Amendment XXVIII (Amendment 28 – Clarification of the extent of the right to bear arms):
The careful control of dangerous weapons being necessary to the security of a free people, the right to bear arms shall not be guaranteed by this constitution further than is necessary for the defense of persons, hunting game for food, and participation in well-regulated sport that does not threaten life, health or property.
If you have a twitter account, TWEET THIS EVERYFUCKINGWHERE, but especially to your senators, your congressional rep, and anyone who campaigns for even half a second for POTUS.
Why not just repeal the second amendment?
Because I would rather propose this and get it passed than propose a complete repeal and have nothing happen.
I constantly try to balance eradication and harm reduction, and there are times when the two strategies do not conflict. But there are times when they do. I’m not willing to permit one more mass shooting that could have been prevented by this amendment just so that I can propose an amendment which will prevent zero mass shootings because it is never enacted.
Basically: I have too little faith in the ability of US citizens to recognize the threats that guns pose. We’ve been too miseducated for too long. This amendment, however, preserves exactly what people say that they want to preserve: personal defense, hunting, and sports. It neutralizes the right-wing argument against change while preserving at least **some** human life that would otherwise be lost.
There may come a day when US citizens actually read the statistics that show unequivocally that keeping a gun in the home for self-defense (or any reason) endangers the residents of that home much more than not keeping one and thus (in theory, at least) makes one more vulnerable to a violent home invasion. Maybe they’ll voluntarily give up their guns at that point.
In the meantime, this would eliminate any question that regulating or even banning high-powered, rapid-fire rifles is well within the authority for any state who wishes to enact such legislation.
Of course, at that point we still have to persuade state governments to actually protect their citizens – just because the federal constitution doesn’t protect a right doesn’t mean that a state can’t establish and protect such a right in their statutes or state constitutions, but at least they’d have to fight to get that enacted, and maybe would have to actually respond to reasonable questions, like, “Will this save lives or will this result in more murders, suicides, and accidental shooting deaths?”
So long as the 2nd amendment exists in the form it does, and SCOTUS is interpreting it the way it does, then the people who want access to offensive weapons (not defensive weapons) never need make any effort to justify their actions. I want that to end.
Hi Crip Dyke
Saw this on WHTM. I can see what you’re trying to achieve here; or at least get people taking about.
At the risk of being ‘that guy’ though I’m not sure the wording set out would achieve the aim you’re after. I can understand your use of ‘necessary’ and that you’ll have your lawyer head on in choosing that word; but I think the purpose of your amendment would be defeated by the exemption for ‘defense of persons’. Presumably your argument would be that something like an AR-15 would not be ‘necessary’ for self defence/defence of another; and that the aim could be achieved with a less lethal firearm?
But won’t there always be an argument that the capability of an assault rifle might the only way of defending in certain circumstances, no matter how unlikely those circumstances might be? Might an applicant only have to raise the *possibility* of such a circumstance arising to argue that it is therefore necessary to have that level of lethality?
I think you might need to use a more restrictive test to achieve the aim you’re after. As you point out though; you face quite a battle in view of the culture there.
It might not be hopeless though. People often forget that we used to have very liberal firearms laws. It’s funny, but the one group of people prohibited from possessing firearms used to be the police. In 1968 though the Firearms Act came into force. That introduced licensing and the requirement to have a “good reason” for possessing a firearm. Self defence is explicitly stated to never amount to a good reason.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/518193/Guidance_on_Firearms_Licensing_Law_April_2016_v20.pdf
Alan, those are details.
Point being, the Constitution is aspiration, only then comes legislation, and then comes regulation. Your quibble relates to the latter two.
@Alan:
Thanks. I’m always willing to engage in law geekery, of course, but I think
1. “Necessary” is different from “possibly necessary”, and,
2. therefore I think that if interpreted correctly this is literally the strictest test I have any hope would be passed by this congress or ratified by our current state governments.
Of course, there’s also,
3. Getting people to talk about this amendment doesn’t mean that they’ll adopt my exact wording, so I’m not as fussed about getting the wording just so as I might if I were forwarding a legislative proposal directly to the BC lege or the US Congress or something.
Right now it’s intended as a twitter document more than a legal one. If CNN decides to interview me about it as an actual amendment proposal, I’ll have to do some work to clarify exactly what I think such an amendment should mean and should do. I would hope (though probably in vain) that they also call me on titling it “Amendment XXVIII” when, ideally, the ERA would be ratified this week while this was still making its way through congress, relegating it to Amendment XXIX.
Yeah, I think US jurisprudence is the same as ours, and common law countries generally, in that ‘necessary’ is a a very high bar. Akin to “absolutely the *only* possible way that…”
The nearest thing we have to a codified constitution here is the ECHR. That uses ‘necessary’ a lot to put limits on rights. The usual formula being “shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society”.
You mean people won’t be able to stockpile guns for bringing down tyrannical presidents or do they manage to claim that a would-be tyrannical president by merely potentially existing imposes such a danger that requires sufficient arms that might bring them down to be accumulated?
@2 Crip Dyke
I think the term “defensive weapon” is an oxymoron. If it’s a weapon, it can be used offensively, almost by definition. To be sure, weapons can be USED offensively or defensively — but the decision on how they are going to be used rests in the mind of the user, not the weapon itself.
@brucegee1962 I disagree. Virtualy anything can be used as a weapon, even inarguable non-weapons (that is why in CZ a weapon is any object that is used as a force multiplier in causing bodily harm – so if I stab someone with a pencil, it still will be prosecuted as an attack with a weapon and the penalty will be the same as if I used a knife).
But for things that are weapons by design, there are options that make them more effective at offense – like extended range, high capacity magazines etc., high damage output – and design options that make them more effective at defense – limited range, focus on non-lethal incapacitation etc.
In this sense, a tazer or a knife are weapons that despite that they can be used offensively, because of their limited reach and lethality they are more effective as weapons of personal protection (a knife with the added bonus that it is actually a very useful tool).
A handgrenade or a semi-automatic rifle can be perhaps, in some higly over-the-top hypothetical scenarios, used defensively, but their design focused at indiscriminate damage and high lethality make them clearly offensive weapons.
Why give it a number at all? Give it an easily-remembered acronym like ERA: ACA (Armament Clarification Amendment), or CAA (Clarification of Armament Amendment), or AF2A ( Amendment to Fix the 2nd Amendment), or something like that.
@Owlmirror:
All amendments are given a number when ratified. When legislatively forwarded to the states but not yet ratified/enacted proposed amendments are typically given a fun name, like “The ERA”.
But we’re constantly told that gun control can’t be accomplished in the US, so I thought giving it the form of a final, ratified version fully incorporated into the constitution was useful. In other words, any old fool can propose any damn thing as a constitutional amendment, and those damn fool things can have fun and catchy acronyms like “The DaFT Amendment”.
I didn’t want people to look at those words and think, “Cool!”
I wanted people to look at those words and thing, “Yeah. Actually part of the constitution. I can see that.”
I have weakened in my support of gun rights over the years. I won’t defend them here and now. I will suggest that the current approach is somewhat foolish.
The Facts:
About 30,000 die from guns in the US every year. About 2/3 are suicides. Only a small fraction, circa 1%, are from mass shootings.
The large majority of these are from handguns. The large majority of the homicide gun deaths are from handguns. Handguns also account for approx 50% of mass shooters and 50% of deaths from Mass shooters, according to the available dates published by Mother Jones, last time I checked and broke it down. Ex: Virginia tech IIRC was only handguns, with mostly 10 round mags, with a few 15 round mags. Columbine IIRC was a rifle with only 10 round mags. Mass shootings happen over minutes, not seconds, and the seconds it takes to reload often – but not always – does not substantially change the shooters’ effective fire rate.
I think that anyone who says the following is grossly ignorant about these and other facts about guns.
The terms “high powered” and “rapid fire” are so nebulous that they’re basically meaningless feel-good slogans, just like the term “assault weapon” or “military style”. Did you know that most / almost all guns were designed first for the military? I don’t have a citr on that particular one, but I strongly suspect it to be true. Saying that a gun is “military style” should elicit a response of “duh, where do you think the design first came from? Why do you think it was designed in the first place?”.
The problem is this fictional belief that there’s this safer, non military category of guns, and that it’s just obvious what this category is. Only people who know nothing about guns say something so foolish.
If you want to get serious about banning guns by make and model, then ban by the following categories.
All semiauto rifles. I think such a ban will do very little because of the reasons that I gave above, but this might do something like a few percent difference for the category of mass shooting.
All semiauto guns, rifles, handguns, shotguns, including revolvers. Now we’re talking. This will actually so something. It would do a lot.
Anything short of these category bans is just being grossly ignorant about guns and how guns are used in suicides, homicides, and mass shootings. In other words, there is no other category of guns that makes sense to talk about.
Sorry, missed one option.
Optionally – ban semiauto firearms with detachable magazines. That might do something substantial.
This is nonsense.
A sword in a swordfight has offensive and defensive capabilities. The defensive capabilities of a sword in a swordfight include the ability to block/parry an opponent’s strike.
A taser has no defensive capability. It has non-lethal capability, but not defensive. It cannot block. Its only usefulness is offending your opponent, e.g. incapacitating your opponent. Now, I know what you mean. You mean “wouldn’t it be nice to have Star Trek style phasers that can only stun”, and yes, I agree, that would be nice. Effective nonlethal armaments would be amazingly useful. I wish such a thing existed. It might make several aspects of this mess a lot better than what it is now.
The comment about knives being better defensive weapons because they have shorter range – complete nonsense. One way that I can make sense of of that is knives are worse weapons compared to guns because of their lesser range, and that is correct. Consequently, knives are seen as less dangerous than guns because they are less dangerous than guns. You mean to use the word “dangerous”, “effectiveness as a weapon”, etc. instead of “defensive / offensive”.
Alternatively, I might make sense out of that by assuming you believe that civilian self-defense situations only arise at close range, and civilian illegal homicide situations only arise at long range, but that’s so counterfactual that I’m doubt that you meant to make such a silly argument. I mean – as soon as you think about it, not only is it counterfactual, but it’s also internally logically inconsistent. How could it be possible that most civilian attacks happen at long range but someone interested in self defense would be interested in short range defense?
Tangent: Regarding defense vs offense, knives in particular are a fun case because they have almost no defensive capability in a knifefight, unlike a sword in a swordfight, but that’s a discussion for another time.
This is the design goal of all weapons. Remember that practically all weapons were first designed for the military, and they were designed to be effective as possible at “indiscriminate damage and high lethality” in almost every case. The only difference here is effectiveness of design. Guns are more effective weapons than knives. Saying that it’s about offense vs defense is ludicrous.
@GerrardOfTitanServer:
Before I begin, the most important part of my comment will be last. But I would like to address the specifics of your criticisms of “high power” and “rapid fire” before my rousing conclusion. So…
As it happens, I’m very much aware that many gun terms are nebulous and frequently poorly used.
“High power” is very much a term that is used to distinguish different guns, though this is often subdivided into things like, “high stopping power” and “high penetration power”. “High power” is roughly – though as I understand it, not perfectly – synonymous with muzzle energy. Some “high power” weapons can shoot through a wall and still have enough energy to fatally injure someone on the other side, though this depends on exactly where the power is coming from (the velocity or the mass). “Low power” weapons can easily break through two layers of sheet rock on either side of a wall, but lose a lot of energy in doing so and are dramatically less likely to threaten the life of someone on the other side. “Low power” weapons also have less range.
Thus limiting muzzle energy limits the potential for accidental shootings – both in terms of making them somewhat less likely and also somewhat less damaging when they do occur.
Moreover, in the rare situation when someone is engaged in the type of shooting we see this weekend, not only is ducking behind objects more likely to be an effective defense, but “low power” weapons are much less likely – indeed dramatically less likely – to cause injury through the types of body armor worn by US police.
I do not here set any dividing line between “low power” and “high power”. I am no expert in firearms and am not willing to venture a guess as to what muzzle energies are reasonable for which weapon types. But “power” and its rough synonym “muzzle energy” are indeed terms used by knowledgeable gun enthusiasts, even in the modified “high power” form. I feel no embarrassment about having used that phrase here.
Secondly “rapid fire” was deliberately chosen by me for its vagueness. Exactly how “rapid” is “rapid” is reasonably debatable, and a decision I’d be happy to leave to experts. But there’s no ambiguity that I’m discussing rate of fire here, and I see no reason to believe that this term is particularly problematic. I feel no embarrassment about having used that phrase here either.
But really, I think you’ve missed the big picture here:
The amendment 28 here proposed does nothing to outlaw the possession or use of any weapon – not “assault weapons”, not handguns, not H-bombs.
Amendment 28 simply limits the number and types of weapons whose possession and/or use the US government must by law protect.
In other words, Amendment 28 isn’t a gun control measure at all. Not even a little bit. The grossly permissive gun laws found in various states would all still be legal under the amended constitution. Amendment 28 enacts not one tiny bit of gun control.
I have here made no proposal at all to limit or ban guns. What I’ve done is propose a constitutional amendment that makes subsequent gun control legislation possible.
Different states will make different decisions about what gun control legislation they might then enact, and few or none of them would draw regulatory lines in the exact locations that I (in my firearm ignorance) would draw them.
…BUT if you’re interested in what I would propose as gun control legislation in a hypothetical world where Amendment 28 had already taken effect, I might say something like:
Banning the personal possession of functional handguns not in a lockbox (with regulations detailing what is a qualifying lockbox), save for at licensed and qualified gun dealers, on the person of on-duty law enforcement officers, and on the premises of licensed sporting ranges.
Banning the continuous personal possession of functional handguns in a lockbox. Continuous possession would be defined as possession for more than 24 hours and not in the process of being transported from one place of legal long-term storage to another place of legal long-term storage. So you can buy a handgun in california and put it in a lock-box in your trunk and drive it to your sport range in your home town of Austin over the course of a 2 day or 3 day road trip. But you can’t buy a gun in Austin and keep it in your house for 2 or 3 days before taking it to your gun club and giving it to them to keep in the weapons locker.
Banning the personal possession of functional rifles (permitting the same exceptions that applied to handguns above) with a rate of fire more rapid than X (to be determined by experts, but in my uninformed imagination might be something roughly in the neighborhood of 1 shot per 2 seconds). Semi-automatic is about the mechanism by which a firearm ejects a cartridge, reloads the barrel, and becomes otherwise ready to fire. I don’t object to any particular mechanism by which those things happen, because to me the dangerous part of a semi-automatic weapon is the rate of fire. If a semi-auto mechanism takes 1.5 seconds to complete and also triggers the safety to reset so that then an intentional movement to turn the safety off again must be undertaken before a second trigger pull will cause another slug to fire, the fact that all this happens “semi-automatically” doesn’t bother me in the least.
NOTE: Obviously the handgun/rifle distinction must be encoded in law as well in order to make this differing regulatory scheme possible. I leave this, also, to the experts, though I imagine it would have something to do with weight and (even more important) barrel length.
Banning the personal possession of any ammunition which would deliver a muzzle energy above X (to be determined by experts). Banning the personal possession of any ammunition which is designed for or capable of penetrating X (to be determined by experts, with an eye towards making it unlikely to seriously injure someone shot through a wall or car door, etc. – the exact “unlikeliness” standard also to be determined by experts). Ammunition used by on-duty law enforcement officers would not be considered “personal possession” while in the duty weapon. This would mean that weapons would be loaded and unloaded in the law-enforcement agency’s weapons’ locker, but would allow legislation to determine that some ammunition is appropriate for some law enforcement purposes even when it is not appropriate for civilian purposes.
Long-barrel shotguns would have the least regulation, and I don’t really know enough about them to know exactly how I would want them regulated. Short-barrel (by design or retro-actively “sawed off”) shotgun possession would be regulated largely because the shorter the barrel the easier it is to use in a successful suicide attempt.
Finally, I would propose banning the personal possession of any functional firearm in any building to which children have access unless the firearm is in the personal control of an adult legally allowed to possess that firearm or the firearm is in a lockbox or safe which those children cannot open. As with other legislation relating to age (drivers licenses, voting, purchasing alcoholic beverages, military service, whatever) what constitutes a “child” might vary from 18 years of age, and might even be different from state to state or weapon to weapon. Perhaps at age 15 you might be allowed to use a sport pistol at a licensed gun range but be unable to carry your own rifle while hunting until age 18 (or vice versa or whatever). I’m aware enough of the limits of my own knowledge to say both 1) keeping guns away from kids is important, and 2) I don’t know all the details about which kids must be kept from which guns in which environments in order to minimize gun accidents. I’ll trust people with data and good argument to tell me this.
I also have problems with categorizing certain guns as “defensive” — that’s far too nebulous to be useful — but brucegee1962 and GerrardOfTitanServer already complained, so I won’t belabor that point. Plenty more objections where that came from….
CD, you seem to be proposing (as the 2nd amendment is also usually interpreted) a right for individuals: this is something we as a society should take special/extraordinary (legal) measures to protect, that individuals should be able to arm themselves with guns in order to (among other things) defend themselves against others in their society. Although your phrasing puts the emphasis on the other foot, that is still the implication apparently. (I guess you could say it’s a slightly less expansive version of the 2nd amendment we already have, but how much less expansive isn’t clear.) So what does that really say?
Don’t we already create law enforcement and military institutions in our national/state/local governments, for the purpose of providing security/defense to the people here? We don’t just have a bunch of vigilantes running around, performing this type of “service” for us, however they see fit. Perhaps at one time, in the Wild West or wherever, that was closer to the truth, but the country is different now.
Also, don’t we already recognize an individual’s right to self-defense, independently of the 2nd amendment? We don’t seem to need any specifications about weaponry for that (or the lack thereof, since no weapons may be literally “necessary” in various circumstances). I mean, nobody is saying it’s worthwhile to write up a silly amendment which says, for instance, that individuals have some kind of “right” to use sporks for self-defense, or that they could do this with their elbows or a phonebook or their grandmother’s favorite quilt. Guns are clearly getting special treatment here, so why is that?
And what does it really say, to suggest that hunting (and eating) non-human animals is somehow a “necessity” in modern life, that we’ll just have to accept the cost of many people shooting each other every day, in order to secure this precious thing that “we” (or at least some people, somewhere) supposedly need? It should go without saying, but it had better not be that such people “need” this, because we as a society are failing to support them in countless other ways, since the point here isn’t to offer excuses for those failures.
Shooting for sport just seems more ridiculous in some ways … is there any necessity in that at all, which you can weigh (favorably!) against the cost of numerous dead/injured people on a daily basis? I’ve shot at targets when I was younger, and it is sort of entertaining – what I don’t see though is how anybody could seriously believe something like that is so important, relative to those costs. Who needs it, or how bad would it really be for our society to deprive them of that?
When I’m feeling more bitter about it, the questions in my mind are more like “how the fuck did that bullshit even make it into this conversation?” or “are these people from a different fucking planet?” Cooking up exceptions for things like this, when (or if) you know what the costs are, just doesn’t seem like a serious or principled approach to take to this subject. So…. Why exactly should we want to do this?
As for re “semiauto”, yes, I understand you’re speaking in the abstract. I’m trying to add a little more focus on the realworld consequences because I hate the miscommunication that can happen without the necessary precision. I’ve read it twice now to make sure that I get it right, and I understand your position as: You would ban possession at home and possession on the person of practically every modern rifle design and every handgun design, with a few minor exceptions for some weapons for transporting them from a gun shop to a gun range, leaving only things like bolt-action and lever-action rifles and shotguns for use for hunting and self defense. Yes, I think this would have a very substantial effect. This is what I called for above as one of the two possible steps that might have a substantial impact.
Don’t your rules deny the effective use of guns as personal self defense, and didn’t you say that you wanted to recognize the right of using guns for personal self defense? Did I misunderstand? Are you proposing what you really want, which is a second plan apart from your first plan of a compromise amendment? Or do you really think that your regulations here are compatible with a self-defense right?
I don’t have sources on me, but even “low powered” rounds like most handgun rounds have tremendous penetration power compared to everyday objects like car doors. Car doors, especially for modern cars, are quite flimsy, relatively speaking. Please stop getting your information from Hollywood films and TV.
PS:
I am not being flippant when I say this, but if we were to constitutionally protect any sort of firearm, this is precisely the firearm that I want to protect. Under the supposition that it has no use except killing police officers, this is the best reason to protect it.
I am also very strongly against this provision, for much the same reaasons. As far as reasonably possible, and maybe even farther still, I don’t want cops to have any special rights to own, possess, carry, and use weapons. I don’t want to live in a police state. I don’t want police to be military. I don’t want military as law enforcement. I don’t want military on our streets. I don’t want it to be considered normal to have a bunch of heavily armed government thugs running around. It’s already hard enough for me to accept the possible necessity of special police armed response squads who keep their weapons under lock and key except after a report of an active shooter, and I definitely don’t want to go any further than that.
consciouness razor, I don’t think CD is saying that defense, hunting for food, and sporting are activities that need special defense on their own, she is saying that these are the *only* valid purposes to own or use guns by people who are not law-enforcement officers on duty. The goal is to narrow down the second amendment, not to create some special right in a hypothetical society where the second amendment does not exist. The idea being to get people who want guns for the above purposes on board.
So what does that mean? People are shot on a daily basis, which is a serious problem that our society has a responsibility to address. And you say it’s “valid” to shoot at targets for sport….. What the hell is that about? People are fucking dying here, so why the fuck should I care about anything like that?
Yes, and that’s what I meant by “less expansive.” I thought I made it clear that I understood this.
No. I don’t know how you got this impression, but it will be doing the same thing as the second amendment (according to standard interpretation), which is to create an individual right to bear arms. We’re not playing pretend and saying the second amendment was never part of our system … and we don’t need to do so, because this will act as a replacement for it (or a revision of it), one which clearly does not dispense with the idea that there should be an individual right to bear arms. Whatever this is supposed to do in the way of narrowing down the second amendment (like I said, that’s not so clear), what’s definitely not going on via this proposal is narrowing it down in that respect. That’s one aspect of it (maybe the only one) which is being retained, so don’t tell me the goal isn’t to do that.
Then why should I care whether they want guns for those purposes? Again, people are injured and killed every day. To those gun lovers, I will say “your concern is noted” and move on with the real business of making our society better, because they are just offering up a load of bullshit.
CD was also very explicit that nothing will be accomplished in the way of gun controls this way…. So, we “get them on board,” but not to actually do something that we have any coherent reason to do. Instead, the thinking goes, we’ll just aim for a consolation prize, because somehow it was decided that we shouldn’t aim for the real target. I really do not get that.
But seriously, it might help if you tried explaining it to me. Why should I care so much about making this small group of people happy? Is it really that much happiness, compared to the horrors we have to live with? Why shouldn’t they be the ones who have to care about what I think? What if I’m allowed to be as fucking obtuse as they are, just this once? If I am, then how do you intend to appease me? You could be trying to cater to people like me, instead of “people who want guns” for some reason, but the goal is apparently not to do anything like that. Why?
@both CR and Gerrard:
The 2nd amendment already creates the right to bear arms.
The proposed 28th amendment puts a MAXIMUM on those rights. It does nothing to create a minimum, which is what the 2A does, and which I would repeal if I felt I could. The 28th proposed here is written so as to be able to be passed. It would radically change the available space for regulation, but it would not establish any rights at all – for hunting or otherwise. If hunting is not protected by the 2A, then hunting is not protected, since the 28A protects literally nothing.
It’s true that it leaves intact some of the 2A, but any rights that exist are entirely contained in the 2A. They aren’t located, granted, extended, etc. in any way by the 28A. To the extent that 2A rights interact with the 28A at all, they can only be curtailed by the 28th.
@Gerrard:
I don’t think so, but to the extent that they do they would be invalidated by the 2A, even after the maximum protection of the 2A is limited by the 28A. Denying the availability of handguns for personal self-defense is not the same as denying the effective use of “guns” (here unmodified, which would include shotguns) for personal self-defense.
Again, I’m someone who has only read about guns. The only time I’ve ever touched a gun was when I was about 4 or 5 when I briefly touched one of the two rifles that my grandfather had given my father. They were kept out of my reach, but not locked, at the top of a closet. By the time I was seven, he had sold them and never bought another. The only time I saw him fire one of those rifles I was three or four and he and a friend shot maybe a couple rounds each (I only really remember one, but I’m sure they fired more than that) at empty oil cans after changing the oil on their cars.
However, from what I’ve read shotguns are a virtually ideal self-defense weapon because virtually no one fires accurately while under true threat of death. On-duty officers who have to meet training certification standards miss with more rounds than they hit with. Handguns are simply not “effective” self defense when fired by the average person. Moreover, to the extent that they can be effective when fired, they aren’t MORE effective than shotguns. In fact, the shotgun’s ability to land partial hits even when aimed badly and/or used by the untrained makes them more likely to be more effective. While this is an average case and any individual bullet fired might do more damage in a particular case than some specific shotgun discharge, at the level of public policy there is every reason to believe that shotguns are the more effective weapon for personal defense when fired. And, of course, when only waved around as an unfired deterrent, there is no reason to think that they are any more or less effective than shotguns. Finally, shotgun ammunition is less likely to cause serious injury at range, which makes it much more appropriate for personal defense in a city or other location where you can’t guarantee that no persons other than one good guy and one bad guy will be within flight range of a fired bullet.
Correct me with specifics if you think I’m wrong, but I don’t currently have any reason to believe that being denied a handgun is the same thing as being denied personal defense via firearm when shotguns are still available.
And sports like biathlon or skeet shooting, etc. Yep.
There’s no reason new designs couldn’t be created that would meet the requirements of my proposed gun control legislative provisions (which, again for clarity, have nothing to do with the 28A proposal above), but of extant modern designs you’re probably correct (and to the extent that you’re incorrect, the details of your inaccuracies are far beyond my level of knowledge).
I am not getting my information from Hollywood and TV. Some guns have greater muzzle energy than other guns. Therefore some guns have longer ranges and greater penetrating power than others.
No one needs a gun with an effective accurate range in the hundreds of meters for personal defense. No one should use a gun for personal defense which has a realistic chance of passing into another person’s property and doing damage inside that other person’s home after passing through that home’s walls.
Cars are suggested as illustrative of the concept, but I’m not using them as “information”. I’ve already said that experts would determine what muzzle energies – what “power” – would be reasonable. Physics makes clear that some energy (and thus injury causing power) will be lost when a projectile smashes through a solid object. Some accuracy will be lost as well. If car doors are flimsy enough that what passes through them loses too little energy and/or too little accuracy to make a statistical difference to injury causing power/likelihood, then cars wouldn’t be relevant to the decision about which ammo to allow. Though any relevant test would also have to imagine a pre-set range as well. Again, I didn’t propose all the details because I’m not knowledgeable here, but the ability of a bullet to cause damage to a person after traveling 100 feet through the air and then passing through a car door is different than the ability to cause injury after traveling 5 inches through the air and then passing through a car door (and might also be different from the ability to cause injury to a person after passing through a car door and THEN traveling 100 feet through the air). I am comfortable leaving experts to run the experiments and then make reasonable recommendations to legislators who can then consider the tradeoffs of those recommendations and enact appropriate legislation.
Separately, I haven’t stated this because I’m not at all knowledgeable about this, but I imagine that the injury-causing power of a bullet passing through a car would be greatly reduced if all the ammunition available were hollow points. If the impact with the outer car door panel is enough to deform the point, then accuracy and injury-causing power will both be reduced significantly when it tries to pass through the plastic inner panel. Would the outer panel be enough to deform the point? I don’t know, but it would be an interesting question to consider and I’d like to know the results of any appropriate research on that point.
In general, I’m for making weapons more discriminate and less indiscriminate. Given the fact that most people can’t hit shit with a handgun and yet the bullets from at least some handguns can still travel long distances and penetrate the walls of a home with enough energy to kill an innocent bystander sheltering inside, I’m loath to allow handguns. Their use in suicides is also very significant. The statistics are clear – if you have a handgun in the house, you are more likely to be injured or killed by gunfire than if you don’t. That’s pretty strong evidence that handguns are not currently effective personal defense at the population level. While future governments could decide that extremely skilled persons (much more skilled than the average police officer) are likely to be able to accurately use a handgun even in stressful moments when adrenaline is pumping and lives are at stake, and while they could choose to make exceptions for licensing such rare persons, handguns certainly aren’t effective personal defense in the current USA.
All I can say is, “Yuck”. I think our “justice” system is terribly unjust, but I don’t think that killing police officers is going to make it any better. And even worse, the existence of such weapons in private hands is what allows officers to shoot unarmed people on the flimsy excuse that they were desperately afraid that person just might maybe possibly have been carrying a weapon that they just might maybe possibly have been reaching toward, and therefore it’s perfectly reasonable and legal to kill that unarmed person.
You’re not clear in quoting which provision you’re against – the entire thing? Or solely the exception for law enforcement?
You have no responsibility to remember what I’ve said previously on a topic, but I will point out that I’ve previously discussed just exactly this kind of thing, recommending that no law enforcement officer be allowed to carry a gun on duty for their first 5 years of service, and that not all law enforcement officers should be permitted, much less required, to carry a firearm after gaining 5 years experience.
And even that policy was crafted assuming that the 2A was going to continue to exist. As more and more guns are removed from circulation, then fewer and fewer officers need to be armed. (That recommendation was also on the level of individual officers – I’m on the record in other places arguing against military equipment like armored vehicles being owned and used by law enforcement agencies.)
In other words, I argue for significant disarmament of cops right now, even before any guns are removed from the streets, and progressively greater disarmament over time as gun control does its work. The policy to which you’re objecting doesn’t address police armaments not because I’m opposed to eliminating or drastically changing police armaments, but because I was articulating my public gun control policy, which I saw as a separate (albeit related) issue to my law enforcement use-of-force and armament policies.
I understand you’re probably for faster disarmament of cops and retaining more firepower to be used against cops. Here I think we disagree, but I don’t think we disagree because of my limited knowledge about guns. This, I think, is simply a philosophical difference about how to approach these problems.
@CR:
Because in the law it’s a two step process. A legislative has to have the power to do something before it can go ahead and do it. If we simply enact gun control without passing an amendment allowing gun control legislation, SCOTUS will just throw it out again.
I am aiming at the real target, I just haven’t pulled the trigger yet because if you want to hit the target you have to aim first and THEN fire. There’s a metaphor in there somewhere.
It really won’t, CR. You can believe me or you can ask another lawyer or whatever, but the language in my proposed 28th A provides literally ZERO gun rights.
If a 29th amendment was passed after the 28th saying, “The 2nd Amendment is repealed” the existence of the 28th would provide no rights whatsoever.
They should care about you and they should care about the people killed and to the extent that they oppose gun control targeted at stopping suicides and murders because they like hunting I think they’re being both callous and foolish. I don’t think you have to care about them at all if you don’t want to, and if the 28th A ever came up for a ratification vote in your state, you’d be free to vote against it because it doesn’t go far enough.
I appreciate your righteous anger and find it valuable. I’d also love to have a genuine conversation about 2A repeal or a new amendment similar to my imaginary 28th or some other relevant discussion starter. If people ultimately choose to vote for full repeal, heck if that even ever comes up on the ballot, I’d vote for full repeal of the 2A even if I would be in a vanishingly small minority.
I think this hypothetical 28th is a good way to start that conversation, and I think that your take is an absolutely necessary and good contribution to that conversation.
Yes. However, we are actually very close, and if I finally drop my last little clinging to gun rights, I like where you would end up.
Sorry, hit send too early.
To Crip Dyke
Shotguns are better than handguns for certain kinds of scenarios, but it seems to me that your your proposal effectively does not recognize self defense rights outside of the home. Was that intentional?
And if that is your goal, I think the wording of the amendment would simply be easier and better if it was something like “The second amendment is repealed. The people have no constitutional right to own or possess weapons and other arms. The federal congress and the States have the authority to regulate possession, ownership, and carrying of any and all weapons for the public benefit.”
Why not that wording? I think it’s clearer. It might not have the same rhetorical power, but I think that rhetorical power might get in the way of your goals. If I were you, I’d just write it plainly: Ditch the second amendment entirely, and explicitly deny gun rights. So, if the congress and the States want to permit some limited gun rights for hunting and sport and self defense, great, but you want to make sure that this is no longer a constitutional issue, so why leave active text in the constitution which might muddy the waters? What if someone like me would say “but you cannot have effective self defense without handguns?”. You might disagree, but this is the sort of question that you want congress answering, not SCOTUS, and so just remove SCOTUS from the equation entirely by making any right to self defense with guns be entirely at the whim of congress.
PS:
Sorry, yes, just as it relates to law enforcement.
I meant it to this extent: I personally think that the second amendment is valuable only to the extent that it allows real personal self defense against criminals, and to the extent that it allows violent revolution which necessarily involves killing cops and soldiers in body armor. So, if I wanted to keep gun rights at all, and I’m not even sure that I did, then killing cops and soldiers is one of the two primary reasons why I would want to keep it.
Well, no. The real problem is that I don’t know exactly what limitations I want on shotguns, but there’s no articulated limit on use of shotguns for self-defense in my imaginary policy proposals and there’s nothing in the proposed 28A in the OP that limits rights of personal defense to the home.
Do I imagine that there might be social pressure not to walk around with a shotgun over your shoulder?
Yep. I think there’s that social pressure now, and I doubt it would change in an environment where carrying a handgun was prohibited. But that’s not the same as government banning the possession or use of shotguns for self-defense outside the home. I haven’t currently proposed banning the possession of shotguns outside the home, and I don’t think under the 2A I could, even if the 2A were limited by my proposed 28A. But I think whether or not I could do so would be “a mixed question of fact and law” (to use the jargon) and therefore would depend on outside objective circumstances. As long as lethal force continues to be used in crimes at a rate statistically relevant to individual persons (i.e. the risk of death or serious injury from such crime to the average person is at least a substantial fraction of the increased risk of death or serious injury over and above background rates when comparing all shotgun owners to all non-shotgun owners), then there are presumably some people for whom a firearm like a shotgun would be “necessary” for defense.
But I concede it’s at least theoretically possible that some future time would exist where the “shall not be guaranteed by this constitution further than is necessary for the defense of persons” could be interpreted to mean that there is no constitutional right to carry a shotgun off of your own property for the purposes of self-defense.
In fact, I concede that in a Star Trek/future-utopia type universe a court might rule that the 28thA means you have no constitutional right to a firearm for the purpose of self defense at all, even at home, because crime rates are so low that defense-via-firearm does not meet the standard of “necessary”.
However, I believe that the 2A, as currently interpreted, would protect some level of firearm possession outside the home for the purpose of self-defense and/or defense of other persons even after modified by my hypothetical 28A. And I think it would continue to protect some level of firearm possession outside the home for quite some time, since I don’t see violent crime becoming entirely negligible in the foreseeable future.
Also, just for clarity of my position (I do understand that we’re pretty close here), absolutely nothing in my proposed policies is about the USE of guns in self-defense. Rather, it drastically limits where most guns can be possessed or stored. If you’re at a licensed, regulated pistol-shooting target range and you check out your personal weapon from the gun locker, and then while the weapon is legally in that target-shooting space someone attacks you, go ahead, use whatever’s in your hand for your self-defense, even if that’s a handgun and even if you use it by shooting bullets and not just pistol-whipping the attacker.
(as a final nitpick, there are lots of ways to kill people, and I don’t believe that your “right to self defense” is not less just because you don’t possess a firearm – pick up the leg of a broken table and smack your attacker with it and you’re still within your rights. I’ll worry about “broken table leg control” when we start having more than a two suicide, accidental, or homicide (not self-defense) deaths per year as a result of their use. It’s true that my belief self-defense isn’t always relevant – read DC v Heller, for example – but I’m clarifying my beliefs, not the current law of the US or Canada.)
To Crip Dyke
Let me try it one more time. Maybe I’ll say it more clearly this time.
The careful control of dangerous weapons being necessary to the security of a free people, the right to bear arms shall not be guaranteed by this constitution further than is necessary for the defense of persons, hunting game for food, and participation in well-regulated sport that does not threaten life, health or property.
This seems to be protecting, or at least acknowledging and thereby not denying, a positive right of some sort of bearing guns for self defense, right? That’s what the text does, right? Even if the text does not explicitly affirm the right, by acknowledging the right and not explicitly denying it, it is effectively affirming the right. Right?
It seems that someone could raise a constitutional issue saying “carrying handguns is necessary for self defense”, and I think that argument would have some merit in court. I think that the simple factual matter regardign self defense utility of a pump action shotgun vs a simple semiauto handgun is immense in the cliche “home invasion” scenario. When you posted to CR previously, it seemed that you preemptively said that my interpretation is wrong, that this argument would not have merit in court and would be quickly dismissed. You are the expert, and I’m just an layman who does this for fun in their spare time, and so I grant you all of the respect and deference that is worth, but I don’t see it that way. I say again I don’t see the purpose of phrasing the amendment text like this. It still seems to me that someone could make this argument in court, and it still seems to me that SCOTUS would have to make some sort of analysis and decision based on efficacy, facts, etc. Right?
And you don’t mean to have SCOTUS making decisions of when having a gun is necessary for self defense, right? You mean for congress to be the sole arbiter of that, right?
From my completely non-expert position, to reach that goal, it still seems easiest and safest way to remove SCOTUS’s discretionary power entirely is by simply having an amendment that clearly says “the people do not have a right to possess weapons and other arms, and the federal congress and the States shall have the power to license, limit, and/or ban ownership, possession, and carrying of weapons and other arms for the public good”. Full stop. Congress and the States may grant a limited right to possess certain guns at their sole discretion, and if they do so then due process ala the 14th would come into play, but congress and the States could unilaterally revoke it too.
Sorry for just repeating myself.
Hunting is bullshit. Sport shooting, a bit less so but there are plenty of other sports; archery is more elegant, golf is a better display of wealth and privilege, and swordsmanship is a terrific workout. When there are mass shootings by horse-archers we can address those.
It ought to be obvious by now that guns don’t prevent tyranny. What prevents tyranny is governments with working controls to prevent partisan takeover and corruption.
Repeal the 2nd.
@Gerrard & Marcus:
I definitely support any effort to repeal the second.
True. But only if you mean the easiest and safest way to get the government to reach certain results after the passage of an amendment assuming we can actually pass the amendment in the first place.
I don’t actually think that passing an amendment like yours would be “easier” – but of course that’s a political judgement and far out of my realm of expertise. If someone came forward with evidence that it would be easier to pass your amendment than mine, I’d be on yours in a heartbeat. In fact, because I can simultaneously support two different amendments at the same time, I’d be happy to advocate both, only dumping one when it becomes legally necessary to support only one.
I’m really actually desperate to have people at CNN and MSNBC and the like give major coverage to the idea of a 2A repeal and/or an amendment to narrow 2A rights. Any discussion that leads to serious proposals with an actual chance to reduce the carnage would be welcomed by me, it doesn’t have to be centered around my 28A proposal or the specifics of my gun control ideas (half-baked as they may be). I just think it’s amazing that no nationally-relevant ANYTHING is actually sponsoring and covering any of this discussion. Why is my blog with 2 readers getting more discussion of the 2A than MSNBC with all its shows and blogs and comments and tweets?
It’s… disheartening.
No, this amendment clearly makes SCOTUS the arbiter of when having a gun is necessary for self defense, and I did write it that way on purpose. Maybe that’s my legal bias, but I don’t actually mind (in theory) having a supreme court in charge of determining the hard limits of governmental authority and having an elected legislative body then determine what to do with that authority. Unlimited legislative authority has a pretty bad history, and though the powers and interests of a country’s supreme court and the jurists who sit on it are inevitably intertwined to some degree with the powers and interests of a country’s legislators, having witnessed how off the rails SCOTUS gets and how off the rails the US congress gets, I trust SCOTUS more.
This is a relative judgement, mind you, and I have my biases being inside the system and having made comparative constitutional law my area of study, but it’s where I stand, for better or worse.
About the specific language of the hypothetical 28A:
Yes. I agree. But it’s important that it doesn’t create that right, because if we passed a repeal of the 2A, I don’t think the court could seriously consider the existence of the 28A to independently establish a similar right.
For instance, imagine that the 6th amendment is repealed. Currently “due process” is mentioned in the 14th amendment and the courts have previously held that part of “due process” is the right to a speedy trial and an impartial jury. The 14th, among its many implications, recognizes and validates the idea that there are appropriate ways that the government can use to determine guilt or inflict punishment or take property, and there are inappropriate ways to do that. However, if society went through the act of actually repealing the 6th, no court would seriously consider that “due process” required a speedy trial or an impartial jury. The entire point of repealing the 6th is to remove those requirements, so mere “recognition” of them by other amendments (like the 14th) that were passed during the time when the 6th was in effect cannot be used to defeat the clear intent of repealing the 6th.
There would still be some process that was due, but the process constitutionally due to each defendant could not be required to include a speedy trial or an impartial jury.
This is a question of interpretation that comes up in all law, not just constitutional law, quite frequently. When determining what is “negligent”, for instance, the law often (though not always) rebuttable presumes that any illegal conduct is per se negligent. (There are later considerations about whether the negligence is relevant to the mishap that actually caused the damages, but the rebuttable presumption is still of negligence per se.) But the regulations on an industry can and do change all the time.
Now imagine a law that has several functions related to negligence cases, but includes one provision clearly establishing minimum or maximum damages when an entity “illegally stores vibranium” and that vibranium later is involved in an accident that causes damages to the plaintiff. Imagine that this law was passed at a time when there actually existed laws on how vibranium can and cannot be stored.
Ready?
Now imagine that a later congress finds vibranium safe enough that they repeal the law establishing when and how storage of vibranium is illegal, but for whatever reason they do not go in and repeal the language on damages in negligence cases.
Could a regulatory body still fine someone who stores vibranium because if you look at that negligence provision it implies that there must be something illegal about storing vibranium?
The answer, fortunately, is definitely no in Canada, and I’m pretty darn sure that the answer is also no in the US. There are reasons for this, having to do with fundamentals of legal interpretation, but without going into them, I think you can see that it’s both reasonable and good that one law that recognizes another existing law strengthens the ability of a court to say, Yes, that second law definitely does exist. But it’s also reasonable and good that the first law’s reference to the second doesn’t keep the second alive after it’s been repealed.
Usually – including in this case – things are a bit more subtle. People aren’t arguing that the 2nd amendment doesn’t exist, but people do argue all the time about whether or not a general “right to bear arms” includes some specific right, like the right for 18 year olds to bring their legally-owned firearm to class with them on the grounds of a government-owned and -run public school.
So the real risk isn’t that, post 2A appeal, my 28A would keep gun rights alive. The real risk is that by specifying things like “hunting for food” and “sports” that it would imply that among the rights included in the 2A are rights to use firearms for these purposes.
The legal risk that I see, then, is that someone might some day use such implicit recognition arguments not to expand or defend the right to own and carry guns, but rather might use it to argue that, for instance, a state cannot entirely ban hunting for food within its borders. (Likewise that a state might be barred from eliminating all sport-shooting clubs within its borders.)
That is a risk (although I personally don’t give a fuck if people have private sport-shooting ranges and if it becomes illegal for a state to act to close all such gun clubs, I’d happily trade that for the vast increase in public safety we would get), and if this proposed 28A were to get serious play in congress, I’d have to think about how I feel about the potential necessity of changing the language or, potentially, adding a “Clause 2” specifying something like,
But, yes. It’s possible to impute rights indirectly – that’s part of the point of the 9th and 10th amendments after all. We can and should be careful in our final language not to create new problems as we’re fixing old ones.
Correction. I don’t think my version would be easier to pass. I meant that I think that it’s more assured that mine would reach the political goal. Whereas I have serious concerns that someone might mount a successful challenge to carry concealed handguns under your text because of the “self defense” right clause in your text.
I think my version would be about as hard to pass as your version.
I don’t know why you feel that you could pass this. I hate it break it to you, but both (this and a straightforward repeal of the 2A) are very unlikely. So … do you have a better reason why you’re not proposing a repeal of the 2A? Or is that it?
I’ll accept that this kind of incrementalism may work in certain cases, but the fact that the amendment process is so difficult suggests that it’s better not to make it necessary to go through that too many times, in order to accomplish what we actually wanted in the first place. In cases like this, it may very well be that one baby step, followed by another and another, will be harder than a normal-sized step (and more time-consuming, which definitely matters to the people getting shot in the meantime).
Maybe that’s a little counterintuitive, maybe it’s not even right…. but I will at least say that I don’t just take it for granted that this is the safer or easier approach, politically speaking.
At some point, this kind of incrementalism becomes something like abolishing slavery only for black men after they’ve turned 47. (And maybe with that will come more criteria which need to be satisified, like being unincarcerated, well-educated, someone with a particular set of occupational skills, etc.) That sort of thing might be more supported by certain types of people, who think it doesn’t conflict too much with their perceived (if not actual) self-interest. But if something like that were going into the constitution, why not do it right and abolish it for everyone? Is your answer (in the guns case) really supposed to be “I just don’t think we can”?
Getting back to your claim above…. The text does plainly say that such a right will not be guaranteed “further than is necessary.” A minimum is created, with or without the 2A in place, since I’m reading your amendment to say that it’s necessary for “the defense of persons, hunting game for food, and participation in well-regulated sport that does not threaten life, health or property.” Simply no guarantees beyond that, nothing “further than” that – but that’s not nothing.
If there is some lawyerly trick at work which invalidates what I just said, then I don’t see it. And given that, I don’t think yours is a very stable or safe interpretation of the text. We could give it a few decades and see what Republicans make of it, but I’m already thinking the problematic bits aren’t hard to spot. Do with that what you will, if you’re serious about it.
(Also, since the text doesn’t indicate otherwise, I take it that the guarantee would be to a natural person, which is the sort of thing that has rights if anything does … unlike states, corporations or whatever other entities lawyers may dream up. I don’t think this point is at issue, but I will lay it out there anyway.)
What specifically makes you think it’s true that the legislature isn’t legally allowed to enact gun control legislation? I know that the current congress won’t do it. And I know the current SCOTUS is not on our side. Where is this supposed fact clearly established, that they literally can’t enact gun control legislation? Or in what sense is it supposed to be true that the constitution not already empower them to do so? How did it come about that we actually do have gun control laws (albeit not enough)?
The second amendment as interpreted by SCOTUS.
The second amendment. Really. Just like the 1st amendment means that they can’t establish a national religion.
Weirdly, although state GC laws came about through what is known as “devolvement of the police power” (essentially the background power to have legislation that constrains the behavior of people within a jurisdiction, which was deemed to be implied by the explicit grant of power to states to pass laws at all), the federal power to enact GC laws was essentially zero until Wickard, which ruled that a person who grows wheat for their own consumption is engaging in interstate commerce because if they HADN’T grown their own wheat, they would have had to buy wheat, and if they had bought wheat, they would have been participating in interstate commerce, and while federal regulation can’t reach as far as to regulate simply choosing not to buy something, it can regulate the taking of a positive act (growing your own wheat) that substantially affects interstate commerce.
And if you can figure out how that decision on wheat permits the federal government to restrict the private possession of a gun by person who does not cross a state line, you’re smarter than me. But oh well. The commerce clause has been used to justify lots of good legislation as well, and at this point fighting against that interpretation of the commerce clause would do vastly more harm than good.
Nope. No better reason. Maybe I’m wrong, but that’s what having a conversation means, among other things – an opportunity to find out that one is wrong.
Let me distill that into two brief statements, concerning the authority of Congress to write gun control laws:
“No, they can’t,” according to the current SCOTUS interpretation of the 2A.
“Yes, they can,” according to an interpretation of the commerce clause which in your opinion we should use.
You don’t have to say that you’re pleased as punch with this contradiction (you’re presumably not), but you don’t get to claim that all we’ve got is the statement “No, they can’t.” Because that’s not true. I think we should get rid of the first offender, while I’m not sure enough about the other to offer a very informed opinion. I’ll leave that thought for another time.
Anyway, with only the first statement out of our way, we’ve killed two birds with one stone (or a bullet … it could be a bullet), since we have both that contradiction to eliminate and that absurd 2A interpretation to correct. Maybe some very weird and unscholarly constitutional scholars would disagree, but it is not good practice to make thing impossible to interpret consistently.
Opening a can of worms, but
consciousness razor,
Once I understand the legislative and cultural history, and once I understood the archaic meanings, the second amendment text has never bothered me. I seriously don’t understand how anyone can be learned on this topic and disagree, except via fallacious motivated reasoning and lying to oneself. I don’t see any problem with the second amendment text. Not just that, but I want to make a stronger statement. The second amendment text flows quite naturally to me, and makes perfect sense to me, in its own peculiar, almost anarchic, flavor. If I were to translate it to today’s language, it simply says: “because a national population that is well armed, trained, equipped, and disciplined in war is a requirement to preventing tyranny and invasion, the individual right of every person (white male adult) to so equip themselves shall not be infringed, and nor shall their rights to carry such weapons be (unduly) infringed”.
That translation of the text makes perfect sense to me. I don’t see any internal contradictions. I admit that it’s grammatical structure is unusual, but only if you’re ignorant of history. That grammatical structure, and the including of a justification in the amendment text itself, was commonplace among state constitutions at the time. See:
“The Commonplace Second Amendment”. By Prof. Eugene Volokh, from UCLA Law School. (73 NYU L. Rev. 793 (1998)). Link: http://www2.law.ucla.edu/volokh/common.htm
That is the only reasonable modern translation of the text, and that translation is well supported by voluminous writings, including many which I cite here:
https://docs.google.com/document/d/1Ak6bx8jyDxIlsLuFHHevw-4RQ7R5vJb15RtTNG5d79w/edit
If you do take the time to read those roughly 20 pages of citations and arguments, which I’m not asking or expecting you to do, I would ask: “How could you still possibly disagree?”. Again, I just don’t understand how anyone honest and informed could.
PS: Given my understanding of the meaning of the second amendment, I think that there’s a lot of room to maneuver, especially in light of the power of the federal congress to discipline and train the militia which was not overturned by the second amendment. The punchline is that I think it would totally be constitutional to require a lengthy training class, perhaps almost like a military Basic training, in order to receive a gun owner’s license, and make gun ownership illegal without such a thing. Then, revoke the license for any serious gun infraction, and require yearly refresher courses or something. IMO, this sort of licensing scheme is just a small step from the historical practice of the second federal militia act of 1792 to that, and it’s an easy step to make IMO based on other jurisprudence, such as the constitutionality of a similar licensing scheme for driving a car on a public road, which is also a constitutionally protected right (see Bell v Burson). In other words, the federal congress still has the authority to require mandatory military training of every person, e.g. of the (whole) militia, and they don’t have a legal right to refuse, but the loophole that I would try to drive a truck through is to say that you can opt out of your mandatory militia duty, but then you don’t get to be a recognized member of the militia, and also no gun rights. Alternatively, you could phrase it as some sort of automatic administration punishment – fail to attend your mandatory militia duty, and the criminal sanction is your (temporary) loss of gun rights until such time that you attend.
I’m not saying you’re wrong about other things, but IMO you’re wrong about Bell v. Burson.
The clear text of that case says that driving a car on a public road is NOT a right and that the state (Georgia, wasn’t it?) could have engaged in the behavior that violated plaintiff’s rights*1 in Bell had it done so before issuing a license.
Despite the fact that driving a car on the public roadways is NOT a right, however, the court held that once a license had been issued (and in that case it had) that license was the property of the recipient. Since being licensed to drive has economic advantages, the license itself thus has economic value. Removing the license without a hearing thus was a taking of money (property) without a hearing, which SCOTUS held couldn’t be done.
So the case really isn’t about the right to drive. The case is about whether or not you get a hearing before a state takes your property, and, if so, does “property” for this purpose include a valid driver’s license, legally issued and legally owned. The crucial test in that case used to determine whether “thing X” counted as property (there are other potential tests) was whether the thing (the driver’s license) had economic value.
So the precedent is important, because many licenses (business licenses come easily to mind) issue by a state may have economic value. In fact, probably all of them do, even if the economic value is small. The fact that the license was non-transferrable (the license couldn’t be sold from person to person) was not held to be material, because activities like getting a job delivering pizza requires a driver’s license and thus the license could still have value to the owner even without being severable (salable).
The precedent is not important, however, in establishing a right to drive on the roads. It doesn’t do that.
Again, I’m not saying you’re wrong about, say, the federal government retaining the ability to require militia service and attend trainings related to that militia service (it certainly does – otherwise the draft would have been ultra vires and unconstitutional). But that one specific case, Bell v Burson, doesn’t actually say what you think it does (or appear to think it does).
Feel free to read it again yourself. Although obviously there’s going to be some legal jargon in there which might complicate or limit your ability to understand all of the case, IIRC the most pertinent details are in fairly plain language.
======
*1: The behavior in question was to revoke the license without a hearing and requiring a liability deposit with the state. The state engaged in that behavior after the plaintiff had been involved in an accident which litigation alleged was the plaintiff’s fault. Revoking the license without a hearing created a procedural due process violation of the 14thA.
@GerrardOfTitanServer
This is exactly what I mean, because:
Firstly the long-range attacker has all the advangages, the defender has all the disadvangages, one of them being that they have to first find out where the attack comes from at all – and by that time it might be late. Long range defense with a gun is unrealistic dream of gun fondlers that nearly never plays out in reality like they imagine it. The difficulty of long-range defense rises strongly with the distance, thus the best and indeed only really viable self-defense in that situation is escape/cover. If that is not possible, you are dead.
And secondly I am talking about weapons for personal defense in a situation when the long-range weapons are mostly out of the equation (legally), which is the case of my country.
It is possible because US has idiotic gun laws. In my country, most civilian attacks happen at close range.
Because close-range self defence will be always relevant no matter what laws are passed and what weapons are available. Even in well-functioning societies it will hapen.
Pepper sprays, knives, knuckle-dusters etc. can be used by a thug to rob someone, but they also can be used by a weak person to repel an attack by a thug. There is still a disparity of advantages, but it is nowhere near as big as in the case of long-range attacks.
Running away is the best defense in all scenarios of course, but there are situations when that is not possible.
It’s both confusing and hubristic.
You want to tempt the wrath of the whatever from high atop the thing?
To Crip Dyke
Are we reading the same opinion?
https://supreme.justia.com/cases/federal/us/402/535/#tab-opinion
It seems pretty clear to me: SCOTUS doesn’t care whether you call it a right or a privilege – due process applies. Now, I could be clearer, and I was choosing particular language to make a rhetorical point, which I think is acceptable given the context that I said the original statement in. If I wanted to be more complete, I would say that SCOTUS recognizes different tiers of rights, which different balancing standards and different tests. However, this opinion reminds us that there is no such thing as a privilege that could survive constitutional scrutiny in the sense that the privilege is granted and/or denied arbitrarily. The notion that the government can permit some people to do some things but not others without any basis whatsoever in the public good or other law is itself highly offensive to the values of freedom, civil rights, self determination, etc.
It is in that sense that one of my pet peeves is whenever someone says “driving is not a right; it’s a privilege”. The response should be “no, it is a right. It’s a licensed right, but the granting and denial of that right must be made according to some arguments relating to the public good, and due process must apply to the granting of the license and to any denial of it or later revocation of it”.
Again, I’ll say that I should find a better pithy summary to avoid these miscommunications in the future.
What absolutely horrendous advice. In the case of a mugging where the mugger has a weapon, by far your best method of staying alive is to not panic, don’t take sudden actions, and give him what he wants, which is probably your wallet, and often your shoes too. Running away is a great way to get stabbed / shot.
Similarly, you seem to be advising people to get into a knifefight. What an absolutely horrible idea. Are you one of those fools who listen to fake martial artists who tell you that you can win a knife fight? That’s all lies. No one wins in a knife fight. In a knife fight, both sides get stabbed. I don’t care how good you are and how incompetent the opponent is, you are very likely to get seriously stabbed. Any real martial artist will tell you this. Anyone who says otherwise is a fraud.
If the thug is threatening you to get your wallet, then give them your wallet.
If the thug is flashing their knife at you, that means that they’re posturing. Often you can get out without violence by simply backing down and leaving.
If the thug means to do you serious harm, you are not going to see them coming. A real thug who intends to attack you, to injure you – they will not flash their knife in their face before attacking. That’s not how real attacks happen. You won’t see the thug coming at all. The thug will come up from behind and surprise you, and the “warning” that you will have about the attack is the feeling of being stabbed repeatedly. Go online and look at real knife attack videos, including prison knife attacks, and knife attacks on the street.
I particularly want to call out “knuckle dusters”. Seriously? What are you? Some bad LARPer who never engaged in a proper simulated combat? You want to take knuckle dusters against someone with a knife? Prepare to die. You want to take knuckle dusters against someone much bigger than you? You’re probably going to lose. You want to take knuckle dusters against someone who knows how to fight when you haven’t taken any martial arts training (and by that I mean real fighting training, as opposed to most traditional martial arts trainers), you are going to lose. Let me guess – you also think that nunchunks are a good weapon. ~sigh. (Reality check on nunchucks: You’re much better off with a stick compared to nunchucks. Nunchucks are almost worse than having nothing at all. Whereas, a quarterstaff – that’s an excellent weapon, relatively speaking.)
The problem is that most of the “self defense” industry are frauds, and their advice will get you killed. Again, the best “self defense” is awareness of your surroundings to avoid the problem in the first place. Then, if you find yourself in a situation where you’re being mugged, then politely and slowly hand your stuff over to the other person. You cannot learn how to fight from videos online. You cannot learn how to fight from a few hours at the dojo. You cannot learn how to fight at a dojo that doesn’t do sparring. Like any skill, it takes hundreds or thousands of hours of hands-on practice in order to get good at something, and anyone trying to sell you anything else is a fraud. And worst of all, you are not going to win in a hand-to-hand fight when the other person has a knife.
In summary, your knowledge of real violence is farcical. Trust me, and shut up, and learn. Stop talking out of your ass.
PS: To Crip Dyke. Reading what you wrote again, it seems that you’re saying that the court decision would permit a regulatory scheme of completely arbitrary granting of drivers licenses, eg the government agent doesn’t like the cut of your jib, and for that express reason, says that they will not grant a driver’s license. I think your position is patently absurd – especially in light of the bit that I quoted above from the opinion. It’s a mere obvious baby step to apply the same principle to the granting of the driver’s license in the first place.
@GerrardOfTitanServer
You are arguing against things that I have never said and elaborating my few sentences into whole paragraphs containing advice that I do not give. I do not consider that to be honest.
The only advice I give is to get away when possible. If the opponent wants your possessions, then give them to hem is also better than to get involved in a fight. Fighting should be avoided, with that I agree completely and nowhere, absolutely nowhere, am I saying anything else.
But I have been subjected to violence in situations where I could not avoid it by anything that I did, because hurting me was the only purpose of the attack. Sometimes I have also succesfully run away. And twice in a situation where running away was not possible, I have defended myself (albeit without a weapon, since I had none) to deflect the attack – and then get away as far and as quickly as possible.
correction “twice in a situation where running away way initally not possible”
To Charly
Acceptable. I probably read too much into what you wrote. I would still say that awareness and avoidance are the first tools to self defense. Then fleeing. However, fleeing sometimes depends on being faster than your attacker, and it’s not a one size fits all answer. This is often overlooked by advocates of “running”
However, I still must disparage severely your choice of weapons and tactics that you seem to imply, and I still must emphasize that there is no winning a hand to hand fight against knife user with your own knife, or pepper spray, or knuckle dusters, etc. The first rule of fighting someone with a knife – don’t. Avoid it at all costs. If you think that the knife fight cannot be avoided then you’re probably not thinking hard enough. Scenarios where you can see the knife attack coming but cannot find any other way out except to fight are basically fantasies dreamed up by people who want to get into a fight, in much the same way that gun owners focus on near mythical scenarios where they can use a gun to defend themselves. In the incredibly rare and unusual scenario where someone is attacking you with a knife, and you can see the attack coming, and you cannot talk your way out or run, then your choice of weapons are still miserable. You need something with reach – to keep that knife away from your body, or something that can defend against the knife attacks, again to keep the knife away from your body, and the weapons that you list are borderline useless in that. Literally a chair or a stick would be miles better.
@GerrardOfTitanServer
When I talk about using weapons in self defense, I am thinking of them as something to equalize the chances. If both sides have the same weapon, then that is moot.
For example if someone goes at you with bare fists intent to smash your head in, then having some small hand-weapon on you might be a way to even the chances a bit. If someone goes at you with a knife, then you need something with longer reach – an umbrella, a walking stick (or a taser) ( but still, if someone goes at you with a knife intent on hurting you, your chances are still better with something in hand than nothing at all).
I agree with you actually and I would sum my thoughts thus:
Firstly, awareness, avoidance and de-escalation should be preferred. I think it was Gichin Funakushi who said that the best is not to win hunderd fights, but to avoid fighting at altogether.
Secondly, whatever weapon someone chooses to carry (if any), they should train with it, extensively. Because any weapon that you do not know how to use effectively belongs to your opponent.
Thirdly, no matter how one is (or thinks themself to be) proficient with whatever, they stil should always try avoidance and de-escalation first, because you never know what your opponents knows and what training they have. This was constantly hammered into us in Aikido training and I have seen how one ends when not following this advice (one guy thought he is invincible when he got his first dan and provoked a pub fight – he ended up with cracked ribs and both eyes blackened, it was an eye opening experience – twenty years ago – it made me slowly realize that Aikido is an excellent workout, but barring the mythology essentialy useless martial art).
Fourthly there is no single problematic in the whole universe with “one size fits all” answer.
And lastly, I do not recommend to actually carry a weapon for self defense, I only think it should not be completely illegal to do so and I think there are weapons that have more use for such self-defense than they have for offense. But in practical terms, carrying a weapon can give one a false sense of safety and confidence and subsequently not use or seek all options for de-escalation first. I do not carry any weapon on me for about fiften years by now and I never really needed one either (I do carry a multitool knife, but that would be nearly useless as a weapon so I do not consider it to be one – but it is considered to be one by law in Germany, because ???reasons???).
PS: I was also particularly annoyed at how you downplayed or dismissed the absolutely huge advantage that raw strength has in a hand to hand fight. Weapons can mitigate or remove this advantage, but not really pepper sprays and knuckle-dusters. Giving that sort of advice to a weak person is liable to get them injured or killed. This is immensely true for any suggestion to go voluntarily into a knifefight.
Strength matters a lot in a fight, and advising a weak person to rely on pepper spray or knuckle dusters is just really bad advice. It’s basically a lie that will put them in the wrong state of mind to do the best self defense that they can. It’s a lie that the weak person has a good chance at beating the stronger person in a hand to hand fight, even with that advantage. Even if they were trained for decades and we’re the best in their fighting skill weight class, size matters so much in a fight, and it’s a dangerous lie to believe otherwise. Handheld weapons and martial arts are not magic. The much weaker guy is just going to lose if it comes to real fighting.
PS: What can let the much weaker guy win the fight? A gun. Swords too if you’re properly trained, and it’s against someone who doesn’t have a gun. Of course, the odds that you both have a sword on you, and you’re probably trained in it, is next to nil, which is the default answer is a gun. Even then, as I’ve been trying to emphasize, in almost all cases, if you can see the attack coming, then they are not out to kill you, and are there for your wallet or something else (sexual assault).
So, what should a woman without a gun do against a bigger stronger attacker? I don’t know. There are no good options. Avoid the situation in the first place. After that, flee if you can. After that, try to fight, but at that point it’s already over if he’s much bigger than you. Adding a knife is a great way to die, but hey, maybe that’s a risk you’re willing to take, and I don’t know what I would do. But don’t tell women the lie that knuckle dusters can let you beat a stronger man, or that pepper spray is useful except as a one time trick to buy a few seconds of running (and you better hope that you’re a faster runner), and don’t tell women the lie that watching a self defense video or doing a few hours of self defense class will help, because it’s just not true, and it will cause women to make bad decisions because what they’ve been told is a lie.
This reminds me of one of my favorite martial arts trainers on YouTube. In one video, he says that new students keep asking “how do I get out of a (rear naked) chokehold?”. The practical answer: don’t get into that situation in the first place. By the time that you made it into that situation, you have already lost every major battle up to that point. It’s almost impossible to get out when the choke is already set properly, and instead of wasting time training on the almost impossible task of escaping from the choke, instead, spend your time training to not get in the situation I the first place.
For the same reason, it really pisses me off whenever I see someone advocating magic in fights under the guise of self defense. No, knuckle dusters will not allow you to beat a much stronger opponent. Sure, it might help, and it’s better than nothing, but you should be spending your time avoiding getting in the no-win situation compared to what to do once you’re in the no-win situation. And because you’re likely not a trained fighter who has spend hundreds or thousands of hours at the gym, lifting weights, sparring, etc, don’t pretend that you know how to fight, because you don’t. If you are a smaller, weaker person, then that means you are going to lose Ina fight against a stronger person. You could change that a little by becoming a trained fighter, but as my favorite YouTube guy says, that is a bad investment of time. The odds that you’re going to be attacked are so low, compared to the massive time investment that you would have to make to be a good fighter, and even then there are limits on how much stronger you can get by lifting weights, and there are limits to how much technique can compensate for lack of strength.
And again, the one exception is the gun. The gun is the great equalizer. Requires next to no training to use properly, relatively speaking, and it works no matter how weak you are and how strong your opponent is, within some extreme limits. But if don’t have a gun, and if you’re weak, then accept that you’re going to lose a fight, and make plans that avoiding getting in the fight that you will lose.
Aikido? Did you do regular sparring? Going to assume no. This is one of the things that I alluded to above. Too many people wrongly believe that traditional martial arts are magic. They’re not. Technique is the efficient application of strength, but you still need that strength, and strength and stamina and athleticism matter a whole hell of a lot in a fight. If you do not do regular sparring, then your martial arts knowledge is basically useless in a real fight.
That he got into a barfight completely unprepared is perfect for my point as well.
To quote my favorite YouTube guy again: it’s often said that everyone has a plan until they get punched in the face. He says: no. It’s only after you get punched in the face that you start to understand what a real fight is like, and it’s only then that you can really start planning, aka bring effective in a fight.
For everyone else consider this truth: Most traditional martial artists could not fight their way out of a wet paper bag. The Aikido friend is one example. Boxers tend to be much better fighters than most traditional martial artists, and especially those traditional martial artists who dont regularly spar. Boxing teaches how to get hit in the face, but also distance, timing, feints footwork, etc, which is crucial to real effectiveness in a standing fight, and it provides a great foundation for other martial arts.
And again, I must emphasize that like 99% of all women’s self defense videos are completely fraudulent.
If it seems that I am downplaying or dismissing the advantages of raw strenght, then I apologize for poor writing, that was never my intention.
I’m sorry too. I’m just ranting now. Let peeves triggered. I’ll stop.
GerrardOfTitanServer, #33:
I think you might have misunderstood my comment #32. The contradiction I referred to there was not internal to the 2A, but to the interpretation (according to CD) of the entire Constitution including its amendments: it says both “yes” and “no” to the same question, which is a logical no-no. And we cannot logically do anything consistent with that, because of course it is inconsistent. That’s a dilemma for anybody, no matter what they think about the contents of the 2A, gun rights, or what have you.
I’m fine with your translation of the 2A. What I think is absurd is the idea that this right would be unduly infringed, if there were any gun control measures whatsoever. That is not an implication forced on us by the 2A itself (or your more modern rendition of it).
The justification for it (whatever is actually “necessary for the security of a free State”) provides a coherent way of deciding whether a particular gun control measure does (relevantly and) unduly infringe upon our ability to secure our state. That is precisely why (according to the text) we are supposed to recognize a “right of the people to keep and bear Arms.”
It is left somewhat vague — and thus left to our best judgement, given new circumstances that may arise over the years or centuries, etc. — which exact infringements would count and which would not, but that distinction is at any rate not lacking from the text altogether. If there were no such justification given, then it would not be obvious (from the text) that any infringements may be duly enforced. But we don’t have a text that provides no such justification, so we don’t have to worry about what to do with such a hypothetical amendment that says something else. (I would say “scrap it,” because that is irrational by definition, as it would provide literally no reason why we should ever have such a thing enshrined in the constitution.)
I’ll remind you that most people tend to take it for granted that prisoners can’t bear arms, for example, because in such circumstances, the security of the state itself depends (ironically enough) on infringing a right for those people to bear arms, but of course only to the extent necessary. As you know, prisoners also aren’t free to go wherever they please, like other people are, nor can they do a lot of other perfectly ordinary things.
Don’t get me wrong: I think we should be limiting the rights/freedoms of prisoners much less than we do in our current justice system (and previously it was if anything worse). However, the point here is that we do actually limit a person’s ability to bear arms in certain cases, for reasons which are often fairly obvious and defensible. And the text of the 2A supports that, if one isn’t reading it with a gun lobbyist’s eyes. What doesn’t support it is our current political establishment (in all three branches), which has been hostile to pretty much anything that resembles rationality. So there is that.
To consciousness razor says
Sorry, and thanks for that post. I think I agree with most of that, and maybe all of it.
Sorry, a more detailed response. I think I agree with very little, even though I want to.
I thought you were being cute / sarcastic before, now it seems like you’re really advancing this argument in earnest. What? This is no more or less true than “commerce clause + first amendment”, or “commerce clause + most rights”. That’s why you do have to employ a slight amount of D&D ruleslawyering tactics when interpreting these things. In particular, you need to invoke the unwritten rule that says “later amendments overrule previous amendments and unamended constitutional text”. There isn’t a real problem here.
I’m sorry, no. The justification clause is mostly just rhetorical flourish. It should not be interpreted as a limiter of the right in any meaningful way. It’s not completely useless legally, but it’s close to it. You should really read the Volokh paper to see other examples of this grammatical construction in State constitutions of the time. Once you see that, my point here becomes quite obviously true.
“The Commonplace Second Amendment”. By Prof. Eugene Volokh, from UCLA Law School. (73 NYU L. Rev. 793 (1998)). Link: http://www2.law.ucla.edu/volokh/common.htm
This sounds very much like the interest balancing approach suggested by Stevens or Breyer in their dissent in DC vs Heller. It was bullshit then, and it’s bullshit now. This sort of broad “interest balancing” approach would be tantamount to writing the amendment out of existence. The whole point of an amendment that grants a right is to stake out an interest balancing position. It is saying that this right shall enjoy special status in any interest balancing discussion. It doesn’t trump all other considerations. For example, see strict scrutiny and the other levels of scrutiny for court review of other rights.
In other words, an amendment that protects a right subject to the opinion of later legislature’s or later court’s opinion on whether the right is really worth defending – such a thing is no rights guarantee at all. It would not be worth the paper that it was written on. To write down a right as an amendment is to take certain policy choices off the table from the legislature and the courts (barring a new amendment).
I hope you would not suggest a similar standard for free speech, or right to jury trial, or any other civil right explicitly guaranteed by the bill of rights. And regarding your next sentence which makes it clear why this is a special exception:
Again, please read the Volokh paper.
If my crippled and completely-untrained ass can defend myself with nothing more than my own two hands — and I have done, thanks — there’s no reason anyone “needs” a gun for “defense”.
GerrardOfTitanServer:
I don’t see anything from you or your link which makes contact with my argument and threatens it. Don’t just assert that I’m wrong and you’re right. Point out where I’ve made a mistake and why. Or we can’t have a reasonable discussion.
Here’s a taste of Volokh (with my notes and formatting for clarity):
{1} Thus, one can imagine that the purpose behind this law is based on a false premise or bad reasoning; and if in fact that is the case, we should therefore not keep it in the books. We cannot assume (whether we’re talking about the law or anything else) that authors must be infallible. We aren’t allowed an assumption that they only ever write good laws or the very best laws, by all of the best legislators, in this the best of all possible worlds. That would be extremely silly.
{2} Yes, it does indeed ban them all, and we know this because it says “No such laws, therefore, should be made….” For that very reason, it may be that the law needs to be revised or removed, although Volokh doesn’t really come to grips with the fact that we have this option.
{3} No. It’s not implied (by claims like mine) that they ask courts to do “whatever the judges think fits the purpose.” The purpose, or justification, refers in this context to something like supporting or enabling the security of a free state in the 2A case. However, the 2A also says that people should have access to guns. That is what the text itself has indicated (not whatever judges may think) about what fits with the stated purpose and what does not.
Note that there may be many other laws, as the author also mentions, which are written to serve the same or similar purposes. Guaranteeing freedom of speech, for example, may also serve the purpose of providing “security” (in some sense or in a somewhat indirect way) to a free state. This is because it’s not logically necessary that one and only one thing in the whole wide world could (for example) “secure a free state,” nor is it necessary for any of our laws to suggest otherwise. (It would be pointless if they did, because it’s simply false.) So we cannot conclude, from the fact that there are multiple laws of this kind, that this must mean such phrases/clauses are just filler or empty verbiage, that they are ignorable or inoperative or what have you. There can just be many things that we need to do, to that end, and we can write them down into multiple laws if need be.
{4} This is just silly. If it’s not a deliberate strawman of the position he’s opposing (a position supposedly like mine), it may just be a bad misunderstanding of it … but it’s pretty incredible. As I said in {3} above, there is a “constraint” of this sort provided by the law itself: for the 2A it is about allowing people to keep and bear arms. That is not even remotely like giving them “complete discretion to do justice any way they think best” (which could hardly be a more far-reaching statement), or discretion to do anything whatsoever that they believe would be consistent with the purpose section of the text. Instead, it says that these judges should (pursuant to that purpose) allow individuals to have guns. It doesn’t give them discretion to make up all sorts of other laws purporting to secure a free state; but that this particular one (allowing people to have guns) may, in some way or another and within reason, be used for that purpose.
{5} Yes they did. But that does not imply that we should carry it out to an unreasonable extent, or do so in ways which go far beyond the scope of the law (including its purpose) that we actually have written down. There may nonetheless be reasonable limits to rights which are granted and so forth; and we need not be totally unthinking when we ask what a law says, what it entails, whether it applies in this situation or that one, etc.
That’s one of the main jobs for the courts of course. And a statement of purpose or justification contained in a law (if one is offered) can act as a very useful guide in that sense, to help us understand if/when this law should or should not apply, what its limitations may be, and so forth. It need not be just an empty rhetorical flourish or a piece of verbal junk to be ignored. Sure, that is sometimes all they are, because legislators aren’t always so careful or coherent when writing legislation.
However, I would say that generally we are better off not ignoring them. If we’re just speaking in broad generalities (as we have been), I think Volokh loses that argument. And the specific case regarding the 2A isn’t any better, because he doesn’t offer anything along those lines which would suggest it should be interpreted his way (rather than my way or perhaps other ways).
Maybe an analogy would be helpful. For empirical questions in the sciences or elsewhere, you don’t just toss out data whenever you like. (Suppose this is like part of the text that you think is unoperative or unimportant.) You need a good reason to filter such things out (or to disregard them entirely) in your analysis of all available evidence. There may be a good reason for doing that sometimes. But then you take on the burden of giving a sound argument explaining why that’s appropriate in this specific case. You can’t just say you felt like it, that you’re just lazy or sloppy or frustrated, that they’re not paying you enough to go to all of this trouble, etc. – many excuses simply will not suffice, as you can imagine. If you do need one, then it had better be a good one, or else we won’t be able to take your conclusions as seriously as you may like. It’s pretty much the same deal here, and I what don’t see is a good one.
Of course. I and Volokh have put forward no argument that bad laws can and should be changed, and we have not our forward any argument that the second amendment is not a bad law. However, a change to the Constitution and amendments must itself happen by amendment, and not by judicial fiat.
I don’t think it’s a strawman. I see lots of people making arguments like this all the time. Not necessarily scholars, but people.
In the context of the role of a judge, disagreed in the strongest possible terms. I agree entirely with Volokh on this one.
So, now that you read it, would you be cool with a state judge overturning the protection that trials of fact must happen in the country where the offense occurred because the guarantee no longer serves the stated purpose in any way? That other example has a crystal clear answer to me: No. It is completely unreasonable to interpret that rights guarantee as being subject to a judge’s future determination whether guaranteeing the right sufficiently serves the stated purpose. That move from a judge is completely unacceptable for all of the reasons that Volokh wrote.
Thanks at least for the detailed response.
…
Responding to WMDKitty — Survivor
Ridiculous. Patently absurd. Completely contradicted by all facts. Being “crippled” is a huge disadvantage in a fight. Bring completely untrained is a huge disadvantage in a fight. I simply do not believe your accounting of events. I do not believe that you are lying, but you might be glossing over vitally important details, and you might just be deluding yourself.
Fix:
> I and Volokh have put forward no argument that bad laws should not be changed.
Sorry. All the typos on my phone. I meant county, not country.
I said what I meant. He didn’t spend much thought (here) on the fact that some laws, even parts of the constitution, may be deeply flawed, sometimes in ways that bear on the interpretational issues he’s trying to address. As a result, his argument is rather shaky. That by itself doesn’t refute him of course, but I did think it was worth commenting on it.
No. The legislature is responsible for writing a new law, if that’s what they think needs to be done. This does not imply that it’s not guided or constrained in any way by the stated purpose/justification (which is supposed to be a mere “flourish”). If that turns out to be wrong or misguided or inadequate, then the law should be changed by the legislature.
So that’s who does what. But it should mean the same thing to judges as it does to legislators. If it’s not overturned and is enforced, a judge should interpret the whole thing that the legislature gave them, purpose and all. I can’t imagine why you’d find that hard to accept. Judges shouldn’t be in the habit of ignoring certain parts of the law. Nor do they need to conjure up their own weird theory about why the legislature might have written that law, which doesn’t reflect what the legislature explicitly said about it.
With the 2A, it’s even more ridiculous than that might suggest, because we’re talking about excising one clause from a single sentence. All they have to do is read the whole thing for comprehension, not only the bit (taken out of this miniscule context) that gun lobbyists would like them to read. That is not asking for anything out of the ordinary.
To consciousness razor
Please answer the specific questions.
“In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed […]”
For this specific text, which is part of a real State constitution (or was), would it ever be reasonable for a judge to determine that this specific right is suspended because it no longer serves the stated purpose?
“The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever””
For this specific text, which is part of a real State constitution (or was), would it ever be reasonable for a judge to determine that this specific right is suspended in part or whole because it no longer serves the stated purpose? For example, would it be reasonable for a judge to decide that a rep in the house, while in session, could be sued for defamation, because such civil actions would not unduly act against the stated purpose of the text, quoted above?
Again, specific answers to these specific questions on these specific constitutional text excepts, please.
And again, for my answer, I think that it would be ludicrous in either case, for these specific texts, for a judge to declare that the right is now suspended because, in the judge’s opinion, the right no longer serves the stated purpose. And if we still disagree here, then I don’t know what else to do to try to resolve our differences on this issue.
Seemingly, we disagree very strongly about “what it is” that the legislature gave them. As Volokh wrote, you are interpreting it something along the lines “this right shall be guaranteed only so long as the right serves this particular stated purpose”. Whereas, that’s not what is written. What is written is, loosely, “the authors of this text assert the truth that some right is necessary to achieve some particular outcome, and the right shall not be infringed”. Those are very different readings with very different outcomes. If the authors of a law wish to assert some material fact, it is not the place of a judge to deny that fact. As Volokh wrote, if anything, when interpreting the “rights guarantee” clause, it should interpret that clause under the assumption that the factual assertion in the “justification clause” is true. It may require some counterfactual thinking, but that is how it should be.
So, if anything, the proper way for a judge to approach the second amendment is to interpret the guarantee to keep and bear arms according to the assumed truth of the justification clause, e.g. to assume the (potential) counterfactual that it is necessary to fully arm, equip, and train the population in war to prevent tyranny and invasion, and to interpret and apply the “rights guarantee” clause in the context of this assumed truth. Again, I’m just repeating what Volokh has written, and i have it to be incredibly compelling.
Again, do you really think that these other rights that I gave here are properly understood as containing sunset provisions? Do you really think that the proper way for judges to understand these other texts is that they contain provisions, conditional triggers, by which a judge may decide that factual conditions on the ground trigger the sunset provision and suspend the right? I think that’s ridiculous. Patently ridiculous. Outright absurd.
PS:
This is not about gun rights. I don’t really care about gun rights. I’ve even maybe come around to the position that gun rights are a bad idea.
This is about proper rule of law. This is about preventing certain strains of thought which say through misleading, confused, and dishonest rhetoric that judges should decide cases according to what is best for society, as opposed to what the law as written (plus case law) demands. This is about getting others to admit the simple and obvious truth that there is often a difference between “what judicial outcome would be best for society? and “what judicial outcome would be the most proper jurisprudence?”. In other words, we need to demand that our judges decide according to the law even in cases where doing so would produce outcomes that in isolation would be worse for society.
Gerrard:
You should already know my answers, since I already told you that no, it’s not a matter of the SCOTUS determining this – they can ask whether a law is constitutional and so forth, but I agree with you that questions like that are not within the realm of the judiciary. The legislature needs to be the one to decide that new legislation needs to be written or whatever the case may be. They can decide that a law doesn’t serve its stated purpose (or no longer does) – or as you put it later on, that it doesn’t assert the truth (anymore) about what is necessary to achieve the desired outcome. That would be a good reason for them to change it, repeal it, or whatever. Or they can sit on their asses and do nothing, like legislatures usually do. Then we just have a bad law, which sadly is a pretty normal state of affairs.
I don’t think I disagree with that. However, the place where we seem to diverge (correct me if I’m wrong) concerns what that clause entails about appropriate interpretations of the limits/scope of the rights which are being granted (or which limits are put on the government, if you like). This pertains more or less to what judges and legislators take the law to mean, how much it constrains their ability to write other laws/regulations consistent with the 2A, etc.
I’m not (right now, for the sake of this argument) disputing the claim that it is true, as the 2A asserts, that a right to bear arms is necessary for the security of a free state. So I will suppose (for the moment) that this claim is factually correct. Then, what we need do is look closely at what we actually have written into that law and what is not written.
Since the law states (to paraphrase) that people should be allowed to have a gun, due to the fact that this is necessary for the security of a free state, it is not the case that it says people can have guns for all manner of other arbitrary reasons that somebody might dream up.
The claim made by the law isn’t, for example, that individuals have a right to own a gun because it gives manly men giant boners when they shoot feral hogs. That is not, according to the law, why we should have guns. So if it is ever thought that the state fails to deliver on its promise to give the people the aforementioned gun-boners, it is not an infringement of any right that the people ought to have, according to the state, because no such promise by the state was ever made. A different kind of guarantee was made, explicitly, and not that one. Sounds good so far?
Once you notice this fact, that should change your perspective on what kind of right the law is meant to grant. You shouldn’t understand it as a right with no possible exceptions or limitations, one which only says that people should be able to have guns, while saying nothing else of any substance on the matter.
So once that’s understood, you could now ask some sensible questions about the constitutionality of other laws/regulations that might be proposed or passed – are they consistent with the 2A or not? Well, what exactly does it mean to ask whether they are consistent with it or not? Suppose a legislator tries to propose some kind of gun control legislation and their opposition tells them that they can’t legitimately do so, because all such things must be prohibited by the 2A, no matter what justification there may be for the gun control legislation in question, no matter what purpose it serves, etc. And they claim this, no matter what the gun control legislation would actually do in terms of restricting individual access to specific types of guns or gun accessories, mandating background checks, or whatever it may be.
Suddenly and for no good reason at all, things like the security of the state have been taken entirely out of the picture, as if that had never been written into the law itself. It no longer matters (suggests the opposition) that the point isn’t to give people gun-boners, so it is as if that were the role (for all we know) that the state is supposed be playing in our society according to the law. But in fact the purpose for it was written into the law, and not for nothing, because the people writing these amendments weren’t fucking joking around about gun-boners or whatever.
That is basically where we’re at, and we need to interpret the amendment appropriately to form reasonable conclusions here. If one thinks that it says effectively “let people have guns” while offering no guidance at all about why people should have them, to what extent or in what sense we can have them, what types of guns we may have, what types of other gun-related things we may have, in what circumstances we may have them, etc., then that is simply and factually incorrect.
You can read the law for yourself and see why that is so. It does in fact give us substantive and useful information about that, although the author left tons of room for reasonable debate in the future and left open a variety of coherent approaches that might be taken on the subject in general. As I’ve said, you just need to read and interpret the whole thing, not take the bit which fails to give us that sort of guidance out of context and claim (falsely) that this is in effect the entire text that we must try to interpret.
Now, yes, I do happen to think that an individual right to bear arms is not necessary for the security of a free state (which I take to be an admirable goal), that we should repeal the 2A and come up with something better. But at no point did I need this for the arguments given above. I took the whole thing on board and got to the point without any ideas like that. Agreed? The complaints in the preceding paragraphs are really directed to the many gun lobbyists, legislators, conservatives in the supreme court, etc., who are not interpreting that amendment correctly. The implication is that we can in fact have gun control legislation, even if we kept the 2A just as it is, that not all such things are unconstitutional so long as the 2A remains. Is that clear? There’s no point in hiding the fact that I do honestly want to repeal it, which is a separate issue; but I want to make sure I’m not adding to the confusion, by failing to make all of this explicit.
I legitimately still do not. It still seems that you’re trying to argue that the rights guarantee should be limited according to the scope of the purpose clause.
Again, I think Volokh put it better than I can. The other examples show that the guaranteed right is both underinclusive and overexclusive w.r.t. the stated purpose. A right to trial of facts in the same county as the offense is underinclusive because there are other things that are important for a fair trial, and it’s overinclusive because it’s not always necessary for justice to have the trial in the same county as the offense. I do not know if you agree with Volokh and I concerning this particular example of how the right is clearly both underinclusive and overinclusive compared to the scope of the purpose.
If we can answer this one first before moving on to the guns one, I think that would help a lot.