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

[Cyrus]

Its amazing how utterly and completely PATHETIC and STUPID these anti-gun loones are. They don't know the first damn thing about guns, but they want to regulate them. Why don't they do something else with their worthless time.

 

[drankin]

Its amazing how utterly and completely PATHETIC and STUPID these anti-gun loones are. They don't know the first damn thing about guns, but they want to regulate them.

It actually makes me wonder how stable they are. Not able to trust themselves if they owned a gun. Maybe those that are the most afraid of people owning guns are the ones that should not own guns.

 

[turbo]

The worst part about the superseding of federal law by states and localities is that there is no rhyme nor reason to the patchwork of resultant legislation. You can visit a client and pick up a gun collection, and then violate rule after rule as you cross state and municipal lines while transporting the collection to your place of business. Do guns have to be in locked cases? Can you transport ammunition in the same container as a gun? Do the guns have to be fitted with trigger-locks? Is there a limit on the amount of ammunition that you can transport? Do you need special permits, even though you are a licensed firearms dealer? I am not kidding about this. If you send out a pick-up crew and the truck gets pulled over for a DOT inspection, you had better be prepared to deal with some pretty arcane rules.

 

[drankin]

The worst part about the superseding of federal law by states and localities is that there is no rhyme nor reason to the patchwork of resultant legislation. You can visit a client and pick up a gun collection, and then violate rule after rule as you cross state and municipal lines while transporting the collection to your place of business. Do guns have to be in locked cases? Can you transport ammunition in the same container as a gun? Do the guns have to be fitted with trigger-locks? Is there a limit on the amount of ammunition that you can transport? Do you need special permits, even though you are a licensed firearms dealer? I am not kidding about this. If you send out a pick-up crew and the truck gets pulled over for a DOT inspection, you had better be prepared to deal with some pretty arcane rules.

Unfortunately, this kind of craziness will never completely go away.

 

[Cyrus]

The worst part about the superseding of federal law by states and localities is that there is no rhyme nor reason to the patchwork of resultant legislation. You can visit a client and pick up a gun collection, and then violate rule after rule as you cross state and municipal lines while transporting the collection to your place of business. Do guns have to be in locked cases? Can you transport ammunition in the same container as a gun? Do the guns have to be fitted with trigger-locks? Is there a limit on the amount of ammunition that you can transport? Do you need special permits, even though you are a licensed firearms dealer? I am not kidding about this. If you send out a pick-up crew and the truck gets pulled over for a DOT inspection, you had better be prepared to deal with some pretty arcane rules.

You mean like the fact that I could walk out the shop with my heavy barrel AR-15, but if I wanted a pencil barrel I'd have to wait 7 days (and it would have to be registered)? -Stuuuuuuuuupid.

I took the heavy barrel and walked out.How about the 20 round magazine limits in MD. Don't you worry, I'm going to a gun show in VA and getting a ton of 30 round banana magazines.

 

[turbo]

You mean like the fact that I could walk out the shop with my heavy barrel AR-15, but if I wanted a pencil barrel I'd have to wait 7 days (and it would have to be registered)? -Stuuuuuuuuupid.

I took the heavy barrel and walked out.


How about the 20 round magazine limits in MD. Don't you worry, I'm going to a gun show in VA and getting a ton of 30 round banana magazines.

Now imagine that you have a two-man crew in a box van bringing back a collection or two - comprised of many hundreds of guns, accessories, and ammo. They stop for a routine commercial vehicle check, and Deputy Dawg decides that when he sees the bill of lading, he'd like to tear down the whole load looking for violations of local/state ordinances. When you get that phone call from your drivers, it's like getting a punch to the gut. It's pretty hard to run the Eastern seaboard and avoid NJ, MA, NYC, NY and other locations that have nutty inconsistent gun laws. Pretty much every route back to Maine is fraught with risk. Your drivers can have squeaky-clean records, copies of your FFL, signed contracts, company IDs, etc, and still get treated like suspects.

 

[CAC1001]

She voted against it.

Interesting that during her hearings, Sotomayor had said she believed gun ownership was a fundamental right.

 

[turbo]

Interesting that during her hearings, Sotomayor had said she believed gun ownership was a fundamental right.

The Chicago/Oak Park ordinances specifically banned HANDguns. Might seem like a niggle, but it's not.

I have debated with nut-cases that said the 2nd amendment guarantees the right to bear muzzle-loaders. People who are blissfully unaware that at the time of the amendment, matchlocks and flintlocks had been invented, but percussion muzzle-loaders had not been. The federal government's firearms laws draw a line at 1898 defining "antique" and "modern" though that is a pretty tenuous border. A .30-30 Winchester rifle made in 1894 will kill you just as reliably as a "modern" one, and a much older Colt Single-Action Army pistol from decades earlier is just as deadly as one built yesterday, apart from caliber.

 

[Cyrus]

PIaSczbCt-o[/youtube] And here i...ntrol. His finger is wayyy over that trigger.

 

[Al68]

The notion that states and cities can restrict personal freedoms granted in the Constitution and Bill of Rights is disturbing.

I hate to nitpick on the one issue we seem to agree on, but there are no freedoms "granted" in the constitution. The constitution protects (not grants) pre-existing rights.

But I do agree that the fourteenth amendment must apply to the right to bear arms just as it applies to other constitutionally protected rights.

 

[turbo]

I hate to nitpick on the one issue we seem to agree on, but there are no freedoms "granted" in the constitution. The constitution protects (not grants) pre-existing rights.

We probably agree on more points than you imagine.

 

[Al68]

We probably agree on more points than you imagine.

Probably. I guess it's the nature of political debate that areas of disagreement are under the spotlight while areas of agreement are usually under the rug.

 

[TheStatutoryApe]

I hate to nitpick on the one issue we seem to agree on, but there are no freedoms "granted" in the constitution. The constitution protects (not grants) pre-existing rights.

But I do agree that the fourteenth amendment must apply to the right to bear arms just as it applies to other constitutionally protected rights.

Can you explain how you would interpret the 14th amendment to include the 2nd amendment? The other protections in the Bill of Rights transferred through the 14th amendment were via "Due Process". Is the right to bear arms related to due process?

 

[Al68]

Can you explain how you would interpret the 14th amendment to include the 2nd amendment? The other protections in the Bill of Rights transferred through the 14th amendment were via "Due Process". Is the right to bear arms related to due process?

Absolutely. The law in question deprived people of liberty (their right to bear arms) without due process.

And restricting a citizen's right to bear arms violates the privileges or immunities clause of the 14th amendment.

Interestingly, the primary argument in the Chicago case was based on the privileges and immunities clause, with a "backup" argument based on due process. I think either argument alone would result in a 9-0 decision if we had 9 honest justices.

 

[TheStatutoryApe]

Absolutely. The law in question deprived people of liberty (their right to bear arms) without due process.

And restricting a citizen's right to bear arms violates the privileges or immunities clause of the 14th amendment.

Interestingly, the primary argument in the Chicago case was based on the privileges and immunities clause, with a "backup" argument based on due process. I think either argument alone would result in a 9-0 decision if we had 9 honest justices.

Due process means that you get a "fair trial". I do not see exactly how a handgun ban violates due process.

"Privileges and immunities" is regards to states treating people from other states by differing laws. I can see the possibility of an argument regarding the effect of a law on people traveling through states and being subjected to restrictions on firearms legally obtained in their own state. That would not over turn a ban completely though.*

When I have time I will have to actually read the decision. I have no idea how they would construct the argument for such a decision. From the snippet quoted earlier I assume that they are relying on an argument that persons should be allowed to defend themselves and ought not be charged as criminals for doing so. "Police protection isn't a right..." sort of thing.*Edit: I did a bit of looking and found that the concurring opinion in the case attempts to affirm the broad interpretation of "privileges and immunities". I wonder how that will come out since it is only a concurring opinion. That means quite a lot of change in state law.

 

[BobG]

Due process means that you get a "fair trial". I do not see exactly how a handgun ban violates due process.

You can't take a way a person's rights without due process - with a fair trial being the usual way those rights are taken away.

Theoretically, due process could consist of people voting to rescind one or more of their rights, but that only works if the vote was unanimous. The majority can't band together and vote to rescind the rights of a minority, even if it's affecting everyone equally.

I can't actually think of any other way a person's rights (including the right to bear arms) could be taken away other than a trial (i.e. - you can take away a convicted felon's right to own firearms, vote, etc).

 

[Al68]

Due process means that you get a "fair trial". I do not see exactly how a handgun ban violates due process...

Because there was no fair trial for the majority of Chicago citizens that were deprived of their liberty by the ban. But that argument was the "back-up" argument.

The main argument is the privileges and immunities clause, which has been interpreted as a prohibition on the states depriving citizens of the same rights the federal gov't is prohibited from depriving them of.

I, too, haven't read the entire opinion, I just scanned over it, but the dissenting opinion interests me far more than the majority opinion. My instinct tells me that, as in most cases like this one, the majority opinion will just point out what I consider to be obvious.

I have no idea how they would construct the argument for such a decision.

What if it were newspapers or political pamphlets instead of guns that were banned? I think the argument is essentially identical.

 

[Cyrus]

I'm very curious to see the trends in Chicago crime rates over the next few years after the repeal.

 

[CRGreathouse]

I'm very curious to see the trends in Chicago crime rates over the next few years after the repeal.

Likewise. What cities do you think would serve well as control variables?

 

[Cyrus]

Likewise. What cities do you think would serve well as control variables?

Not sure, but why can't you just compare it to past ban enacted years?

 

[TheStatutoryApe]

Because there was no fair trial for the majority of Chicago citizens that were deprived of their liberty by the ban.

"Deprived of liberty", in the context of "due process", is being imprisoned. Legislation does not put people in prison (that is illegal) and has little to do with "due process". According to previous interpretation the states were allowed to restrict access to guns if they so chose. "If states are allowed to ban guns then people may go to jail for possessing guns which makes it an issue of due process and so states should not be allowed to ban guns" is a terribly circular argument.

So in what manner does a ban on guns effect "due process"? due process being that ability of a person to be treated to a fair trial.

But that argument was the "back-up" argument.

The main argument is the privileges and immunities clause, which has been interpreted as a prohibition on the states depriving citizens of the same rights the federal gov't is prohibited from depriving them of.

"Privileges and immunities" has been 'settled' as not meaning this for over one hundred years. I do not see why then you think the decision here is so obvious.

What if it were newspapers or political pamphlets instead of guns that were banned? I think the argument is essentially identical.

The issue with freedom of speech is that speech is banned based on content. If your freedom of speech is banned based on content then any such trial against you is unfair by definition. You are being put on trial for your ideas where people who act similarly, and with similar effect, but have differing ideas are not arrested at all.

 

[CRGreathouse]

Not sure, but why can't you just compare it to past ban enacted years?

It allows for better control of macroeconomic variability: income changes, crime rate changes, etc. If the general crime rate goes up but that in Chicago is flat, it's a success; if the generate rate goes down but in Chicago it's flat, a failure. Etc.

 

[Cyrus]

It allows for better control of macroeconomic variability: income changes, crime rate changes, etc. If the general crime rate goes up but that in Chicago is flat, it's a success; if the generate rate goes down but in Chicago it's flat, a failure. Etc.

Yeah, true. But do you really think that would change drastically in say, 5 years comparison? Probably not. I predict you will see a sharp (large signal to noise ratio) inline or decline in violence. It will be clear as day - a 30-40% swing very quickly.

The potential pitfall; however, would be if Mayor Donkey tries to enact more laws that makes it harder for people to obtain handguns. Then the rates might stay the same, and Mayor Donkey will say 'see I told you, it didn't change anything, crime is still out of control as usual.'

 

[CRGreathouse]

Yeah, true. But do you really think that would change drastically in say, 5 years comparison? Probably not. I predict you will see a sharp (large signal to noise ratio) inline or decline in violence. It will be clear as day - a 30-40% swing very quickly.

I would not expect such a sharp effect, no. (I'd love to see one, though!) I would also expect extremely high noise.

 

[Al68]

"Deprived of liberty", in the context of "due process", is being imprisoned. Legislation does not put people in prison (that is illegal) and has little to do with "due process". According to previous interpretation the states were allowed to restrict access to guns if they so chose. "If states are allowed to ban guns then people may go to jail for possessing guns which makes it an issue of due process and so states should not be allowed to ban guns" is a terribly circular argument.

That is a circular argument, but that's not the argument I made. I wasn't referring to the people who broke the gun ban law being deprived of liberty, I was referring to those who surrendered to it. My argument (and I think the secondary one presented to SCOTUS) is that depriving people of their right to bear arms constitutes being deprived of liberty. Imprisonment isn't the only way to deprive someone of liberty.

But this argument would only be relevant if the privileges and immunities clause didn't apply. There is no reason to argue that passing and enforcing a law that restricts liberty constitutes "depriving liberty" when the (preceding) privileges or immunities clause already prohibits passing and enforcing such a law in the very same sentence. That's why this is a back-up argument.

"Privileges and immunities" has been 'settled' as not meaning this for over one hundred years. I do not see why then you think the decision here is so obvious.

Because of the immediately preceding words in the 14th amendment: "No state shall make or enforce any law which shall abridge..." combined with the relatively recent SCOTUS ruling that re-affirmed that the right to bear arms is an individual right of citizens. Sounds pretty obvious to me.

The issue with freedom of speech is that speech is banned based on content. If your freedom of speech is banned based on content then any such trial against you is unfair by definition. You are being put on trial for your ideas where people who act similarly, and with similar effect, but have differing ideas are not arrested at all.

That's not what I meant by being essentially the same argument. I meant that the phrase "No state shall make or enforce any law which shall abridge..." is applied to the right to bear arms in this argument just as it would be applied to freedom of speech in a similar argument.

 

[TheStatutoryApe]

Al68: I think that we are having an issue with what constitutes "due process". Due process is the manner of your being charged and tried for a crime. That legislation may be passed that restricts your liberty is irrelevant. There is nothing in the constitution that says your liberty may not be restricted. Sooo... could you show me how it is that it effects due process?

Because of the immediately preceding words in the 14th amendment: "No state shall make or enforce any law which shall abridge..." combined with the relatively recent SCOTUS ruling that re-affirmed that the right to bear arms is an individual right of citizens. Sounds pretty obvious to me.

I believe the issue is what constitutes "privileges or immunities" and since the decision of the court in 1873 it has specifically not been interpreted in the manner which you suggest. That the court would suddenly decide otherwise after over one hundred years does not seem very obvious.

That's not what I meant by being essentially the same argument. I meant that the phrase "No state shall make or enforce any law which shall abridge..." is applied to the right to bear arms in this argument just as it would be applied to freedom of speech in a similar argument.

I was referring to constructing an argument for incorporating the second amendment through the due process clause.

 

[BobG]

Because there was no fair trial for the majority of Chicago citizens that were deprived of their liberty by the ban. But that argument was the "back-up" argument.

The main argument is the privileges and immunities clause, which has been interpreted as a prohibition on the states depriving citizens of the same rights the federal gov't is prohibited from depriving them of.

I, too, haven't read the entire opinion, I just scanned over it, but the dissenting opinion interests me far more than the majority opinion. My instinct tells me that, as in most cases like this one, the majority opinion will just point out what I consider to be obvious.What if it were newspapers or political pamphlets instead of guns that were banned? I think the argument is essentially identical.

Thomas said the ban was unconstitutional because of the privileges and immunites clause of the 14th Amendment. Alito, Scalia, Roberts, and Kennedy said the ban was unconstitutional because of the due process clause. (Kind of an interesting situation where, while you have a majority that agreed the ban was unconstitutional, there is no majority opinion of the court, bringing into doubt whether this case will set any precedents for future cases.)

And the due process doesn't entitle every person to a fair trial (or if it does, I sure haven't gotten mine). It says a person can't lose their liberties (or rights) without a fair trial. So the argument has to be based on the idea all citizens have a right to bear arms and that that right can't be abridged by either the legislature or by a popular vote of the majority. (And, obviously, there could be some debate about that point since a majority of the court rejected that idea.)

 

[TheStatutoryApe]

Thomas said the ban was unconstitutional because of the privileges and immunites clause of the 14th Amendment. Alito, Scalia, Roberts, and Kennedy said the ban was unconstitutional because of the due process clause. (Kind of an interesting situation where, while you have a majority that agreed the ban was unconstitutional, there is no majority opinion of the court, bringing into doubt whether this case will set any precedents for future cases.)

The majority opinion is the only one that particularly matters. Concurring opinions are just a way for the justices to add their "two cents". The only force in a concurring opinion is that it is the opinion of a justice on the supreme court (though not the whole court). If nothing else it serves to show lawyers that there is at least one justice willing to hear like-minded arguments and that may be all that is necessary to get their case heard.

And the due process doesn't entitle every person to a fair trial (or if it does, I sure haven't gotten mine). It says a person can't lose their liberties (or rights) without a fair trial. So the argument has to be based on the idea all citizens have a right to bear arms and that that right can't be abridged by either the legislature or by a popular vote of the majority. (And, obviously, there could be some debate about that point since a majority of the court rejected that idea.)

"The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature." - Alexander Hamilton

The "due process" clause means that all citizens must be treated, both by federal and state courts, to the same rights and procedures as any other when dealing with the court, and that you may not be punished, or made a criminal, without due process. Since the 2nd amendment protects against interference from the fed, not the states, it must be shown that the ban interferes with due process itself in order for it to be incorporated through the "due process" clause. To say that persons rights are being taken or stripped without due process requires that those rights were protected from interference by the particular legislative body to begin with. This would require the sort of interpretation that Justice Thomas apparently wrote in his opinion relying on the "privileges or immunities" clause.

 

[Al68]

Al68: I think that we are having an issue with what constitutes "due process". Due process is the manner of your being charged and tried for a crime. That legislation may be passed that restricts your liberty is irrelevant. There is nothing in the constitution that says your liberty may not be restricted. Sooo... could you show me how it is that it effects due process?

I don't think we disagree with what constitutes due process, assuming we agree that the majority of Chicago residents were not charged and tried for a crime, and therefore not afforded due process that would justify depriving them of liberty. We seem to disagree on what "deprived of liberty" means.

But as you point out in your reply to BobG, this assumes that the liberty they were deprived of is a protected liberty. And if it is, the privileges or immunities clause applies, and the due process argument is irrelevant.

I believe the issue is what constitutes "privileges or immunities" and since the decision of the court in 1873 it has specifically not been interpreted in the manner which you suggest. That the court would suddenly decide otherwise after over one hundred years does not seem very obvious.

By obvious, I was referring to it being obvious what the constitution says, not obvious how it will be "interpreted" by a court. I'm well aware that the privileges or immunities clause has been considered to have no practical meaning whatsoever by courts in the past. That doesn't make it any less obvious what the 14th amendment actually says.

I just looked at the Wiki entry for the 1873 decision, and it would seem to have no bearing on this issue, since it ruled that the "privileges or immunities" clause in the constitution only protected rights guaranteed by the United States, not just by individual states, so did not apply to the right of butchers to exercise their trade, since such rights are not federally guaranteed. The right to bear arms is a federally guaranteed right.

I was referring to constructing an argument for incorporating the second amendment through the due process clause.

Same principle, if the right to bear arms is considered a protected liberty.

 

[turbo]

Same principle, if the right to bear arms is considered a protected liberty.

Though we are in substantial agreement on this issue, it is best to point out that "arms" have changed over the years. From the founding of this country, we have gone from single-shot flintlocks, to single shot percussion arms, to multiple-shot percussion arms, to multiple-shot cartridge arms, to double-action cartridge arms, to auto-loading cartridge arms. There is an additional layer of regulations restricting (but not barring) the possession of fully-automatic weapons, requiring the owner to pay a couple of hundred bucks to license each such weapon and requiring the FFL-holder (gun dealer) to pay a yearly occupational tax of $500 before he can sell or transfer such weapons.

IMO, the rights of the gun-owners have been infringed in two principal ways in recent years. 1) restrictions on so-called "assault weapons" that have certain cosmetic features such as pistol grips, bayonet lugs, etc, and 2) regional restrictions on the ownership/possession of hand-guns. In the case of 1) the laws are nonsensical in that they ignore the much more powerful and accurate semi-automatic weapons that are freely available. In the case of 2) local authorities have banned or restricted the possession of conventional arms simply because they are hand-guns. This does not eliminate hand-guns from their environs - it only ensures that honest law-abiding citizens cannot own them, even if they live in a very dangerous area where such weapons might be productively used for self-defense.