News Interpreting the 2nd Amendment: Literalism and Intent in Gun Laws

[vertices]

I agree with this completely except for one major problem: Both the government and criminals would still have guns. If NOBODY had guns, then having guns makes less sense. If guns are illegal, only the bad guys have guns. In other words, outlawing guns doesn't make them go away. It does make the people who have guns a lot more powerful.

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

 

[vertices]

You raise concern about the dangers of guns to US citizens. Wouldn't homicide rate be the statistic of concern here? We have a higher "firearm related" death rate (a significant portion of which is suicide) because we have more guns. But the homicide rate is not so much higher than in Europe. If there are fewer guns and less concern of being murdered in Europe than you would imagine in America and the homicide rate is very close then from where do you derive the conclusion that there is a greater concern for citizen welfare in the US due to guns? Apparently people are murdered just as readily in other parts of the world regardless of gun statistics.

The issues surrounding suicide are complex and multilayered but it is safe to assume that poorer countries are more likely to have a higher suicide rate (for the simple reason that you are more likely to commit suicide if you are poor).

The US shouldn't be compare itself with the likes of Belize in matters such as these. If you look at that list, you will find that the US has the highest suicide rate of the 1st world countries (with the exception of Turkey).

The executive has no influence over the Judicial branch excepting that (s)he is president and is more likely to have their ear than the average person. Lobbbyists (and you and I and our grandmothers too) are capable of submitting amicus briefs to the court and that is about the only influence that they can possibly have on the court.

Well, there was a reason why I put quotation marks around 'influence' - the nra has form when it comes to bribing politicians (google seach 'nra bribe politicians') and click on the 2nd link - interesting video.

 

[Proton Soup]

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

well, a couple of things. it is socially-acceptable, even normal, for people to have guns.

second, i don't need a gun to go around and kill random strangers instantly. and neither does anyone else, including people in other cultures. i believe it has already been mentioned that when people don't have guns, they improvise, and the murders still happen.

i would agree that availability of illegal drugs is not a good argument. it's not as if not having heroin puts me at a significant disadvantage to a person that does have access to heroin.

 

[Office_Shredder]

The US shouldn't be compare itself with the likes of Belize in matters such as these. If you look at that list, you will find that the US has the highest suicide rate of the 1st world countries (with the exception of Turkey).

Did you look at the wikipedia link that I posted on this earlier? Countries with higher suicide rates include:

http://en.wikipedia.org/wiki/List_of_countries_by_suicide_rate

Japan
South Korea
Finland
Switzerland
France
Austria
New Zealand
Sweden
Czech Republic
Norway
Portugal
Canada
Iceland

Seriously, do you have any facts to back up your opinions or do you just make them up?

EDIT TO ADD: It is instructive to note that according to wikipedia Belize has a lower suicide rate than the United Kingdom

 

[lisab]

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

To the bolded comment: well we *do* have laws and a working legal system. And I assure you, murder is not socially acceptable, despite the fact that we're well armed.

You seem to believe that if only Americans could see things your way, could come see how your lifestyle is, we'd be so much better off! And of course reasonably well traveled people would clearly agree with you, and if only we would see the light we'd realize our way of life causes damage to society. Can you see how that comes off as arrogant?

I have been to Europe, was in England for a summer in fact. Plus my step-father is British so I've had plenty of exposure to a non-American point of view. Do I want my culture to change because of that experience? No, I don't.

 

[mheslep]

You seem to believe that if only Americans could see things your way, could come see how your lifestyle is, we'd be so much better off! And of course reasonably well traveled people would clearly agree with you, and if only we would see the light we'd realize our way of life causes damage to society. Can you see how that comes off as arrogant?

Actually when King George or his court made statements fitting that description it qualified as arrogant. Today when I see that same kind of "you're obviously a cowboy and not rationale if you fail to think like me" rambling from the UK I see it as sadly insecure. <- How's that for condescension!

 

[Cyrus]

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

Perhaps you should expose yourself to other cultures, particularly American culture. Not stuff you see on tv.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

Clearly, you don't - otherwise you would not have said "any rational government..." Our constitution has a very real, clear, and rational reason for the 2nd amendment. You're just selectively ignoring it.

 

[Cyrus]

The issues surrounding suicide are complex and multilayered but it is safe to assume that poorer countries are more likely to have a higher suicide rate (for the simple reason that you are more likely to commit suicide if you are poor).

Do you have anything to back this claim?

The US shouldn't be compare itself with the likes of Belize in matters such as these. If you look at that list, you will find that the US has the highest suicide rate of the 1st world countries (with the exception of Turkey).

Even if that were true, so what? Does the 2nd amendment say anything about suicide rates in regards to the right to bear arms?

Well, there was a reason why I put quotation marks around 'influence' - the nra has form when it comes to bribing politicians (google seach 'nra bribe politicians') and click on the 2nd link - interesting video.

That's a nice misleading title.

 

[Proton Soup]

Even if that were true, so what? Does the 2nd amendment say anything about suicide rates in regards to the right to bare arms?

when wifebeaters are outlawed, only outlaws will wear wifebeaters.

 

[Cyrus]

when wifebeaters are outlawed, only outlaws will wear wifebeaters.

Only regulated, like chuck norris.

 

[vertices]

Did you look at the wikipedia link that I posted on this earlier? Countries with higher suicide rates include:
...

Seriously, do you have any facts to back up your opinions or do you just make them up?

EDIT TO ADD: It is instructive to note that according to wikipedia Belize has a lower suicide rate than the United Kingdom

yes you are most certainly right. I was clearly looking at the wrong table - apologies for this.

I will try and look for further studies over the next few days...

 

[vertices]

And I assure you, murder is not socially acceptable, despite the fact that we're well armed.

I wasn't saying that Americans think it is.

You seem to believe that if only Americans could see things your way, could come see how your lifestyle is, we'd be so much better off! And of course reasonably well traveled people would clearly agree with you, and if only we would see the light we'd realize our way of life causes damage to society. Can you see how that comes off as arrogant?

I have been to Europe, was in England for a summer in fact. Plus my step-father is British so I've had plenty of exposure to a non-American point of view. Do I want my culture to
change because of that experience? No, I don't

yes, I do realize that does come across as arrogant - poor choice of words.

I'm not saying you should change your culture (its not my place to say that and I have no interest in doing so), but I do strongly believe in the universality of human nature - if I had children, I would never want them to grow up thinking they need guns to feel physically and emotionally secure (I do think it'd be a bit twisted to instil this in them) because that would contribute to an already misanthropic culture, in which people do not trust each other and expect bad things to happen to them.

 

[vertices]

Clearly, you don't - otherwise you would not have said "any rational government..." Our constitution has a very real, clear, and rational reason for the 2nd amendment. You're just selectively ignoring it.

Yes, I can understand the need for an armed citizenry to overthrow any tyranny, should they seize control of the democratic institutions.

But there is plenty of evidence that democracy can also be restored/won through non-violent means: examples off the top of my head include Gandi's India, Apartheid South Africa, and Martin Luther King's pre-civil rights America...

 

[lisab]

I wasn't saying that Americans think it is.



yes, I do realize that does come across as arrogant - poor choice of words.

I'm not saying you should change your culture (its not my place to say that and I have no interest in doing so), but I do strongly believe in the universality of human nature - if I had children, I would never want them to grow up thinking they need guns to feel physically and emotionally secure (I do think it'd be a bit twisted to instil this in them) because that would contribute to an already misanthropic culture, in which people do not trust each other and expect bad things to happen to them.

I'm not a gun owner, I see no reason to own a gun. I don't see personal safety as a big factor in my life...in other words, it's not something I think about. Right now my front door is unlocked, and I'm home alone.

But I do think there is a segment of our population that is overly paranoid, and they *believe* they need a gun for protection. Is their paranoia caused by the fact that there are a lot of guns in the country? I really don't know, it probably doesn't help. I think that kind of paranoia is uncommon, though.

 

[russ_watters]

In my layman opinion, the arguments last year (or the year before - context: DC gun law) that the second clause in the 2nd Amendment is not predicated upon the first, is at least grammatical overreach.

Really long thread, really fast, but just my $.02:

I consider the 2nd amendment poorly worded, with a similar but much worse flaw of verbosity than the 1st amendment. In addition, the technology of weapons and warfare has changed vastly in the 200+ years since it was written, which requires clarification (I'd like to buy an M-1 tank...), so IMO, it requires amendment to clarify and update it.

But it is considered by many to be so sacred, that any attempt to touch it, no matter the particulars of the law or amendment, is avoided. As a result, we get laws written to challenge it and justices who have to draw too much on personal opinion to properly review such laws.

 

[Cyrus]

Yes, I can understand the need for an armed citizenry to overthrow any tyranny, should they seize control of the democratic institutions.

But there is plenty of evidence that democracy can also be restored/won through non-violent means: examples off the top of my head include Gandi's India, Apartheid South Africa, and Martin Luther King's pre-civil rights America...

Irrelevant. Your last example is just wrong, Dr. King did not overthrow the government, so it's a poor example.

 

[Cyrus]

I'm not saying you should change your culture (its not my place to say that and I have no interest in doing so), but I do strongly believe in the universality of human nature

Okay...?? (Not sure what this feel good statement is supposed to mean)

- if I had children, I would never want them to grow up thinking they need guns to feel physically and emotionally secure (I do think it'd be a bit twisted to instil this in them) because that would contribute to an already misanthropic culture, in which people do not trust each other and expect bad things to happen to them.

Okay...?? (No one said they need a gun to feel emotionally secure, other than you.) And I think its worse to have blatant ignorance and fear of guns.

 

[Cyrus]

I'm not a gun owner, I see no reason to own a gun. I don't see personal safety as a big factor in my life...in other words, it's not something I think about. Right now my front door is unlocked, and I'm home alone.

But I do think there is a segment of our population that is overly paranoid, and they *believe* they need a gun for protection. Is their paranoia caused by the fact that there are a lot of guns in the country? I really don't know, it probably doesn't help. I think that kind of paranoia is uncommon, though.

I have my weapons specifically for what the founders intended. Plus having them is great to piss off liberal hippies. All one has to do is try buying a gun to realize some of the asinine state regulations that exist.

 

[BobG]

Just out of curiosity, why were the founding fathers so scared that the government might try to take their rifles and muskets?

Granted, for many of that time, losing their gun meant more than losing a means of self defense. It also meant they couldn't hunt.

Still, I don't know of any attempt to limit the colonists' private ownership of guns. The only guns the British were concerned about were the cannon owned by local militias and then only towards the beginning of the Revolutionary War, when the British began to realize they had a problem. They placed an embargo against powder, which would affect both cannon and privately owned guns, but the only actual guns they tried to confiscate were the cannon.

 

[turbo]

I'm not a gun owner, I see no reason to own a gun. I don't see personal safety as a big factor in my life...in other words, it's not something I think about. Right now my front door is unlocked, and I'm home alone.

I have quite a few guns. I have sold many, many guns over the years, and I like to buy quality pieces when they come up. I like target shooting, plinking, and hunting, too, so I stay in practice with little effort.

I have two loaded semi-automatic pistols cached in the house - hidden from visitors, but within easy reach if my wife or I need them. There is a practical reason for this. The most common crime around here is B+E, and people looking for money for drugs, or to raid your home looking for prescription drugs are not the sharpest tools in the shed. They make really stupid misjudgments and take risks, which places their victims and themselves at risk. Our little town has no police department, and the nearest Sheriff office and State Trooper barracks are a good 20 minutes away from here assuming optimum response. I'm not going to call 911 and sit around hoping the cops arrive in time, or that a dangerous situation resolves, should one arise.

People assume that quiet rural areas are safe, but that is deceptive. In the next small town to the north (pop ~1200 with through-the-roof unemployment), there have been break-ins, assaults and a fatal shooting in the last year or two involving illicit sales of prescription pain-killers. A couple of days ago in the tiny town of Amity, a father, his 10 year old son, and a visiting friend were all stabbed to death. Again, prescription pain-killers were involved, though details are still sketchy and the perpetrator has not been found. A non-descript older pickup truck was stolen from the scene of the murders, but that is not real helpful since everybody around the area drives pickups and lots of them are old and banged-up. It would never be noticed.

Just yesterday, a young man was sentenced to 2 consecutive 50-year prison terms for the machete attack of a man and his 10 year old daughter two years ago. Both survived, but with severe injuries and ongoing psychological problems. The attack was a follow-up visit after a previous burglary left the perp and his brother facing burglary and theft charges. It seems that they thought that removing witnesses might be a good idea.

 

[turbo]

Just out of curiosity, why were the founding fathers so scared that the government might try to take their rifles and muskets?

They were not scared. They were shrewd. They knew that a diffuse well-armed populace made it very difficult for the better-trained and better-equipped English army to take and hold the colonies once the revolt started. With their armies stationed in the Canadian provinces, they were still a threat to the new US. The War of 1812 proved the founders right.

The 2nd amendment was intended to ensure that the populace would be armed as a home-guard. At a time when news traveled slowly and armies traveled much more slowly, an armed citizenry was a valuable asset. A local militia could mobilize and act before before news of an invasion/assault on remote areas of the country ever reached Federal authorities.

 

[BobG]

You missed the point. Was there even a threat to local gun ownership?

Owning a car is pretty darn imortant nowadays, but I don't see anyone getting riled up about protecting car ownership with a Constitutional amendment. (And, frankly, given the current economy, a person faces a bigger threat of having their car repossessed than of having their guns confiscated.)

The threat the amendment protects you from is some indication of exactly what is meant by the amendment.

 

[Cyrus]

You missed the point. Was there even a threat to local gun ownership?

Owning a car is pretty darn imortant nowadays, but I don't see anyone getting riled up about protecting car ownership with a Constitutional amendment. (And, frankly, given the current economy, a person faces a bigger threat of having their car repossessed than of having their guns confiscated.)

The threat the amendment protects you from is some indication of exactly what is meant by the amendment.

I could argue the same thing about horses or slaves, back in their day. But there is no provisions made for those things from an economic basis.

 

[BobG]

I could argue the same thing about horses or slaves, back in their day. But there is no provisions made for those things from an economic basis.

Argue what? That there weren't any provisions for those things because there wasn't a threat?

That's my point. There was no threat to private ownership of guns. It would have been as unthinkable to ban or confiscate private guns as it would be to ban or confiscate everyone's horses.

There was a threat to the cannon of local militia as soon the British began to worry about rebellion.

 

[turbo]

You missed the point. Was there even a threat to local gun ownership?

Owning a car is pretty darn imortant nowadays, but I don't see anyone getting riled up about protecting car ownership with a Constitutional amendment. (And, frankly, given the current economy, a person faces a bigger threat of having their car repossessed than of having their guns confiscated.)

The threat the amendment protects you from is some indication of exactly what is meant by the amendment.

Was there a current threat? Probably not from the founders or from the politicians that followed them soon after. My feeling was that they wanted to codify the right to bear arms to make sure that there wouldn't be a future threat. A representative democracy is a shaky thing with very slow travel of information, goods, armies, etc, and there were probably some pretty interesting conversations leading to the bill of rights. Brainstorming ideas like "how did we manage to defeat the most powerful military force in the world?" might have been right at the top of the list. Next would be "how do we maintain an ability to do the same if attacked?"

As I explained earlier, militia-training and forced militia-service for the colonists proved to be England's undoing. I have researched some soldiers from the colonial/Rev War eras quite extensively, and the militia-men were no slouches. One such was Lt. John Bridge. He fought in campaigns to take forts from the French in Nova Scotia and in the Hudson Valley, despite the fact that he lived in Massachusetts. The NS campaign was undertaken with the leadership and militia-men of what is now Maine (a part of Mass back then, to our eternal shame). So when the regular army units of the crown hit our shores, their idea of standing in ranks in open areas and firing volleys at one another didn't work too well. Many of the militia-men were used to rough-and-tumble fighting, using cover strategically, etc, and could think on their feet. That was a valuable military advantage and it is likely that our founding fathers realized why, and codified the right to bear arms in order to preserve it for the future.

Edit: When the militia were sent into battle in the French and Indian Wars, they were not facing foes that stood in ranks and fired volleys at one another's troops. That was an outmoded continental mode of warfare that was particularly unsuited for rough terrain, wooded battle-sites, etc. The colonial militia learned flexibility and exploitation of terrain that no amount of marching and drilling (English-style) could ever entrain in soldiers.

 

[Al68]

The federal registration requirement only applies to certain types of weapons, like fully automatic weapons and sawed-off shotguns. There is no such requirement for most guns.

This is only true of private-purchase weapons that can fly under the radar.

If you buy a modern (post 1898) gun of any kind from a dealer, the purchase is registered in his FFL records, and he has to conduct an FBI background check on you before transferring the weapon. The serial number of the weapon and the reference number of the background check result are recorded on his paperwork, as well as the buyers name, address, and signature, as well as the type of ID produced to confirm identity. Those stay in his files.

Yes, that's all true. But by "no such requirement", I meant a requirement that a gun be registered in the name of the current owner. The purchase records you refer to are only required for dealers, not for individuals possessing, owning, or transferring a gun.

There is no federal requirement that a non-NFA weapon be registered in the name of the current owner, or that any non-FFL holder keep any record of any transfer of ownership.

 

[BobG]

Brainstorming ideas like "how did we manage to defeat the most powerful military force in the world?" might have been right at the top of the list. Next would be "how do we maintain an ability to do the same if attacked?"

Considering that most of the founding fathers were familiar with world events, the first question shouldn't have been too hard to answer. The British were conducting wars all over the world and they weren't able to focus their military might solely on the US. (In fact, the British depended on quite a few colonial militia still loyal to the king to fill out their ranks.)

They answered the second question by disbanding the entire federal army and leaving themselves vulnerable if some other world power managed to ship all of their military might across the Atlantic.

The states still believed the best defense of their state's independence was their state militias rather than an army under the command of a federal government.

But was there even a threat before the revolution from the British government or colonial loyalists to private gun ownership?

 

[turbo]

Yes, that's all true. But by "no such requirement", I meant a requirement that a gun be registered in the name of the current owner. The purchase records you refer to are only required for dealers, not for individuals possessing, owning, or transferring a gun.

There is no federal requirement that a non-NFA weapon be registered in the name of the current owner, or that any non-FFL holder keep any record of any transfer of ownership.

I had hoped that I covered all that sufficiently. I sold almost all of my collection of Winchester rifles and carbines privately (over time and in increments that would keep me out of the definition of "dealer" with the Feds) and have bought all of my pistols, rifles, and shotgun privately, with the exception of a sweet Ruger Model 1 single-shot in .45-70 that a shop-keeper friend of mine offered me at a steal. Except for that one carbine, all my guns are off-paper. Not because I don't want guns registered in my name, but because I have an extensive network of private contacts, and sometimes people want to sell a gun or two to raise cash.

I traded a Winchester M 94 .38-55 rifle with a short magazine for a brand-new Glock Model 20 in 10mm Auto in a factory case with a loading tool, 3 magazines, and original papers. I paid about $300 for the Winchester a few years back. I done good. Here, jobs are scarce, and they don't usually pay too well, so if you have feelers out, you can get good private deals when somebody's well pump gives out, people get divorced, they need a new vehicle or expensive repairs on their current one. Keep a pocketful of cash handy and keep out the word that you are interested and deals turn up.

There is a constant drum-beat about how private sales at gun-shows are fueling the flow of unregistered guns to criminals. The truth is that most of the "private" collectors here in Maine have severely over-priced everything that they own and they rarely sell much volume at gun shows. The guys carrying the modern, concealable stuff of interest to criminals are FFL holders, not private collectors. Nobody collects cheap semi-auto handguns.

 

[Al68]

The primary requirements are on manufacturers which have been decided to fall under the commerce clause. If you procure such a firearm as requires registering it will already be registered by the manufacturer. If you are in possession of an unregistered weapon of the sort outlined in the NFA then it is not a big leap to assume that it must be a black market item actionable under the commerce clause.

That's still circular logic, since there would exist no black market were it not for the law in question. It's like justifying a ban on eggs because if there were a ban on eggs, any eggs would then be black market items.

Even then, the item would have to be involved in commerce across state lines to be covered by the interstate commerce clause.

But the NFA is ostensibly a (hefty) tax imposition, authorized by the power to levy taxes, which is why it is enforced by the Treasury Department (BATF). But the actual requirement imposed is possession of the required NFA tax stamp, other evidence that the tax was paid isn't good enough. And they only issue the tax stamp after registration and background check (couple months). And the stamp is non-transferable.

So the law is ostensible justified by the taxing authority, but the law requires possession of a tax stamp which cannot be obtained by merely paying a tax.

 

[Al68]

I had hoped that I covered all that sufficiently.

Yeah, I'm not disagreeing with you on this issue. The context of my post was whether it was a crime to be in possession of a gun that's not registered to you.

I also don't worry about whether or not my guns are "off-paper", since as a practical matter, unlike universal registration, that can't be used for any ill purpose, anyway. As you know, dealer records only show who bought the gun from the dealer, not necessarily who currently legally owns it. So those records don't provide any way to establish that a particular person currently owns a particular gun.