T Nation

Right to Arms in the 21st Century


#21

[quote]thunderbolt23 wrote:

(And ignore any modern precedents that might impact the analysis. In this thread were all operating under a theory that the Second Amendment is about protecting the right to resist government tyranny by arms, not private self-defense or hunting or anything like that.)[/quote]

By theory do you mean actual intended purpose?


#22

If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist. â?? Federalist Paper No. 29

According to Hamilton the answer to the question of citizen arms is little, if at all, inferior to them (the standing military) in discipline and the use of arms.


#23

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#24

[quote]thunderbolt23 wrote:

[quote]usmccds423 wrote:

[quote]thunderbolt23 wrote:

[quote]usmccds423 wrote:
Every single arm they can procure. Every one of them. If they can find the uranium, figure out fission or fusion or whatever, build a missile system, etc… then they can have a nuclear weapon.

That’s how the second reads to me. [/quote]

I appreciate your candor. Sounds like you are unabashed about the “keep” aspect of the amendment.

Does the Second Amendment disallow any restrictions on the “bearing” of weapons, such as a prohibition on carrying a grenade launcher on public streets?

Can you “bear” just as freely as you can “keep”?
[/quote]

I would say no because walking down the street, in general, brandishing a grenade launcher is, again generally, not in keeping with the phrase “necessary to the security of a free state”. [/quote]

I understand your position, but that has more to do with what the individual chooses* to do - does the Second Amendment allow any restrictions on the “bearing” of a grenade launcher on a public street (under pain of criminal or civil penalty) out of a fear that someone would carry it in the street to do harm with it (i.e., outside of using it to defend the state, and instead to, say, blow up the house inhabited by a rival gang)?

EDIT: *, fixed typo.[/quote]

Well, if you put it that way, then no there is no limitation imo. I don’t know how to interpret “shall not be infringed” any other way than zero laws that dimish an individual ability secure a free state theough keeping and bearing of arms.

I don’t believe the founders were concerned about rival gangs blowing each other up, but governmental tyranny.


#25

[quote]smh_23 wrote:

[quote]pushharder wrote:

[quote]usmccds423 wrote:
Every single arm they can procure. Every one of them. If they can find the uranium, figure out fission or fusion or whatever, build a missile system, etc… then they can have a nuclear weapon.

That’s how the second reads to me. [/quote]

You are correct. That’s why I wrote this in the other thread:

“To be perfectly honest, a repealing or amending of the 2nd Amendment is what it’s going to take for you, the smh’s of this world, and other intelligent thinkers to accomplish what it is you so greatly desire.”

George Will said the same thing many years ago.

Gun control advocates are going to have to face the music. A repeal or an amendment to the Amendment is the only intellectually and constitutionally honest way to for gun control folks to accomplish their goals. The alternative is further unconstitutional twisting of the 2nd.

“Shall not be infringed” means what it says. “But what if…backpack nuclear weapons” meanderings cannot change “shall not be infringed.”

So Congress or the states should begin the amendment process and state in whatever terms, “The Second Amendment to the Constitution is hereby amended to the effect that private citizens can be restricted from owning nuclear weapons, fighters and bombers, Surface to Air missiles…and rifle, handgun and shotgun magazine capacities that exceed 10 rounds, etc.”[/quote]

No, this is absurd and ahistorical. The Constitution doesn’t explicitly specify whether or not all conceivable arms are protected under all conceivable circumstances. If the absence of these qualifiers forces a default adoption of absolutism – and that’s exactly what’s being argued with the mechanistic textualist quotation of the line “shall not be infringed” – then:

– If a court tries to stop the brother of a guy about to be sentenced – probably to the death penalty – from bringing a loaded 12-gauge and a potato sack full of pipe-bombs into the courtroom, he can gain uninhibited entry by simple saying, “shall not be infringed.” After all, just as the Constitution doesn’t specify that there are certain arms open to infringement, it does not read “shall not be infringed – except in certain places and by certain authorities.” Our default to ahistorical absolutism requires the federal government to…wait for it…not infringe ever, anywhere. [/quote]

This example had nothing to do with the intent of the second amendment. The brother’s actions are not necessary to the security of a free state. I will just keeping saying it, that phrase is equally as important as the others even though it is often overlooked.

Ya, there should be no law prohibiting any speech what so ever. That doesn’t mean there shouldn’t be consequence if you yell “fire” maliciously and someone dies.

[quote]
– If I sit in court, during my own trial, and continuously/unendingly recite, out loud, a repeating loop of the lyrics to “Niggas in Paris,” I can’t be held in contempt of court, and nobody can do jack shit about it. After all, the Bill of Rights protects against "abridg[ment] [of] freedom of speech. It doesn’t say some speech, and it doesn’t say except in such and such cases – it says no punishing citizens for speaking. I spoke, and I can’t be punished. [/quote]

Not sure about this one.

[quote]
– If I stand up in class at my public university, during an exam, and begin reading the answers aloud…nobody can do a goddamn thing about it or sanction me in any way. After all, the Bill of Rights protects against "abridg[ment] [of] freedom of speech. It doesn’t say some speech, and it doesn’t say except in such and such cases – it says no punishing citizens for speaking. I spoke, and I can’t be punished. [/quote]

Again, no law should exist prohibiting you from being a jackass, but the university can expel you for cheating and make the other students retest. That doesn’t infringe on the first, that simply creates consequences for some unwanted action or outcome.

[quote]
If your understanding of American law leads you to irrational absurdity, your understanding of American law is wrong. It’s as simple as that.[/quote]

I believe you are the one that has it wrong on this smh. Words matter. This forum constantly points that out. The phrase “shall not be infringed” couldn’t be any more clear. It should be unconstitutional for the government to make any law diminishing an individuals right to keep and bear arms necessary to the security of a free state . That doesn’t mean there shouldn’t be consequences for shooting up a school or trying to blow up Congress. Intent matters and the only intent covered by the 2nd is one in line with what would be necessary to the security of a free state .

Edit: spelling


#26

[quote]Sloth wrote:

[quote]thunderbolt23 wrote:
For those that subscribe to the theory that the Second Amendment codifies the right of citizens to keep and bear arms to protect themselves from a tyrannical government, what arms are citizens entitled to as a matter of right?

All of them?
[/quote]

Yes, all of them. And that’s why it needs to be amended rather than being squinted at just right, with ones head cocked just so, while reading it from behind through a reflection in a mirror.

No, we shouldn’t be able to own personal nuclear weapons and doomsday viruses. But let’s do it right instead of pretending the text doesn’t say what it says. [/quote]

I don’t have a problem with this on its face, but are you including states too? States can’t restrict any arms? Or states can but the federal government cannot?


#27

[quote]Alrightmiami19c wrote:

[quote]thunderbolt23 wrote:

(And ignore any modern precedents that might impact the analysis. In this thread were all operating under a theory that the Second Amendment is about protecting the right to resist government tyranny by arms, not private self-defense or hunting or anything like that.)[/quote]

By theory do you mean actual intended purpose?[/quote]

No, theory. There’s more than one. Including ones adhered to by some of the most conservative jurists who’ve ever written on the subject.


#28

[quote]usmccds423 wrote:
The brother’s actions are not necessary to the security of a free state. I will just keeping saying it, that phrase is equally as important as the others even though it is often overlooked.
[/quote]

No, it isn’t. The prefatory material has been, by the court’s conservatives, divorced from the operative material. You can’t claim a textualist reading, as you’ve done, and then find some implied-by-association limitation on the unqualified textual meaning of the operative clause: right - keep - bear - arms - not - infringed.

Or the divorce is illegitimate, and this conversation can end immediately: the enumerated right hinges explicitly on a well-regulated militia. It is not an individual right.

If you believe the last sentence to be false, then you can take another look at my examples without referring to anything other than the operative clause.


#29

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#30

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#31

[quote]pushharder wrote:
Here it is in a nutshell, smh: we don’t know where the limits are. Scalia has said as much. If he doesn’t know you don’t know. If he doesn’t know I don’t know.[/quote]

Unless we discover some lost letter in which James Madison writes, “In the event that there is someday developed a weapon capable of flattening and irradiating an entire city, the Second Amendment should…” – an unlikely scenario, I think you’ll agree – there is nothing to “know.” It is for us to weigh letter, spirit, and intent against technological, social, and historical change – and to act reasonably. This has always been the manner of operation of Constitutional law, and we know that it’s something we all intuit because, for example, none of us sees a violation of a Constitutional right in the sanction of a person who, with malice aforethought, shouts “fire” in a crowded theater. You haven’t answered that point because there is nothing to answer: such sanctions do not violate the First Amendment under any reasonable person’s interpretation of the First Amendment, its cause, its aim, and its spirit.

The same goes for nuclear weapons vis-a-vis the Second Amendment, and for the infringement of the right to keep and bear arms in, say, courtrooms. I know that these kinds of things weren’t intended because I know that the Founders weren’t ludicrous idiots.

[quote]
Here’s the article by George Will I referred to that I read a long, long time ago, probably around the date of your birth: http://articles.baltimoresun.com/1991-03-21/news/1991080067_1_militia-gun-ownership-gun-control

Read it. He’s right.

Don’t miss the last sentence. It’s been 24 years since I read this and I’ve never forgotten it: “Gun control advocates who want to square their policy preferences with the Constitution should squarely face the need to deconstitutionalize the subject by repealing the embarrassing amendment.”

It’s been 24 years since I read this and I’ve never forgotten it.

I’ve been passionate and have educated myself about this subject over the course of your entire lifetime and longer. If you catch up with me someday you’ll see the light too.[/quote]

Now, I agree – we need to reconsider the Second Amendment. The quotation above – the one about the government and people having something close to military parity – simply doesn’t apply in the real world circa 2015. We can remedy this by decimating the military or by encouraging individuals to command all manner of heavy artillery and nuclear material (no two groups, ever, ever, can be said to be within a million miles of military parity when one has nuclear weapons and the other doesn’t).

Neither of these is going to happen, and neither is a good idea. So we should reconsider the text and codify two rights: one to personal self defense with small arms, and one to a well-regulated militia with heavy weaponry.

But even if we don’t, all of the above stands. There is no right to a loaded gun in a courtroom in the Second Amendment. There is no right to a backpack nuke.


#32

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#33

[quote]thunderbolt23 wrote:

[quote]Alrightmiami19c wrote:

[quote]thunderbolt23 wrote:

(And ignore any modern precedents that might impact the analysis. In this thread were all operating under a theory that the Second Amendment is about protecting the right to resist government tyranny by arms, not private self-defense or hunting or anything like that.)[/quote]

By theory do you mean actual intended purpose?[/quote]

No, theory. There’s more than one. Including ones adhered to by some of the most conservative jurists who’ve ever written on the subject.[/quote]

No, the framers of the Constitution made it clear. James Madison basically said in The Federalist Papers, “Here is what this shit means.” The theories came later by those wishing to distort that clarity.


#34

[quote]usmccds423 wrote:

Ya, there should be no law prohibiting any speech what so ever. That doesn’t mean there shouldn’t be consequence if you yell “fire” maliciously and someone dies.
[/quote]

Also, as an aside, the 1A is fundamentally about sanction of speech. “Consequence if you” is exactly – exactly – what it prohibits. If you think there should be consequence, then you admit outright that the unqualified right enumerated in the First is open to reasonable restriction, and this vitiates your view of the Second.


#35

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#36

[quote]pushharder wrote:

[quote]smh_23 wrote:

…for example, none of us sees a violation of a Constitutional right in the sanction of a person who, with malice aforethought, shouts “fire” in a crowded theater. You haven’t answered that point because there is nothing to answer: such sanctions do not violate the First Amendment under any reasonable person’s interpretation of the First Amendment, its cause, its aim, and its spirit.

[/quote]

I’ve addressed this ad nauseum and I know you’ve read my posts regarding it. Do I have to do it again? Really?
[/quote]

To my knowledge I have never once seen you address this or argue anything material about it. Give me the two sentence summary and it will ring a bell.


#37

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#38

[quote]pushharder wrote:

[quote]smh_23 wrote:

[quote]pushharder wrote:

[quote]smh_23 wrote:

…for example, none of us sees a violation of a Constitutional right in the sanction of a person who, with malice aforethought, shouts “fire” in a crowded theater. You haven’t answered that point because there is nothing to answer: such sanctions do not violate the First Amendment under any reasonable person’s interpretation of the First Amendment, its cause, its aim, and its spirit.

[/quote]

I’ve addressed this ad nauseum and I know you’ve read my posts regarding it. Do I have to do it again? Really?
[/quote]

To my knowledge I have never once seen you address this or argue anything material about it. Give me the two sentence summary and it will ring a bell.[/quote]

OK, I’m going to do this for you and you alone. Bookmark this page.

Passing laws that prohibit and penalize shouting “Fire!” in a crowded theater where there is no fire is not – and I repeat Is Not – akin to passing a law requiring you to register your gun or pay a special tax to own a particular weapon.

Passing laws that prohibit and penalize shouting “Fire!” in a crowded theater where there is no fire IS akin to passing laws prohibiting the use of a firearm to facilitate a bank robbery.

Passing laws that restrict the ownership and appropriate bearing of a weapon before a crime has ever been committed is akin to passing laws that require you to prove you are a safe risk not to shout “Fire!” in a crowded theater where there is no fire.

Passing laws that require you to pay a special tax to the Treasury Dept in order to obtain a “very effective weapon for mass shootings” is akin to passing laws that require you to pay a special tax to the Treasury Dept in order to buy a computer and hook up to the internet because the combination is a very effective tool for mass speech. (Right now I am reaching potentially thousands of people with my words. I could commit all kinds of speech transgressions from threatening the life of the president to committing fraud or libel or slander. Shouldn’t I have to get a permit FIRST before I engage in this “free speech?” After all, it could be a public safety issue, right?)

The facts of the matter are we punish speech transgressions when they have been committed; we should punish arms transgressions likewise. We don’t infringe on speech by requiring BEFOREHAND that the speaker fill out forms, get background checks, wait three days, register our fingerprints, or pay a special tax. We don’t limit the capacity of the speech by disallowing so many words over a certain number. We don’t tell him that he can’t use a particular type tool to do his speaking. We don’t tell him, “Well, the framers of the Constitution could never envision the incredible power of the internet therefore it’s appropriate that the government require you to apply for a permit before you begin speaking on the internet.”

Speech or guns, it’s simple – we place restrictions on their use based on the behavior of the exerciser of those rights. It’s the behavior of the speaker that needs restricting; it’s the behavior of the gun owner that needs restricting. The basic right of either should not be restricted.

We as a society don’t/won’t (so far) tolerate restrictions on our speech rights similar to the ones we have on our gun rights. We don’t make speakers jump through the same type hoops we do gun owners.

Savvy?[/quote]

No, you have this exactly wrong.

The First Amendment prohibits, without qualification, government sanction of speech. It – and this is crystal clear vis-a-vis spirit and intent – prohibits the punishment, at the hands of the state, of a speaker for what he has spoken. The punishment by a court of a person who shouts “fire” in a crowded room is exactly that – the punishment of a speaker for what he has spoken. This is precisely the thing proscribed under an absolutist textual reading of the First Amendment, and the relevant SCOTUS rulings make this explicitly clear. This is why you get sentences like this one, from Cornell’s Legal Information Institute:

[quote]
The Supreme Court has also recognized that the government may prohibit some speech …For more on unprotected and less protected categories of speech see…[/quote]

Which is to say that if a speaker can in fact be punished for shouting “fire” in a crowded room, the unqualified-by-omission right to free speech enumerated in the First Amendment is not actually unqualified. It is open to reasonable restriction. There are circumstances under which the freedom of speech may be abridged, and there are kinds of speech the speaker of which may be sanctioned, jailed, etc.

Now, the Second Amendment. The Second Amendment has nothing to do with criminal rights vis-a-vis guns. We don’t need an exception to the Second Amendment to convict and imprison a guy who shoots his wife and her lover in the backs of their heads – the Second Amendment isn’t involved. The Second Amendment instead protects, without qualification, the keeping and bearing of arms. Are you seeing the correspondence now? The “advocacy of illegal action” exception is a direct and explicit qualification of a First Amendment right; a regime of strict regulation on automatic weapons is the very same – a direct and explicit qualification of a Second Amendment right. So too with a flat prohibition of privately-owned MANPADS and grenade launchers, etc. etc.

The Amendments protect against sanction of speech and infringement of the keeping/bearing of arms, respectively. If there are circumstances under which sanction of speech is in fact permitted, and a right enumerated unqualifiedly by the Bill of rights is not ipso facto shielded from any and all qualifications under any and all circumstances, then ________. You can fill that last bit in yourself.


#39

Law against “fire” in a crowded theater is a law proscribing the free exercise of some speech, some circumstances. Carry that out and you will see that even you don’t believe unqualified BOR protections are ipso facto protected from restriction.


#40

[quote]usmccds423 wrote:
Every single arm they can procure. Every one of them. If they can find the uranium, figure out fission or fusion or whatever, build a missile system, etc… then they can have a nuclear weapon.

That’s how the second reads to me. [/quote]

The state is by definition an organized human community that has successfully claimed a monopoly on the legitimate use of force. Law and order depend upon this. You are staunchly opposed to the Iran nuclear deal but don’t bat an eye at the prospect of private nuclear forces? To what end? Do you understand the calamitous international outcomes such a laissaz faire attitude toward nuclear proliferation would inspire?