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Does the Second Amendment protect the rights of felons and the mentally incompetent to have guns? Joel Send a noteboard - 22/12/2012 02:35:16 AM
The Second Amendment does not require a valid EXCUSE to have any weapon; it requires a valid excuse to DENY one. Failure to pass a mental health/criminal background check, receive adequate training and certification of same, or license and register the weapon all qualify, IMHO, but the guns inherent lethality does not, not unless we also ban swords, knives, bats and every other lethal weapon. You always said you did not need a gun because of your mag light, but it could easily shatter a skull or rupture an organ: Should you therefore be prohibited from owning it? Are its self-defense applications insufficient cause to exempt you from that ban?
In a classroom debate in high school, just to make trouble, I asked the presenters if they thought Easton or Hillerich & Bradley should be liable if someone uses their sporting products to kill someone. When the other kid said yes, I pointed out that those companies make baseball bats, not guns. It's all fairly silly, IMO, because like it or not, the 2nd Amendment is the law of the land, and however you parse the militia clause, the fact is that an independant clause explicitly prohibits infringments on "the right of the people". The need (and precedent) for a Constitutional amendment to ban drugs did not stop the government from doing so, of course, much less waging war on them without an exit strategy (talk about your quagmires! ), so whatever the legality, the practicalities might be a different issue. But legally, to restrict gun ownership, we should have a Constitutional Amendment.

"Restrict"=/="infringe." We can and do set all kinds of conditions for having ALL guns without banning ANY.

As to the militia clause, it is the Second Amendments whole basis. It is GRAMMATICALLY dependent on the other clause, but that one is LOGICALLY dependent on it. Saying, "a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," equals saying, "the right of the people to keep and bear arms shall not be infringed because a well regulated militia is necessary to the security of a free state." Effects are superfluous absent cause, and the Second Amendment is superfluous absent militias. The Framers wanted an armed citizenry, but also wanted that arming ORGANIZED; had they wanted anarchy, they would not have bent over backwards to ensure the nations leaders were not decided by universal adult suffrage. ;)

All that aside, and whether we like it or not, Mao was correct to say political power comes out of the barrel of a gun, and gun rights advocates are correct to say the entire Bill of Rights ultimately rests on the Second Amendment. Again I note there can be little doubt what the Framers intended by the Second Amendment

Not to mention it would be a rather absurd abberration for, in the midst of an enumeration of special protections for citizens, particularly against the government, for one Amendment to explicitly state the right of soldiers to keep and bear arms. The National Guard definitely falls into the latter category, and the idea that the Amendment pertains to a state-sponsored militia as opposed to a national army is equally absurd, given the explicit ban on states waging war or maintaining their own armies in peace time. Limiting the 2nd Amendment to ANY government-related forces is akin to suggesting the 1st only protects government publications or the right of government personnel to assemble peacefully.

"Militia"=/="army." Trained and armed but martially inactive private citizens to levy in time of war are not a standing army, else all fifty National Guards would violate the Constitutions ban on state armies in peacetime. The Constitution, as you well know, focused heavily on limiting FEDERAL rather than STATE government, so the Second Amendment empowering state militias to resist federal tyranny just as they did during the Revolution is logical. I have often contended the Constitution requires the federal government protect citizens from state government tyranny only to have you counter that it leaves everything to state discretion except what it explicitly reserves to the federal government, per the Tenth Amendment. I still disagree, but if you are conceding the point now we must revisit MANY old discussions. :P

given that the American Revolution began at Lexington and Concord, when the British Army tried to confiscate guns the militias used to resist government tyranny, and the militias met them in battle to prevent it. If the Founding Fathers did not intend the public to have access to military weaponry they would have remained loyal British subjects.

My own interpretation of the language of the militia clause is that "security of a free state" does not imply protection of independence or sovereignty against foreign powers, but retention of individual liberties against the state state itself. In modern uage, it would read "A well-armed citizen body being necessary to prevent a free state from turning tyrannical, the right of the people..." Since the Preamble speaks of the Federal Government being created to "provide for the common defense" and uses the word SECURE in relation to individual liberty, it seems that's what they mean in the wording of the 2nd Amendment. Since that preceding clause and the apparent original intent of the Framers would suggest military weaponry, it would then follow that under the spirit (if not the explicit letter of the law) that hunting weapons, target shooting and other sporting-intended guns and bows, and personal self-defense or home protection weapons are NOT protected. While the letter of the Second Amendment protects anything that could be used as a weapon (hey...I wonder if you can use a 32 oz soda to kill a man - make Bloomberg back off), the spirit implied by the militia clause would appear to restrict its protection exclusively to military weapons and anti-government weapons, such as high-powered rifles, rocket launchers, anti-tank & aircraft weaponry, and especially, cop-killer bullets. A burglar or mugger (Omar Little notwithstanding) is highly unlikely to be wearing a bullet-proof vest, so armor-piercing rounds known as "cop-killers" rather than that name being a reason to ban them, would seem to be exactly the kind of thing the Founding Fathers wanted the citizens to have access to.

The Preamble does not invoke INDIVIDUAL liberty, though I would say the Constitutions explicit efforts to protect minority (especially those of an individual, the ultimate minority) strongly implies it; I am not a strict constructionist.

I share your view of the militia clause as applied to federal, but not state, government. It is easy to imagine one or more state militias rising to resist federal tyranny; they did in 1776, and many still feel they did again in 1861. It is impossible to imagine citizens of one or more states individually rising to resist state tyranny. Not only does the Constitution require the federal government intervene on their behalf (which should have been the Civil Wars pretext,) it would (as it has) surely do so via the US Army and/or National Guard. In every case where individual citizens revolted against state government the federal government would deploy the military to aid either:

1) Citizens resisting state tyranny, which could consequently not hope to endure, or

2) Aid states imposing tyranny, producing the resistance to federal tyranny for which the Second Amendment exists.

In neither case does the Second Amendment empower militias to resist state tyranny by force. The very notion is peculiar to the point of contradiction: That militias, responsible to and commanded by state governments, should forcibly oppose them. No lesser light than John Adams, godfather of American conservatism, evidently agreed when he stated that "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, counties or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."

That is not to say the Framers were unanimous in their view of militias and the right to bear arms; the above qoute comes from a legal article indicating their views of each were often in direct conflict. It suggests that "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" reflects a compromise as much as a syllogism: Conservatives/Federalists, fearing anarchy and craving the rule of law preventing it, favored language empowering militias responsible to state governments, with no provision for an individual right to arms; liberals/Anti-Federalists favored language empowering a universal citizens right to bear arms, with no provision for state organized militias.

The Framers employed the time honored "solution" of all politicians: Their desperate attempt to satisfy both sides produced a compromise that satisfied neither. Perhaps it should not surprise us that we are no more equal to resolving the issue than our nations founders were.
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Interesting article from a 1992 issue of Military Law Review
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When guns are a big national issue, how do reporters & pundits not know facts about them? - 21/12/2012 05:33:14 PM 1553 Views
You don't hunt by walking into a classroom and shooting 20 deer - 21/12/2012 05:56:16 PM 1003 Views
You're actually not right on that one - 21/12/2012 07:49:53 PM 931 Views
That wasn't the point I was making - 21/12/2012 09:49:40 PM 874 Views
You should probably clarify it then - 21/12/2012 10:47:26 PM 1029 Views
His post was perfectly clear. Yours seemed like a response to an entirely different post. - 21/12/2012 10:53:39 PM 1185 Views
Explain that remark, it is not obvious to me *NM* - 21/12/2012 11:00:10 PM 535 Views
I think - 21/12/2012 11:13:34 PM 864 Views
Thats' easy, there is simply no such thing as a 'hunting rifle' - 21/12/2012 11:17:41 PM 870 Views
I'd say the expert gunsmith - 21/12/2012 11:28:02 PM 916 Views
I thought I was being perfectly clear. - 21/12/2012 10:57:35 PM 883 Views
Re: I thought I was being perfectly clear. - 21/12/2012 11:25:04 PM 934 Views
Oh I wasn't commenting on the standard of people here - 21/12/2012 11:29:36 PM 851 Views
you're largely correct, which is why we need stronger laws on ownership not guns per se - 21/12/2012 09:39:14 PM 842 Views
I can't think of a better reason than self defense - 21/12/2012 10:33:26 PM 905 Views
He is right about Australia - 21/12/2012 10:46:27 PM 879 Views
No kidding - 21/12/2012 10:59:28 PM 865 Views
If you knew all that - 21/12/2012 11:02:38 PM 892 Views
I think you are on the right track, but to the wrong destination; "lethal weapon" is redundant. - 21/12/2012 11:05:29 PM 872 Views
My read is that the 2nd Amendment not only allows, but mandates, cop-killer bullets. - 22/12/2012 12:45:04 AM 918 Views
Does the Second Amendment protect the rights of felons and the mentally incompetent to have guns? - 22/12/2012 02:35:16 AM 1083 Views
Yes the media is using terms incorrectly but the point still stands. - 22/12/2012 03:02:18 AM 807 Views
Re: Yes the media is using terms incorrectly but the point still stands. - 22/12/2012 04:12:30 AM 863 Views
umm... - 22/12/2012 12:41:31 PM 776 Views
1997 North Hollywood Shootout - 22/12/2012 04:07:39 AM 944 Views
Laws against murder failed to prevent that, too; clearly they are ineffective and should be repealed - 22/12/2012 06:02:24 AM 997 Views
Such laws were never intended for prevention, they define actions that will be punished. *NM* - 23/12/2012 12:57:57 PM 566 Views
So do laws against getting a gun without screening, training and certification. - 23/12/2012 02:01:32 PM 818 Views
Then CHANGE the Constitution, don't ignore it. *NM* - 26/12/2012 03:12:11 PM 499 Views
I am not suggesting either changing or ignoring the Constitution. - 26/12/2012 04:01:02 PM 927 Views
Yes you are. - 26/12/2012 08:06:01 PM 730 Views
Learn logic, and stop needlessly trying to teach me grammar. - 26/12/2012 08:55:25 PM 892 Views
Lear to read, and I won't have to - 27/12/2012 04:28:59 PM 949 Views
You are wrong. - 22/12/2012 12:14:40 PM 897 Views
That explains much; I read somewhere Brits are averse to it. - 22/12/2012 01:17:15 PM 830 Views
We're also averse to being wrong. - 22/12/2012 02:53:49 PM 899 Views
So you say... - 22/12/2012 03:32:16 PM 821 Views
guns r stpid *NM* - 23/12/2012 12:39:30 AM 583 Views
What bemuses me about this thing with Adam Lanza, is that his mother had 5 registered guns - 23/12/2012 07:10:26 AM 914 Views
She was asleep with him in the house. - 23/12/2012 02:24:47 PM 890 Views
LOOK, look, there is another one... - 26/12/2012 03:13:45 PM 830 Views
I find the absolutist ant/pro-gun positions equally dangerous and absurd. - 26/12/2012 04:20:37 PM 808 Views
So we should just *kinda* ignore the Constitution *this* time... But what about NEXT time... - 26/12/2012 08:08:12 PM 791 Views
No, we should enact gun regulation the Constitution explicitly empowers. - 26/12/2012 09:02:12 PM 810 Views
Which would be... NONE. *NM* - 27/12/2012 04:31:53 PM 505 Views
"A well regulated militia being necessary to the security of a free state...." - 28/12/2012 05:14:49 PM 805 Views
*see previous grammar lesson* *NM* - 28/12/2012 10:31:43 PM 491 Views
The instant it becomes relevant, I shall. - 28/12/2012 11:45:01 PM 1000 Views
Your point being? - 27/12/2012 10:47:29 AM 790 Views
Facts are irrelevant when FUD is the order of the day. - 24/12/2012 04:34:18 PM 799 Views
It irritates me too. *NM* - 01/01/2013 01:55:05 PM 508 Views

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