elected until February 22, 1862). On April 12, 1861 South Carolina troops, lead by a Louisiana General opened fire on Fort Sumter, the first military action of the Civil War. Lincoln didn't call for volunteers until April 15, 1861 after the secession of several states, the organization of the Confederacy and the attack on Fort Sumter on April 12, 1861, barely six weeks after he was inaugurated. The Union's first offensive action was to occupy Alexandrian and Arlington heights beginning May 24, 1861.

I proud to have been born in West Virginia, the only state to secede from the Confederacy.

[Sebastian Cremmington]

Furthermore the South didn’t actually want to win the war...they wanted to throw a huge tantrum in order to get a Democrat elected in 1864, and the Democrat would then support annexing more slave states to keep the Senate balanced. So just think if the South had won and created a new country?? Slaves simply would have had to run away to Pennsylvania and then the South has no recourse to get them back! So secession was a political maneuver that blew up in their face...much like Republicans sticking by Trump and W Bush.

[Hank Ferrous]

I suspect this is complete bollocks, as you've provided no source citations. Ad hominem attacks count for nothing.

[Sebastian Cremmington]

Use your brain!! If the CSA won then they would no longer have federal marshals kidnapping runaway slaves in PA and returning them South. Furthermore, Andrew Jackson’s vision was very clear and it made perfect sense from a national security perspective—one nation from sea to shining sea with Rio Grande and desert to the south and Great Lakes and mountains and frozen border to the north.

[Sidney r finkel]

"Part IV argues against the complacent belief that any nation, including the United States, is immune from the dangers of being taken over by a murderous government."

Yep those ultra left wing armed terrorists who tried to overthrow the government of Michigan are the proof that tells us that unlimited arming of citizens is the right thing to do. Oh, wait a minute . . . .

[Cal Cetín]

It looks like we need a law against kidnapping. Then people wouldn't do stuff like this.

[Cal Cetín]

"Not until ALL of Ireland is free!"

#BringBackTheTroubles

[Cal Cetín]

Hmm...trying to respond to the bit about Irish independence, oh, well.

[Hank Ferrous]

Intellectual dishonesty doesn't a good argument make. They didn't try to overthrow anything, they allegedly discussed it and discarded the idea. They didn't try to kidnap Whitmer, they allegedly planned it. As the method of acquiring the weapons has not been revealed, your comment shows no more than your bias. These knuckleheads committed crimes by conspiring, not acting. This doesn't change the fact that the Michigan Supreme Court has found Whitmer's actions in perpetuating the lockdown to be unlawful. We could focus on civil liberties, rather than this you try to smear your sociopolitical opponents in a quick 'gotcha,' pathetic, and hardly surprising.

[rsteinmetz]

I surprised no one mentioned the Irish struggle for independence, which they eventually won.

[Cal Cetín]

“Not until ALL of Ireland is free!”

#BringBackTheTroubles

[Sebastian Cremmington]

I was surprised to see how high the Irish per capita GDP is...I somehow missed their rise to the top.

[QuantumBoxCat]

"There are obvious reasons why the government would take guns away from those bent on overthrowing it, and, as I discuss later, stripping rebels of their gun rights followed well-established practice in both England and the colonies (36)."

- Judge Amy Coney Barrett
Kanter v. Barr (2019)

Uh oh.....

[Sebastian Cremmington]

I heard the Pope isn’t a big fan of guns...he also supports universal health care and climate change action.

[Cal Cetín]

And, it turns out, he's one of many powerful prelates who cover up sex abuse.

[Hank Ferrous]

That's not an endorsement of the position from her, it's an observation.

[J.R.]

Is anyone else watching the seminar or following along?

[Dan Schiavetta]

The FBI (headed by a Trump appointee) believes that right wing terrorism is a major threat.

A few months ago an armed crowd walked into the Michigan State House to protest Whitmer’s COVID precautions. Why do you think they brought guns? They certainly didn’t have to.