America the Insane


I’ve already heard the joke that the pandemic must be over, because we’re back to our regular routine of frequent mass shootings. They’re wrong. The pandemic is still ongoing, and during the latest insane murder spree in Boulder, some of the victims were shot while waiting in line for vaccinations.

All we know is that ten people are dead, that some kind of long gun was used by the scumbag, and that a bleeding person in cuffs was later walked out of the store by the police. Oh, and he was a white man, but there is absolutely no surprise in that. The police probably didn’t take him to Wendy’s afterwards, since one of the victims was a police officer.

I’m going to go out on a limb here and predict that there will be nothing done. No change in the gun laws. No restrictions on the ready availability of murder tools. The demented crazies are already claiming it was false flag operation.

The NRA, without missing a beat, responded by quoting the 2nd amendment.


A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Fuck the NRA, and I hate to say it, but the 2nd Amendment has me thinking, fuck the US Constitution. What good is it if it’s going to be used to shield a corrupt organization’s continuing racket of poisoning the country with weaponry and defending murdering maniacs?

Comments

  1. Reginald Selkirk says

    A well regulated militia, being necessary to the security of a free state…

    Do we have to give them credit for posting the entire text, and not just the second half, as on the wall of their lobby? Here the justification for the amendment is laid out, and was written before the USA had a standing army.

  2. brightmoon says

    I notice they didn’t comment on the shooter’s apparent sex life . Apparently that’s only for Asian women who work in spas!

  3. Ishikiri says

    Fuck the constitution indeed. Legal doesn’t equal moral, and if the laws are leading to injustice then it’s time to burn them.

  4. snarkrates says

    Used to live in Boulder and shopped at that very supermarket. Of course, that was before the country was utterly batshit crazy. Does anyone see a way out of this that doesn’t involve either civil war or partitioning the country and realizaing the shithead dream of a separate state of Kleetustan?

  5. says

    Fine let them join a well regulated militia with proper rules and training. Then they can keep their penis extensions under lock and key at the militia HQ until the authorities need them.

  6. cgm3 says

    Maybe we should concentrate on the “well-regulated militia” part of the amendment. Could a law be passed requiring membership in an organized militia — like, say, the National Guard (hey, whattaya know, we already have one of those!) — in order to own a gun? My understanding is that the idea behind it all was having armed citizens ready to step up to defend the nation, and I’m sure all those NRA patriots would be overjoyed to — wait, why are you all laughing? (Well, yes, there were also the southern slave patrols, which is why the amendment says “state” rather than “nation”, but, alas, that taint runs through much of U.S. history.)

  7. felixmagister says

    While I’ll be the first to admit that the Constitution of the United States is far from perfect, I don’t think that it should be blamed here. None of these shootings were committed by a “well regulated militia”, and the tendency to interpret the Second Amendment as granting individuals the right to own guns is actually a fairly recent development. Blame the founders for creating a system of government designed to prop up oligarchy, sure, but don’t blame them for looneys with guns.

  8. says

    The historical fact is that the militias became the National Guard. The Second Amendment pertains to the National Guard. The current interpretation by the SC is insane. Nevertheless, any way you look at it, this guy was not a member of a well regulated militia.

  9. kathleenzielinski says

    If the authors of the Constitution came back from the dead, one would be hard pressed to find a group of people with views more out of touch with modern thinking. Many of them owned slaves. They believed the vote should be restricted to white male property owners. So why should we care about their opinions about what is good governance?

    That said, I’m not as hostile to guns as some here. I’m fine with private gun ownership, though not with private ownership of military grade weapons of mass destruction like we have now. But the problem is the gun lobby’s belief that only gun owners have rights. In point of fact, there is no such thing as an absolute right because any time you have two or more people living near one another, there will be rights in conflict. The First Amendment does not give me the right to shout under someone’s bedroom window through a bullhorn at midnight, and the Second Amendment does not give me the right to have enough firepower to blow away a mall. Other people have rights too.

  10. weylguy says

    l know a way to make every gun-lusting asshole happy and safe. Mandate the ownership of one gun per person, with the following conditions: The gun is a bolt-action rifle, five feet long, painted bright orange, with a magazine limited to 10 rounds. People could continue to have guns, feel safe in their homes, and go hunting for food or sport. All other existing firearms would be seized by the states and destroyed, with their owners reimbursed for the cost. Add to that a mandatory 20-year prison sentence for illegal gun ownership, and a mandatory life sentence for ownership of any semi-automatic assault rifle.

    Gun fetishists could still collect and own multiple firearms with different styles and features, but all would comply with the above conditions, Owners could also have all the ammo they desire. Open-carry might still be allowed in some states, while concealed-carry would not only be banned, but made practically impossible.

    We might still see shootings, armed robberies and domestic murders, but I believe the number of mass killings would be reduced to zero.

  11. raven says

    …with a magazine limited to 10 rounds.

    Strangely enough, you don’t need a 10 round magazine. The Federal law limit is 15 rounds.
    Most states limit magazine capacity for hunting.

    Most states limit rifle magazine capacity to 5 rounds. Federal laws limit shotguns to 3 rounds for waterfowl.

    It varies by state. In California for big game hunting it is 10. Oregon is 5.

  12. HidariMak says

    Regarding the 2nd amendment, guns themselves were also quite different at the time. If the writers of the constitution foresaw the advancement of the killing potential of guns, and the ease of the public in getting bump stocks and converting semi-automatics to full auto, I suspect they’d have a rethink of what should be in the 2nd amendment.

  13. R. L. Foster says

    Thomas Jefferson himself wrote in the Declaration of Independence about “the merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions.”

    In the late 1700s the fear of those ‘savage’ Indians was one of the major reasons for the perceived need for state militias. As a descendant of these savages I rather resent the depiction, but I accept the world as it is. The relentless White expansion and conquest of native lands was necessary to give us this idyllic, and I daresay, near perfect nation we now call the USA. The red ‘savages’ may be gone, but we’ve replaced them with our own brand of savages. Give a White man a gun and he’ll use it. Take it from a savage.

  14. PaulBC says

    weylguy@11 Not really. They are happy when they have complete unrestricted access to their “toys”, i.e. penis extenders. They are even happier when they get to froth about “gummint coming to take my guns away” despite a complete lack of evidence that this will happen. In other words, any deviation from the status quo will not please them.

    And given that fact, I think the 2nd amendment should simply be repealed and guns should be as regulated as anything else that poses the same level of danger. If I were attempting to make weaponized anthrax in my basement, nobody would accept the explanation that it was for a well-regulated biowarfare militia with me and my buddies. Conversely, if I walked around with a halberd in an “open carry” state, it would probably be easier for local law enforcement to stop me than if I had a loaded AR-15. Guns as such are a fetish. It is not even about “arms” as stated in the text of the amendment.

  15. robro says

    Boulder police have released the list of victims and the name of the shooter: Ahmad Al Aliwi Alissa. That name will probably send the wingnuts into orbit.

    That WaPo article has this intriguing note: “Boulder’s assault weapons ban, meant to stop mass shootings, was blocked 10 days before the attack at a King Soopers grocery store.”

  16. brightmoon says

    Back in the day, a friend going camping was arrested for carrying a machete from his house to his car ( large knives over a few inches in length are illegal to carry) He was more annoyed than anything but he did spend the night in jail despite the fact that the charges were dropped . He copied pictures of his mugshot and handed it out to friends for years! If they can pester you about a knife, force you to have a licence to drive, and forbid alcohol intake to a minor, then they certainly can regulate a gun.

  17. greenspine says

    I live in Canada, and gun ownership in my country actually is “well regulated”. I own two rifles (a .22 and a higher-caliber hunting rifle) and my wife owns two rifles (same). In order to get a gun you have to attend, and pass, a gun safety and responsible ownership course. It’s an easy one-day session, extending to two days if you want a license for restricted firearms, which includes all hand guns and several classes of long gun. Some types of firearms are just straight banned. Restricted firearms are really restricted: you are allowed to transport them to and from only 6 places (home, gun range, gun shop, gunsmith, others I can’t remember right now), and if you get stopped by the police and you have a restricted firearm in your car, and you aren’t precisely on the route between these places, you can face real consequences. You aren’t even allowed to purchase a restricted firearm unless you are a member in good standing of a shooting range.

    The range officers at the shooting range we use are mostly ex-police and ex-military, and they take safety and responsible handling really seriously. It’s a part of the culture of the hunting and fishing club, and that’s the culture they promote in the course you have to take to own a firearm.

    All of which is to say: it’s possible to have a culture where gun ownership is controlled for the sake of safety, but still open enough that people who want to own a gun for hunting or target shooting can do that. The bars I had to pass to own a rifle were pretty low. It’s the very-American tendency towards fanaticism in everything, including gun-ownership absolutism, that makes people lose their minds if you propose even those low bars in the US.

  18. jrkrideau says

    @ 19 greenspine
    I can remember back in the 1990’s when a lot of new regulations came into effect, a colleague was having fits over some of them. He was a competitive pistol shooter and disagreed with a lot of them but simply because he did not think that the people writing the regs knew enough about guns to draft really good regulations not that he had any objections to regulations per se.

  19. weylguy says

    #15 PaulBC

    I think there’s also a strong element of fetishism involved with many gun owners–guns are heavy, solid, well-machined, dangerous, and to their owners even beautiful. You may be a minimum-wage trailer-trash slob, but those guns you have convey a huge amount of power and respect. The Second Amendment may give these people the right to bear arms, but where does it stop? 100-round banana mags? Bazookas? Grenade launchers? I don’t think even the police should have this shit.

  20. slithey tove (twas brillig (stevem)) says

    I am stuck on thinking the 2nd Amendment was written was a work around the lack of standing army the Constitution failed to include, because of their experience of the British using their standing army to keep the Colonists under control. Knowing they needed one for our defense after breaking away from Britain, the framers decided to include recruitment of volunteer militias as our defense army. Cleverly writing in letting the volunteers buy their own weapons, so government wouldn’t bear the expense of arming them.
    We have completely flipped that fiscal responsibility, making defense spending our top priority and the largest.expense of our budget.
    I know this is too long to get through the adamant encased skulls of all the gun fondlers we face.
    oh well.

  21. PaulBC says

    weylguy@21 I have never been a gun fetishist, and in fact I don’t want one near me. But I can understand the appeal of something solid that doesn’t feel cheap and disposable the way so many products do. Actually, the one thing I would buy if I were up for spending on useless but beautiful machines, it would be a Curta mechanical calculator. But even in that case, I don’t see why I really need one. I have other uses for my money, and would probably not take care of it as well as it would be taken care of in a curated collection.

  22. StonedRanger says

    I was wondering how long it would take for this to start up. This is the same old refrain I have heard every time a democrat gets elected. ‘Theys gonna take are guns!!!!’ Im 66 and no one has had any guns taken away yet. Its funny how only the democrats could be ‘responsible’ for these mass shootings when its mostly republicans who own most of the guns. They had their chance to take over the government on Nov 3 Jan 6 and they couldnt even get close to getting the job done.

  23. GerrardOfTitanServer says

    StonedRanger
    Gods. I hate all of the historical revisionism in this thread, but I hate this particular bit of tripe most of all. How can I you say that with a straight face in spite of what everyone else in this thread is saying? Of course many Democrats want to take their guns away. You’re piss drunk if you don’t see that. There are also many laws trying to do just that, including the former so called assault weapons, the orwellian named firearm owners protection act, and the various state and local laws like the former handgun ban in DC, and the various rules in California that make it practically impossible in much of the state too own many kinds of guns.

    Can’t you just be honest about the real point which is to take away many of their guns?

  24. donfelipe says

    “Can’t you just be honest about the real point which is to take away many of their guns?”

    My response to this is always, so? There is absolutely no need for people to own guns. Billions of people get by fine without them. The side effect of ignoring how unnecessary they are is the weekly mass shootings that happen. I guess denial of this only primed a large sector of American society for the denial of Covid’s impact.

  25. GerrardOfTitanServer says

    My response to this is always, so?

    My response is that there is flagrant dishonesty in over half of the posts in this thread, and it pisses me off. We should not be so tolerating of politically comforting bald-faced lies in our own community. We should be better for that. The historical revisionism and lies about our agenda should be the thing that the other side does; not us.

  26. kathleenzielinski says

    Gerrard:

    I don’t want to confiscate all guns. I do want to ban large magazines and other military grade weapons of mass destruction. I’m fine with you keeping your hunting rifle, the pistol you use at the sporting range, and something reasonable for self defense. I want mandatory gun safety courses, laws about how guns are stored so kids can’t get them and accidentally kill each other. I want other things that I consider reasonable regulation.

    Yes, there are people — some of them here — who want to confiscate all guns. I think their numbers are pretty small. The problem is, though, that any time anyone proposes any reasonable gun regulation whatsoever, the NRA types start screaming about how this is the first step toward confiscation.

    No it isn’t. Automobiles are heavily regulated, but nobody seriously thinks car confiscation is in the works.

    So take a deep breath, count to ten, and you’ll feel better.

  27. wzrd1 says

    Apparently, the murders were committed with an AR-15 style pistol. As bad as it sounds, that was a good thing, as had he used a full sized AR-15, he’d have likely killed many more people.
    As a hint, the military was never even interested in a pistol of that type.

    BTW, if you are a male, able-bodied, age 17 – 60, you already are in the unorganized militia. State Defense Forces are also allowed for states, as those forces cannot be mustered into federal service.

    What would be useful is to reclassify semiautomatic firearms that are derived from selective fire military service rifles, placing them under a new classification under the National Firearms Act.
    And while we’re addressing that, tighten up “oil filters” that are actually suppressors/silencers, but labeled as water or oil filters.

  28. lanir says

    The perception people have about owning guns seems to be that it makes you safer. This is magic thinking. Using any weapon effectively involves skill, not just a purchase. Skill takes time, effort and consistency to build up.

    As I understand it, the NRA originally taught about responsible gun ownership. Now it promotes the opposite: a sneering entitlement to own deadly weaponry based on a specific law that would be hard to change. They keep the discussion about the law because with any other framing their stance is bonkers. I mean, what are they really saying by quoting the 2nd amendment at this time? “Sorry-not-sorry but he had the right to shoot those people” maybe? If that isn’t their intended message they’re at the very least implying the situation is a whole lot more murky than it appears to be. If the message is intended to be anything else it’s a bit early for such bold statements. We haven’t even gotten to the always contrived victim blaming nonsense yet.

  29. AstrySol says

    I didn’t want to take away any guns before, but my ideal model been shifting from Canada to Australia because of the response from the gun nuts and NRA every time shit like this happened. If they keep doing this and nothing is done, I may think of Japan or even China (total ban) as acceptable.

    If “responsible gun owners” don’t want a total ban on all the guns, they should prove that they exist and matter by actually supporting some reasonable regulations instead of letting the NRA loonies run the show all the time.

    I think this may be for free speech as well: the major platforms didn’t start cleaning up their houses (albeit not very effectively, but better than nothing) until they found out if they kept letting the loony freeze peach absolutist getting their way on their platforms, there might be a day when the sentiment got strong enough that it might be acceptable for free speech rights to be completely crushed.

  30. GerrardOfTitanServer says

    There appears to be an auto-filter on my post. Don’t know on what. Using multiple posts. Sorry.

    Why do I post this? Because it pisses me off when my side spreads easily debunked lies, and because I believe that these lies are counterproductive to passing meaningful gun reform which I also want.

    cgm3
    I like your idea. Your specific details probably won’t work. However, given the historical precedent of requiring all members of the unorganized militia to show up for yearly training, as called for in one of the Federalist Papers, and as practiced in the Second Federal Militia Act of 1792, I think it’s a mere legal baby-step to requiring the equivalent of a modern driver’s ed and driver’s license to possess and carry firearms. Rights are not absolute, and constitutionally protected rights, like free speech, driving on a public road, etc., can also be licensed (depending on the context and details).

    To Everyone
    The idea that the second federal amendment, existing as it does in the bill of rights, whose text explicitly protects the rights of the people and not the powers of the States, is about anything other than an individual right is unsustainable. It’s clearly a continuation of the existing common law right of British persons to own weapons as codified in the British Bill Of Rights of 1689.

    This idea that the second amendment is about police is particularly obscene and shows that the speaker knows nothing about the history. tl;dr The founders nominally just fought a war of rebellion to get rid of their standing army, their police. After the revolution, their night watch, their sheriffs, etc., had basically no special powers or privileges when it came to arrests, searches, or weapons, and the modern idea here that police should have guns but no one else should – that idea would be utterly anathema to everyone of that generation. It would run contrary to their founding principle that everyone should be equal before the law, and that there should not be a standing army used for law enforcement which is really what the British Army was when initially stationed in America, and it was that use which made many Americans so very pissed. Go re-read the Declaration Of Independence.

    slithey tove (twas brillig (stevem))

    I am stuck on thinking the 2nd Amendment was written was a work around the lack of standing army the Constitution failed to include

    If you are this ill-informed about the modern debate, please shut up and listen instead of making shit up. The US federal constitution does allow creation of an army during peace (which predated ratification of the American federal billl of rights by about 10 years). The inclusion of an allowance for creating an army durign times of peace was a major point of contention back in the day between the federalists and anti-federalists.

    PS:

    Cleverly writing in letting the volunteers buy their own weapons, so government wouldn’t bear the expense of arming them.

    Note that the second federal militia act of 1792 actually required basically all able-bodied white male citizens between the ages of 17 and 45 to go out and purchase (or otherwise obtain) a certain kind of military-grade firearm, ammunition, and a laundry list of military equipment, or else face a stiff monetary fine. This was a personal obligation, and we know from a report prepared from the Federal congress that most of these firearms were personally obtained and maintained and held, and we know that the obligation was a personal one from the recordings of a particular court trial which upheld this individual responsibility and stiff money fine.

  31. GerrardOfTitanServer says

    cervantes

    The historical fact is that the militias became the National Guard.

    False. The national guard is identifiable with the organized militia. The militia at large is the same as it’s always been, defined today by federal law as consisting of basically all able-bodied men citizens between the ages of 17 and 45. PS: A big difference is that today, the militia includes non-white men (historically only white men), plus all women who are part of the organized militia aka the national guard.

  32. GerrardOfTitanServer says

    It doesn’t like my citation of the current federal law? Bizarre.

    www XXX law XXX cornell XXX edu/uscode/text/10/246

    garydargan

    Fine let them join a well regulated militia with proper rules and training.

    You’re misusing the historical phrase “well-regulated”. “Well-regulated” is a phrase that has fallen out of common usage. You’re using “well-regulated” in a manner of suppression or control, but the historical usage was that of empowerment. A well-regulated clock is a clock that tells the correct time because it is well constructed and well maintained according to its purpose. A well-regulated appetite could be used to describe someone without an addiction. A well-regulated militia is a national population who are properly armed, trained, and organized into an effective military force (at least the segment of basically all adult able-bodied male citizens between the ages of 17 and 45).

    Let me drive this point home with two quotes.

    https://en.wikipedia.org/wiki/Federalist_No._29

    The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.

    The source of the following quote is this: The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot’s Debates, Volume 3]. Saturday, 14 June, 1788. https://memory.loc.gov/ammem/amlaw/lwed.html … A direct link to the particular page is sadly unavailable. The search function does work.

    For emphasis, James Madison is often called the father of the constitution, and George Mason should be called father of the (American) bill of rights. Notice how they freely change between “the people” and “the militia” as though the terms were largely synonymous.

    Excerpt:

    Mr. MADISON supposed the reasons of this power to be so obvious that they would occur to most gentlemen. If resistance should be made to the execution of the laws, he said, it ought to be overcome. This could be done only in two ways–either by regular forces or by the people. By one or the other it must unquestionably be done. If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army. The best way to do these things was to put the militia on a good and sure footing, and enable the government to make use of their services when necessary.

    Mr. GEORGE MASON. Mr. Chairman, unless there be some restrictions on the power of calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, we may very easily see that it will produce dreadful oppressions. […] There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army. The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless–by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; […] An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

    Reginald Selkirk

    Do we have to give them credit for posting the entire text, and not just the second half, as on the wall of their lobby? Here the justification for the amendment is laid out, and was written before the USA had a standing army.

    Even if the justification were operative, it wouldn’t help you, because of what I’ve shown above. “Militia” basically refers to all able-bodied adult male citizens between the ages of 17 and 45, and “well-regulated” is a term that means “has the proper military equipment and training” and not “the government keeps the guns away from them”.

    However, the justification phrase is not realy operative. It’s an outlier in the federal constitution, but that sort of rhetorical flourish was common in State constitutions of that era. Please see the following paper for more information: http://www2.law.ucla.edu/volokh/common.htm Here’s my favorite example:

    “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 …”

    Can anyone here say with a straight face that this civil right is contingent on the decision of a later legislature, or judiciary, to determine if the asserted justification is still really true? In other words, is it the purview of the legislature, or the judiciary, to determine that it’s no longer necessary for the trial to happen near the offense in order to have a fair trial, and thus this guaranteed civil right shall be abolished without amendment? I hope not. The federal second amendment is no different.

    garydargan

    Then they can keep their penis extensions under lock and key at the militia HQ until the authorities need them.

    That would defeat one of the original purposes of the second amendment, which is overthrowing the government.

    Quoting two of the most influential political tracts of that time, The Federalist Papers and the pamplets of Noah Webster.

    https://en.wikipedia.org/wiki/Federalist_No._46

    The only refuge left for those who prophesy the downfall of the State Governments is the visionary supposition that the Fœderal Government may previously accumulate a military force for the projects of ambition. […] [Suppose that] traitors should […] uniformly and systematically pursue some fixed plan for the extension of the military establishment […] Let a regular army, fully equal to the resources of the country, be formed; […] This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by Governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe […], the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

    Source: In the series of pamphlets titled “An Examination Into the Leading Principles of the Federal Constitution” by Noah Webster. Available at: https://books.google.com/books?id=YJo0AQAAMAAJ An excerpt, updated by me into modern spelling:

    Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. In spite of all the nominal powers, vested in Congress by the constitution, were the system once adopted in its fullest latitude, still the actual exercise of them would be frequently interrupted by popular jealousy. I am bold to say, that ten just and constitutional measures would be resisted, where one unjust or oppressive law would be enforced. The powers vested in Congress are little more than nominal; nay real power cannot be vested in them, nor in any body, but in the people. The source of power is in the people of this country, and cannot for ages, and probably never will, be removed.

    cgm3

    (Well, yes, there were also the southern slave patrols, which is why the amendment says “state” rather than “nation”, but, alas, that taint runs through much of U.S. history.)

    Utter horseshit. That “slave patrol” historical revisionism is particularly annoying for how completely detached from the real historical narrative that it is. “A free state” clearly means “a non-tyrannical government and society”, not “the several States”. Jesus Christ. Have you no shame?

    HidariMak

    Regarding the 2nd amendment, guns themselves were also quite different at the time. If the writers of the constitution foresaw the advancement of the killing potential of guns, and the ease of the public in getting bump stocks and converting semi-automatics to full auto, I suspect they’d have a rethink of what should be in the 2nd amendment.

    There’s precisely zero chance of this actually being true. Go read what the founders actually wrote. — Of course, the founders were often mistaken. I’m not trying to make a normative point here.

  33. PaulBC says

    GOTS@25

    Can’t you just be honest about the real point which is to take away many of their guns?

    I’ll be blunt and say I would like the 2nd amendment repealed and in the trash bin of history along with the 18th (which is at least written clearly and sort of makes sense to me though I don’t think prohibition is workable). The 2nd amendment is ambiguous as well as archaic. Among the worst written part of a founding document with numerous other flaws, though admirable in some respects (nice preamble for instance).

    I’m not sure we necessarily need to take everybody’s guns away. I would be content with gun ownership and regulation at the level of more restrictive European nations (intentionally vague because I do not even pretend to know the relevant laws; I lived in Switzerland long enough to know that a Waffenladen wasn’t a waffle shop, and I walked past one daily, but I do think they’re a bit more regulated.)

    As for me, I don’t want them anywhere near me. They’re sure as hell not going to make me “safer” assuming we aren’t already a failed state. WTF is wrong with people?

  34. GerrardOfTitanServer says

    kathleenzielinski

    I don’t want to confiscate all guns. I do want to ban large magazines and other military grade weapons of mass destruction.

    Aka you want to ban basically all semi-auto rifles. Possibly most or all semi-auto handguns too. That’s a lot of guns. Saying “but you don’t want to take their guns” is not honest. You do want to take them. Maybe not all of them, but most of them. Saying “no one is coming for your guns” is flagrantly dishonest.

    No it isn’t. Automobiles are heavily regulated, but nobody seriously thinks car confiscation is in the works.

    No one is talking about confiscating all automobiles by classes which include like 50% of the cars on the road either.

    wzrd1

    What would be useful is to reclassify semiautomatic firearms that are derived from selective fire military service rifles, placing them under a new classification under the National Firearms Act.

    So, basically all of them? Every handgun, rifle, shotgun, etc.? The spoiler is that almost all guns come first as military weapons, and then they go into civilians hands, either directly or via knock-off designs.

    And while we’re addressing that, tighten up “oil filters” that are actually suppressors/silencers, but labeled as water or oil filters.

    Oh come on. Stop that Hollywood suppressor nonsense. Suppressors are not a problem. Suppressors don’t make a shot magically silent. Suppressors are useful tools for preventing hearing damage. Even with a suppressor, a suppressed gun is still insanely loud. (Yes it sounds different, so at a distance you might not immediately recognize it as a gunshot, but if that’s your worry, then please phrase it like that instead of the Hollywood-silent myth.)

    AstrySol

    If “responsible gun owners” don’t want a total ban on all the guns, they should prove that they exist and matter by actually supporting some reasonable regulations instead of letting the NRA loonies run the show all the time.

    That would be the ideal outcome for them. Unfortunately for them, I think that they are too stuck in the culture war mindset and toxic masculinity, and will refuse to do any sort of compromise.

    PS: I am not a gun owner, but I have a few gun nut friends. Most of them are open to many reasonable regulations, including a gun owner licensing scheme, but they are afraid that it’s just a dishonest ploy, a stepping stone to total gun confiscation, based on the brazen spreading of bald-faced lies that they see all the time from Democrats, like many of the posts in this thread.

  35. tempusfugit says

    @GOTS What exactly is a laughable NRA hack like you doing on a site like this? You recycle weary, idiotic gunhumper talking points from the dim past such as the ludicrous comparison of gun control with potential automobile ‘confiscation’–we all recognize the trope, you moron: “Well cars kill people TOO so….” No, dear, cars are not generally used as weapons for mass murder except by your MAGAtrash cohorts on occasion. No, dear, guns are not necessary for the maintenance of anyone’s FREEDUMBS in 2021. No, dear, guns do not make us safer. No, dear, an armed society is NOT a polite society. No, dear, the Constitution is anything but sacrosanct; there are quite a few amendments which make this more than clear. No, dear, historical reality in the eighteenth century is not directly comparable to 2021. The list of your errors is too long to bother listing here, but your drivelling use of Reichwing cliches like ‘orwellian’ (it’s capitalized, by the way, stupid) betrays you at every turn, as do your extensive citations which in fact contradict each other. Let me make clear that I have zero interest in anything else you might vomit up and will neither read nor respond to it. I’ve rarely seen a worse liar, a more disingenuous phony , or a troll more worthy of immediate retirement to Irkutsk–and it’s still winter there. :D

  36. tempusfugit says

    @snarkrates Love CLETUSstan. Stealing.
    Sadly, no. Not after four years of dRUMPf and his thugs making amurriKKKa into hell on earth. It was bad before that; it is insoluble now. The presence of Reps Gangreene and SideBoobert in Congress is a complete answer to your question.

  37. PaulBC says

    GOTS@36

    PS: I am not a gun owner, but I have a few gun nut friends. Most of them are open to many reasonable regulations, including a gun owner licensing scheme, but they are afraid that it’s just a dishonest ploy, a stepping stone to total gun confiscation, based on the brazen spreading of bald-faced lies that they see all the time from Democrats, like many of the posts in this thread.

    They may think that, but I doubt you will find many “Democrats” (whether voters or politicians) who think guns need to be less available here than they are on average in Europe.

    A very reasonable standard is (a) Don’t make it into a quasi-religious issue. The 2nd amendment (whatever it means) came out of a very different historical context and (b) look at other comparable democracies and see how they regulate their guns. There is no need to be extra-restrictive in the US if other nations have struck the right balance.

    If you think I write the above disingenuously, then I wonder what else you believe. The unifying theme of most liberal thought in the US is that other Western nations could provide a reasonable model if we weren’t such morons to believe we are “exceptional” and “free.” Let’s stop promoting the same ideas, proven time and again to fail.

    And yeah, the gun nuts will probably believe anything. Fuck the gun nuts.

    Also, none of this is going to happen because the gun nuts have held the the upper hand for many years. I agree that little ineffectual regulations around the edges are both pointless and not what either side wants. I just want sane gun laws, and I believe there are examples around the world that work, and even provide room for target shooting and hunting, not that I will pretend to be a fan of these activities either.

  38. GerrardOfTitanServer says

    tempusfugit
    Please get off auto-pilot. I didn’t make that comparison. I didn’t make the argument “cars kill people too”.

    Also, I must be the worst NRA plant for advocating for a universal gun owner’s licensing plus training scheme, and explaining the way forward that would be found constitutional in light of current SCOTUS case law on the second amendment.

  39. says

    But it was fine to outlaw guns that were seen as available to poorer black people “Saturday night specials”
    Gun nuts just don’t want white peoples’ guns taken away

  40. GerrardOfTitanServer says

    PaulBC
    Earlier, you wrote:

    They are even happier when they get to froth about “gummint coming to take my guns away” despite a complete lack of evidence that this will happen.

    Do you still stand by the strong assertion “a complete lack of evidence”? Why do you need to make such a strong claim which is entirely unsupported, when you could make a weaker claim that is far more reasonable, such as “prospects of additional gun confiscation laws are low at this period of time due to SCOTUS and due to the lack of political will by mainstream Dem reps” ?

  41. GerrardOfTitanServer says

    But it was fine to outlaw guns that were seen as available to poorer black people “Saturday night specials”
    Gun nuts just don’t want white peoples’ guns taken away

    In case anyone didn’t know, we can trace much of modern gun control back to Ronald Reagan as governor of California getting upset about the Black Panthers protesting in the California Capital Building with guns, as allowed by law at the time. See the background of the Mulford Act.

    You are right that racism is a huge element behind modern gun control (but far from the only reason, and there’s plenty of compelling reason to have gun control that don’t rely on racism).

  42. consciousness razor says

    Gerrard:

    You’re using “well-regulated” in a manner of suppression or control, but the historical usage was that of empowerment. A well-regulated clock is a clock that tells the correct time because it is well constructed and well maintained according to its purpose. A well-regulated appetite could be used to describe someone without an addiction. A well-regulated militia is a national population who are properly armed, trained, and organized into an effective military force (at least the segment of basically all adult able-bodied male citizens between the ages of 17 and 45).

    This bears on the justification that it’s “necessary to the security of a free state.” If its so-called militia is not properly trained, organized, etc., then it will not be very effective at providing some degree of security for that state. Then, of course, there is still a question about whether certain specific gun regulations (or making certain types of guns illegal, etc.) actually do make a free state less secure.

    On another terminological note, this is “state” in the same generic sense that one would call a nation/country a “state” or that you’d say Queen Elizabeth is the “Head of State” for such a nation/country. Or similarly, you could claim (correctly or not) that Benjamin Franklin exhibited fine statesmanship when he did this or that. The point is that it doesn’t entail some kind of restriction to entities like Kansas or Rhode Island for example (which we also commonly refer to as “states”), such that it isn’t about the security of the larger nation which contains them.

    However, the justification phrase is not realy operative. It’s an outlier in the federal constitution, but that sort of rhetorical flourish was common in State constitutions of that era.

    We’ve argued about this in the past, but who cares if it was common (but also an outlier)? Just tell me exactly why we should we ignore the justification. You insist that we shouldn’t ignore the intent and purpose behind the term “well-regulated militia.” So what’s supposed to be the difference?

    Can anyone here say with a straight face that this civil right is contingent on the decision of a later legislature, or judiciary, to determine if the asserted justification is still really true?

    Yes, because the truth matters. Laws being interpreted via bad reasoning, confusion, lies, bullshit, etc. are a recipe for disaster. And if a legislature needs to write another law to correct for a previous error or ambiguity or what have you, then they had better do so, because making law is the entire job of a legislature. We don’t give that power to anyone else.

  43. GerrardOfTitanServer says

    consciousness razor
    I think it all hinges on the separate example from a State constitution of the same time that I posted above. Let me post it again here:

    http://www2.law.ucla.edu/volokh/common.htm

    “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 …”

    I think it is wholly unreasonable for any later legislature or court – sans amendment process – to use the justification clause to be the foundation of a decision that this right to have the trial in the same county as the offense shall no longer be guaranteed because they decided that it is no longer necessary necessary to have the trial in the same county as the offense (in spite of the clear assertion in the text to the contrary).

    I’m with the (horrible) late Scalia on this matter, and also Volohk IIRC: If anything, the existence of a justification clause like this should force the courts to operate under the assumption that the justification clause is true while interpreting the operative clause. So, the justification clause has some legal meaning. Rather than being a built-in sunset clause, I think it should be a command for the courts to interpret the right in a particular assumed factual and legal context.

    If you really think to the contrary, then I don’t think that we can have any further constructive conversation. I could try, but I have very low hopes for any progress.

  44. GerrardOfTitanServer says

    Sheesh, some topics just smoke out the obsessives, like GerrardOfTitanServer.

    I just lurk in most threads. I speak up when it’s a topic that I know something about, which is rarely, and especially when I say grave dishonesty being perpetuated by multiple members of the commentariat with barely any rebuttal.

  45. PaulBC says

    GerrardOfTitanServer@42 Government is not coming to take guns away. I have watched even small gun control measures fail repeatedly. Note that Obama was barely in a position to improve healthcare incrementally, let alone push a more ambitious agenda. Indeed, what I thought at the time was that he squandered a lot of political capital on ACA and really should have put the entire focus on getting a faster economic recovery. Guns weren’t even on my radar.

    There was no evidence that Obama had the political means to take guns away. There is no evidence that Biden has those means either. Politics, as the old saw goes, is the art of the possible.

    Yes, of course, I would like to take a lot of people’s guns away and have never pretended otherwise (except maybe when I was 30 years younger and stupider and a little libertarianish). But I will repeat my assertion:

    They are even happier when they get to froth about “gummint coming to take my guns away” despite a complete lack of evidence that this will happen.

    At least some gun nuts work themselves into a froth about it, and while I cannot read minds, my inference is that this is part of their “pursuit of happiness.” There is very little reason to believe that any US government will succeed in the kind of massive gun collection I would support. Indeed, there is a complete lack of evidence that it will ever happen. Convince me otherwise, and you’ve made a new friend.

    Please, GOTS, produce this evidence that the US government is coming to take away guns. The fact that I’d like them to is not evidence. I would like massive investment in developing viable self-replicating robots that can mine the asteroid belt. I see no evidence of that happening either. There’s a lot of stuff I want and yet I can see as clearly as anyone that it’s not happening.

  46. GerrardOfTitanServer says

    PaulBC
    I don’t agree with your framing. If the left is constantly speaking loudly about something, that’s still cause for concern, even though the paths open for that political end are very narrow now.

    PS: Before the Heller SCOTUS decision, there was real progress on gun confiscation, such as DC’s complete ban on handguns, and still to this day lesser but similar draconian gun ban policies of California and other places. These policies in California and other places still continue to this day, although they may be eventually overturned in whole or in part because of Heller.

  47. GerrardOfTitanServer says

    Oh, and the expired federal assault weapons ban, which might still make a comeback and might still pass SCOTUS. (An annoying law if there ever was one. An almost completely ineffectual law for promoting public safety, but perfectly framed for riling up the NRA’s base. I could almost believe that the people working for a new assault weapons ban are secretly in the pocket of the NRA and the gun manufacturer’s lobby.)

  48. PaulBC says

    GOTS@42

    “prospects of additional gun confiscation laws are low at this period of time due to SCOTUS and due to the lack of political will by mainstream Dem reps”

    And I didn’t phrase my claim in weaselly bureaucratese because my simple assertion stands: there is no evidence that the US government is coming to take your guns away. There is literally no evidence. If you wish to rebut this, then provide some evidence.

  49. PaulBC says

    GOTS@49

    I don’t agree with your framing. If the left is constantly speaking loudly about something, that’s still cause for concern, even though the paths open for that political end are very narrow now.

    To be clear, I didn’t say the gun fondlers have no cause for concern. What I said was that they loved frothing over a hypothetical that in my considered opinion, just ain’t happening.

    Fuck yes, I wish their concern was not hypothetical.

    It’s like this. I could listen to evangelicals and start frothing that we’re about to turn into The Handmaid’s Tale, and I could even say their rhetoric provides understandable “cause for concern” for those who really do see us headed towards theocracy. But in reality, I see that as an unlikely outcome. (Now a failed state with regional social breakdown, I see as something that may be more likely.) Yeah, people can be concerned.

    It is good, is it not, to know where people stand and whether they’re your opponents or allies politically? Isn’t that the entire purpose of political discourse?

    I am absolutely an opponent of gun rights activists, and I will not lie about it. All the same, I see gun control about as likely in my future as asteroid mining.

  50. consciousness razor says

    Gerrard:

    I think it is wholly unreasonable for any later legislature or court – sans amendment process – to use the justification clause to be the foundation of a decision that this right to have the trial in the same county as the offense shall no longer be guaranteed because they decided that it is no longer necessary necessary to have the trial in the same county as the offense (in spite of the clear assertion in the text to the contrary).

    It’s not unreasonable. The reasoning can certainly be given, and what’s really going on is that you just don’t like the conclusions.

    So what do we call this false assertion? A “rhetorical flourish” perhaps? “Bullshit”? I’m open to suggestions.

  51. GerrardOfTitanServer says

    cr
    If you’re really being honest that you think that there’s a respectable jurisprudence that would allow the outcome that you’re suggesting, I still don’t know what to say beyond “obviously that’s wrong”. It runs completely contrary to the author’s intent, original and modern plain text meaning, and any competent theory of legal reliability ala rule of law. I hate to channel Scalia, but constitutional rights are things that must be protected, even if a future legislature or SCOTUS decides that the right is no longer worth insisting upon (excepting an amendment process). Anything else is a gross affront to the rule of law, and puts the rest of our protected individual rights in great jeopardy.

  52. Tethys says

    I see that our local gun loving troll is blathering away about their fetish.

    A well regulated militia is a pointless clause in face of the current multiple well regulated branches of the U.S. Military.

    Anyone who thinks they need a gun to protect themselves from the government taking their2nd amendment right to a gun is hopelessly delusional.

    We banned original Coke, lawn darts, and Pintos, but according to the Russian brainwashed fools at the NRA, the right of male mass murderers to own military grade weapons is sacrosanct.

  53. AstrySol says

    GOTS @49: “If the left is constantly speaking loudly about something, that’s still cause for concern”

    And the constant froth from NRA loonies (like the one shown in the OP), which is CURRENTLY IN IMPLEMENTATION AND AFFECTING EVERYONE’S LIFE, is not?

    I don’t think this is “the left”‘s problem if this slippery slope you like so much is actually heavily tilting in the other way.

  54. unclefrogy says

    wow! i have not read the whole thread i will go back and finish to make sure i get the whole discussion. There is something that has only been hinted at as far as I have read so far. the NRA has gone from a gun safety and responsible ownership to a lobiest group “fighting the ban on guns”
    they get alot of gun owners very excited about some threat to their guns and their shooting sport as well as their personal security and safety.
    The money for the adds and the lifestyle of those who work for and manage the NRA does not come from the majority of their members, most of those who get so upset are not paid members they just vote the way teh NRA says they should. the NRA and their stance on the unrestricted ownership of guns supports and is supported by the small arms manufactures and dealers. their message not openly stated but implicit the free marketing and manufacturing of guns and ammunition.
    that is who gets the real benefits and who pays for all the political influence. It is about protecting the small arms business any regulation of that is a direct threat to what profits fear can generate in the population
    uncle frogy

  55. birgerjohansson says

    I will not take a stand of exactly which firearms should be allowed, but, in terms of the government taking away things that were cherished by their owners, there is a precedent:
    the decision in USA to base the currency on gold, and take away all gold items from private citizens.
    Even if they were reimbursed, it must have been painful to lose keepsakes.
    I am not saying that was good or bad, I am just saying there is a precedent for making such impopular decisions.
    And even if the responsible gun owners are no problem, it is quite hard to create a system that allows a lot of guns yet manages to stop all irresponsible assholes from getting access to one.
    The systems in Canada or Australia seem to be reasonable compromises.

  56. consciousness razor says

    Gerrard:

    Anything else is a gross affront to the rule of law, and puts the rest of our protected individual rights in great jeopardy.

    Not buying it. In order to even make this argument, you had to be rather fictionalist (for lack of a better term) about our rights and what it means to protect them.

    We’re not infringing an individual’s rights when we decide that, according to the 2A as written and understood by everyone except perhaps the most delusional 2A whackjobs, that person can’t legally own a nuclear bomb. This is indisputably a type of arms which one could (potentially but not legally) bear. However, we don’t let people do that, and it isn’t an infringement of any actual right that they have. Also, it should go without saying, this understanding or decision that we’ve reached about it did not require any change to the 2A — not one word of it. It’s important that this is the sort of thing that we can do with laws that may have been around for a very long time, and really we do it quite often.

    The fact is, allowing nuke ownership would not enhance or protect anything which should be enhanced or protected, neither for that person alone nor for the secure and free state to which others in our society are entitled. (Indeed, we would be much less secure if we did allow it.) You could of course formulate such reasons somewhat differently than I just did, but that is at any rate the basic idea which can’t be dispensed with if we’re going to make any sense out of this stuff.

    So, all of this horseshit about us being in “great jeopardy” and so forth is just noise, if you can’t provide some kind of framework like that, which goes beyond the text (as you want it to be interpreted) by recognizing what is actually at stake and informing us as to why we have obligations to each other that warrant the language of political rights.

    If it’s just going to be a bunch of words on a page, like the ones that describe Bilbo traveling back to the Shire, and there’s no serious demand that they should relate somehow to the real world we live in, then I don’t think you can provide that. Seems like a problem. Also, it doesn’t seem like you have much reason to be upset, if, say, I come to a different interpretation of The Hobbit than you do…. I don’t know, maybe “upset” is sensible, but at least you shouldn’t be issuing such dire warnings about it.

  57. nomdeplume says

    How does “god” give Americans the “right” to own any kind of gun, let alone military grade weapons? The “god” of the bible knew about spears and swords of bronze or iron, and that was pretty much it. And how did a country totally unknown to the “god” of the bible, get given the “right” to own anything 2500 years after the bible was written?

  58. GerrardOfTitanServer says

    consciousness razor
    I’m not talking about the second amendment. I want to first establish what our jurisprudence rules should be. I demand we first talk about the other example from the State constitution about the right to have a trial in the county of the offense.

    I think rule of law is important. It seems like you don’t. They are “just […] a bunch of words on a page”, whatever that is supposed to mean. The question is whether you support rule of law, or whether you think that judges should be able to overthrow constitutional civil rights when you and they think it’s for the public good.

  59. wzrd1 says

    @GerrardOfTitanServer, I was unaware that every rifle, pistol and shotgun in existence had a military machine gun counterpart! So, my wife’s .38 SPL revolver is precisely the same as a Vulcan chaingun?
    You also put the cart before the horse, as most military firearms began in the civilian sector and were adapted for military service. The AR-15 existed before it was selected for military service as the M-16 and later, M-4. Even the storied M1911 pistol was available to the public before the military selected it.

    That drivel about suppressors ignores my entire point, where suppressors are falsely being sold as a filter, wink – wink, nod – nod. We regulate suppressors under the NFA and we need legislation to bring the out of control back under control.
    And for the record, I’m intimately familiar with suppressors, having used them frequently when I was SF.
    One can fully suppress a report, but the suppressor would be ludicrously huge for anything larger than a .22LR. Still, the noise reduction is substantial with some models, most are still well over 100 db.

  60. GerrardOfTitanServer says

    wzrd1
    https://en.wikipedia.org/wiki/ArmaLite_AR-15#History
    https://en.wikipedia.org/wiki/M1911_pistol#History

    One can fully suppress a report, but the suppressor would be ludicrously huge for anything larger than a .22LR.

    I know you know, but others don’t know that the action of the gun is still amazingly loud unless the designer of the gun takes certain steps to silence it. It is not like Hollywood silencers. Again, for the benefit of others, you’re not going to be next to a gun being shot and fail to hear something very loud (barring extremely unusual and extremely rare guns).

  61. AstrySol says

    GOTS @61: “The question is whether you support rule of law, or whether you think that judges should be able to overthrow constitutional civil rights when you and they think it’s for the public good.”

    I think some judges have already been doing that and there are six of them now.

  62. consciousness razor says

    I’m not talking about the second amendment.

    Yes you are, unless you’re ready to tell me that nothing you’re claiming entails anything about the second amendment. But I know you won’t do that. This is “flagrant dishonesty,” to use your phrase in #27. So, engage with my comment if you’re able to, or just don’t bother.

    I think rule of law is important. It seems like you don’t. They are “just […] a bunch of words on a page”, whatever that is supposed to mean.

    Read again: that’s not what I think but how you are (or seem to be) treating them. That is, it’s what you’re doing, up until the last moment when you have to tell us that we shouldn’t be able to have gun regulations (in whatever ways you happen to dislike) because of the awful effects it will supposedly have on our rights.

  63. GerrardOfTitanServer says

    I think some judges have already been doing that and there are six of them now.

    On other issues, certainly, but not on the federal second amendment.

    cr
    If you’re unwilling to discuss and describe your methods of jurisprudence, then no progress can be made. I can give my standards of jurisprudence. It seems like you’re flatly unwilling to do so, and instead appealing to a short-sighted public good argument, and throwing the concepts and value of separation of powers and rule of law under the bus because it is politically expedient to do so. The judiciary is not the legislature, and they should not be making basing decisions based on public good arguments. That’s the point of separating judicial power from legislative power in the first place.

  64. Tethys says

    GOTS.

    I’m not talking about the second amendment. I want to first establish what our jurisprudence rules should be. I demand we first talk about the other example from the State constitution about the right to have a trial in the county of the offense.

    I believe that is jurisdiction, not jurisprudence. You don’t get to demand anything in either case. Constitutional civil rights in all states and counties fall under the same federal law.

  65. GerrardOfTitanServer says

    Tethys
    Jurisdiction – in an area, the laws of which government apply. This is a question of jurisdiction.
    Jurisprudence – the methods and values by which judges arrive at decisions in court cases.

    I did specifically mean jurisprudence. I want to know cr’s proposed jurisprudence that would neuter the second amendment so, while preserving the constitutionally protected right to trial in the same county as the offense (for that one State, assuming that protection is still even valid, I don’t know). Or, I want to know more about cr’s proposed jurisprudence that would also allow overturning the right to have a trial in same county as the offense and specifically how this is at all remotely compatible with separation of powers and rule of law.

  66. consciousness razor says

    I never said a word about the judiciary (or judges), Gerrard.

    I think it’s true that Congress has the constitutional authority to write many different kinds of gun control legislation. And I think it’s true that we should have more legislation like that.

    Do you think otherwise? Am I incorrect? Is that not allowed because of the 2A? If not, why not?

  67. consciousness razor says

    I want to know cr’s proposed jurisprudence that would neuter the second amendment so

    Leaving aside the stuff about the judiciary, for the obvious reasons…. Do you think it has been “neutered” because people can’t own nuclear bombs? Does that qualify as real balls-in-the-trashcan neutering to you or is it something else?

  68. GerrardOfTitanServer says

    cr
    Sorry. I’m not playing ball until I get some reciprocity. I’m also not playing this game of “what’s in the public’s interest”. What is your jurisprudence? Would it allow overturning the right to trial in the same county as the offense without a constitutional amendment? I’ve answered many of your questions previously IIRC, and this time I’m demanding that you answer one of mine.

  69. PaulBC says

    GOTS@54

    I hate to channel Scalia, but

    On the contrary, I am pretty sure you enjoy channeling Scalia or at least perceiving yourself to do so.

  70. consciousness razor says

    I’m also not playing this game of “what’s in the public’s interest”.

    Of course, why would you care about a “game” like that? We’re only talking about public institutions, after all.

    What is your jurisprudence?

    Such a weird question. I’m not a judge. I have no “methods of jurisprudence” of my own to describe.

    And it is beside the point. What we’ve been talking about is which laws our legislature is constitutionally able to write, given the second amendment as it is currently written as well as, for that matter, anything else in the constitution. Of course, this is also all given the separation of powers and the rule of law, but absolutely nothing constructive is being done to clarify either, when you conflate the roles of the judiciary and legislative branches. All you’re doing now is just leaning (again and even harder) on some analogy made in some article by some guy, because you have nothing better to offer and apparently don’t want to think for yourself about it. Maybe it would be a little easier to stomach, if we didn’t have to worry about, you know … people murdering each other with their fucking guns.

  71. GerrardOfTitanServer says

    What we’ve been talking about is which laws our legislature is constitutionally able to write, given the second amendment as it is currently written as well as, for that matter, anything else in the constitution.

    That sounds a whole lot like a theory of jurisprudence to me.

    Again, I’m waiting for some reciprocity. Your appeals thus far amount to “but think of the children!”. That sort of appeal is completely unmoving to me because I feel like you are practically asking me to give up the entirely of rule of law, separation of powers, and constitutional supremacy (except by change to the constitution), and I care about that sort of thing because giving up those things is tantamount to destroying civil rights for minorities. If you want to argue that the justification clause of the federal second amendment is a built-in sunset provision, then to satisfy me, you have to answer my other questions other important civil rights can survive this (utterly ridiculous) new standard that you just created on how to read and apply constitutional protections of minorities.

  72. consciousness razor says

    Again, I’m waiting for some reciprocity.

    But you don’t need to wait for me to do anything important. Nothing prevents you from simply telling us whether you think outlawing nuke ownership is something that neuters the second amendment. You could say more generally whether you think gun control laws (of any kind whatsoever) can ever be constitutional, according to whatever standard or methodology that you think is more appropriate than what you take me to be saying about it. You could try to provide some sort of a hint that you comprehend the difference between “the US Congress wrote law X” and “the Supreme Court wrote law X” and perhaps even why that matters. Or, well … you could at least do something, right?

  73. GerrardOfTitanServer says

    cr
    No. I’ve done this before, and we didn’t get it anywhere in large part IMAO because you never answered any questions of mine. I again refuse to answer any of your questions until you start answering some of mine. I won’t waste my time replying to you on this matter further if you continue to show no intention of answering any questions of mine.

  74. kathleenzielinski says

    GOTS, the fundamental flaw in your argument is the assumption that there is only one possible good faith interpretation of the Second Amendment, and it happens to be the one that you hold. Like the Bible, the Constitution is wide open to interpretation. And not everyone who reads it differently than you do is a dishonest idiot. Yes, there are some things in the text that are crystal clear — the president must be at least 35 years of age, senators serve six year terms — but not nearly as many as you seem to think.

    When multiple reasonable interpretations of the text are possible, I see no reason to adopt the one that makes it easier for mass shooters to lay hands on enough firepower to take out a mall. Nor do I think we are bound by how the framers would have understood something; as I already pointed out, their world view is almost entirely at odds with our world view.

    The Eighth Amendment bans cruel and unusual punishment. Does this mean what we in 2021 understand to be cruel and unusual, or what the framers in 1789 would have understood to be cruel and unusual? If the latter, well, South Carolina executed someone by burning at the stake as recently as the 1830s, apparently with nobody thinking that might be cruel and unusual.

    It’s not that the rest of us are dishonest. It’s that we largely reject your idea that what James Madison thought about something is the final word.

  75. GerrardOfTitanServer says

    PS:
    Here’s a freebie. It’s funny because you think you have a gotcha question, but in the way that you phrased it, it reveals that you’re probably mistaken on this too.

    I’m betting you’re looking for the answer “courts don’t write laws; legislatures do”. That’s wrong. Courts write laws. It’s called case law. (At least in any sane court system, aka court systems with some degree of binding precedent.) Thus the technical terms “case law” vs “statutory law”. There are other kinds of law too. See also, “common law”, “administrative law”.

    Again, the difference between judicial power and legislative power is the methods and values by which they’re supposed to write laws. Legislatures are supposed to write laws to promote the public good, subject to restraint by constitutional law. Whereas, courts are supposed to decide cases (writing case law) according to the merits of the individual case in front of them as judged by existing law (statutory law, case law, constitutional law, etc.), and they’re nominally supposed to exclude generic “public good” considerations except to the extent that existing law already encodes “public good” considerations.

    For example, in a case where the right to be free from unreasonable searches and seizures contradicts with one person’s notion of what is in the public good (e.g. suspicion-less roadside sobriety checkpoints), the court is supposed to take the constitutional law over a mere “public good” argument. (Of course, SCOTUS sided against me on this, but I use this example to illustrate my point and also to vent about it.)

  76. GerrardOfTitanServer says

    kathleenzielinski
    No. The constitution is flexible, in large part because they wrote it to be that way, but it’s not infinitely flexible. For example, I refuse any jurisprudence which allows a reintepretation of the first amendment’s prohibition about national churches which would allow the government to collect tithes for the Catholic church and require oaths of loyalty to the Catholic church or else face imprisonment. Similarly, there is no coherent defensible jurisprudence that would allow starting with an amendment that clearly, unequivocally, and without argument from anyone of the time, guaranteed a right X, and then turn it on its head and say that it doesn’t protect that right X at all. That is just a step too far for me because it represents the complete destruction of our constitutional framework. With that step, anything is allowed, and no step by the legislature or the courts is forbidden by the constitution. This is precisely why I’ve chosen this hill to metaphorically die on.

  77. GerrardOfTitanServer says

    The third kind. The one who has never owned nor fired a gun in his life.

  78. PaulBC says

    kathleenzielinski@77

    the fundamental flaw in your argument is the assumption that there is only one possible good faith interpretation of the Second Amendment

    I agree with that, and would add that it has certainly not always been interpreted the way it is now by most conservative judges.

    But the big problem is that it admits so many interpretations as to be useless in practice. The outcome is always going to be political, which is why I don’t see a solution other than repealing it. Granted, this is unlikely to have enough support, at least not right now. Who knows how bad things have to get before it might.

    It is certainly a very badly worded statement of a “right.” What are “arms”? Clearly not just anything one can use to fight with because there are restrictions on many items both more and less lethal than guns, and these are apparently not protected under the 2nd amendment. Also, is the point about a well-regulated militia just sort of a fun aside, or is it actually intended as a justification. Fuck if I know. Such a shame people have to die because of poor phrasing.

    What actually struck me most was GOTS claim that most people here are arguing disingenuously. Really? I mean, I cannot conceive of a good solution to America’s gun violence problem that does not absolutely involve the confiscation of at least some guns. I don’t have a problem with that. It sounds like an excellent idea to me. It doesn’t have to be all guns, but even if it was, that’s not something the affects me personally. I get along fine without any guns. (I might have some hypothetical objection to literally taking away all non-military, non-law-enforcement guns, but I’m not in a mood to pursue that thought.)

    This doesn’t alter my point that it really isn’t going to happen, at least under any near term foreseeable circumstances, nor was it something Obama or Biden ever evinced any appetite for.

    But I don’t think it’s very controversial among most commenters here that it would be good to confiscate some guns from some people, and any disagreement is one of degree, not kind. I fail to see the supposed dishonesty.

  79. kathleenzielinski says

    GOTS said:

    “Similarly, there is no coherent defensible jurisprudence that would allow starting with an amendment that clearly, unequivocally, and without argument from anyone of the time, guaranteed a right X, and then turn it on its head and say that it doesn’t protect that right X at all.”

    But that’s not what reasonable gun control, including banning large magazines, does. You’ve got this all or nothing idea where the only two possibilities are no gun control or no Second Amendment. As with most false alternatives, those are not the only two choices. Does the First Amendment right to religious freedom include the right to hijack an airplane and fly it into the World Trade Center, so long as you’re acting in accordance with your religious belief? No, of course not, and had the 9/11 hijackers been caught and put on trial, any First Amendment defense would have been laughed out of court.

    Because no right is absolute. Period, full stop.

  80. GerrardOfTitanServer says

    I agree with that, and would add that it has certainly not always been interpreted the way it is now by most conservative judges.

    This is flatly false. The overwhelming historical evidence is that all judges and other persons circa 1800 took it as protecting an individual right separate from and distinct from militia service. I have put this challenge forth many times, which is “Find me a single historical source from the period that says otherwise”, and not one has ever been provided.

    What I do know is this. It’s often said that there’s no way that the founders wanted everyone to have a gun. As I noted above, that’s complete nonsense. Not only did they just want that outcome, they required it by law! The second federal militia act of 1792 required basically all able-bodied adult white male citizens between the ages of 17 and 45 to go out and purchase (or otherwise obtain) a military grade gun, a certain amount of ammunition, and a laundry list of military equipment, under personal individual penalty of a hefty money fine.

    The only historical revisionism that is going on here is by the left, and I have no idea why.

    Really? I mean, I cannot conceive of a good solution to America’s gun violence problem that does not absolutely involve the confiscation of at least some guns.

    Because you keep repeating historical revisionism in spite of me and others debunking it thoroughly.

  81. GerrardOfTitanServer says

    But that’s not what reasonable gun control, including banning large magazines, does. You’ve got this all or nothing idea where the only two possibilities are no gun control or no Second Amendment.

    Did you miss the part where I started this thread by calling for more gun regulation, including specifically a gun owner’s license and mandatory gun owner’s training? I think you did. You’re arguing with someone else.

    I’m arguing with people here who say that the second amendment is about something other than protecting an individual’s right to own and possess modern firearms – at least to some extent. The exact boundaries are open to discussion – at least with me. What should not be open for discussion is lying about history, such as by saying it was about police, or it was about slave patrols, or it was about anything other than the protection of a general purpose individual right to guns within some constraints.

  82. Tethys says

    Gots

    What is your jurisprudence? Would it allow overturning the right to trial in the same county as the offense without a constitutional amendment?

    People are tried every day in different counties than the offense.
    Obsessing over this point of law isn’t even relevant, as court venues are not committing mass murder on a regular basis.

  83. StonedRanger says

    @GOTs #25
    I am not a democrat nor a republican, I am an american citizen who does own guns. I am not incorrect when I say no one has taken your guns. There are guns aplenty out there. I am not drunk when I say this. 13 presidential elections I have lived through and every time I hear the same old stuff. Yes, they have banned a few assault type weapons and maybe even a few high cap mags, but I will say it again YOU STILL HAVE YOUR GUNS. There are literally millions of guns in this country and for you to argue that you have somehow lost your gun rights is the outright lie of this forum. Are you honestly trying to argue that it is more important for people to own military style assault weapons than it is to limit them to try and stop the senseless slaughter of the people that is an ongoing problem? Two more mass shootings in ten days and you think talking about limiting guns is a problem? No, you are the one who is piss drunk pal, not me. We have modified the constitution before and it needs it again. Name call me all you want, it just makes you look bad.

  84. consciousness razor says

    Gerrard:

    I again refuse to answer any of your questions until you start answering some of mine.

    Alright, so I guess this is the deal then…. You can’t say anything about the second amendment, gun control laws, etc. Because of my deep and abiding insolence, you will refuse to express your own ideas about such things. That’s just the way it is now, like it or not. Oh, how I wish it were different, but if you’re really going to twist my arm, then you’ll have to shut the fuck up about all of that shit for the foreseeable future. I’ll need to write myself a reminder about this, so I won’t forget to notify you if the situation ever changes.

  85. GerrardOfTitanServer says

    Tethys
    Sigh. I was using it as an illustrative example in the hopes of showing cr that his proposed reading of the federal second amendment would lead to absurd conclusions when applied to other constitutional protections, in the hopes of arriving at a reductio ad absurdum to reject his reading of the federal second amendment.

    StonedRanger
    I have never owned or fired a gun, and I have no intention to do either. To me, this is about the preservation of constitutional norms against the attack of those who don’t care about rule of law, separation of powers, etc. Yes the constitution needs to be modified, in many many ways; it’s very far from a perfect document. I am objecting to ways of reading the second amendment like cr’s which would lay the groundwork for overturning any other constitutional protection that we don’t like without an amendment. Again, by contrast, if there is an amendment, great, go for it.

  86. GerrardOfTitanServer says

    Alright, so I guess this is the deal then…. You can’t say anything about the second amendment, gun control laws, etc.

    I’ll do whatever I damn well please until PZ or another mod tells me to stop, especially when it’s in furtherance of the truth and constitutional protections of minority rights. Piss off.

  87. says

    Again, the difference between judicial power and legislative power is the methods and values by which they’re supposed to write laws.

    Well, methods much more than values, but okay I guess.

    Legislatures are supposed to write laws to promote the public good, subject to restraint by constitutional law. Whereas, courts are supposed to decide cases (writing case law) according to the merits of the individual case in front of them as judged by existing law (statutory law, case law, constitutional law, etc.), and they’re nominally supposed to exclude generic “public good” considerations except to the extent that existing law already encodes “public good” considerations.

    Um, no.

  88. GerrardOfTitanServer says

    Crip Dyke
    I know I am far from an expert. What substantive or minor technical mistake did I make?

  89. says

    I would say that your general statement about methods & values is correct, but that it far overemphasizes values as the key distinction.

    The power of a legislature to initiate lawmaking vs. the inability of a court to initiate lawmaking is a much larger difference than any difference in values.

    This is especially true once you get beyond the USA. Taken as a statement only about USA courts vs. Congress it’s not quite as egregious, but even so values aren’t nearly as big a difference as the in/ability to initiate the lawmaking process.

    In the USA, it is at the discretion of congress to choose to create law. Even when a case has been presented to a court for a decision, if the parties withdraw before a decision has been officially handed down, even if the decision has been written, a USA court has no authority to decide the case (and thus make law).

  90. Rob Grigjanis says

    GOTS @84:

    The overwhelming historical evidence is that all judges and other persons circa 1800 took it as protecting an individual right separate from and distinct from militia service.

    Here’s some history for you;

    Political rhetoric notwithstanding, no one who understood the recent history of the Revolutionary War considered the militia the best defense against foreign invasion. [286] As a Virginian, Madison knew that the militia’s prime function in his state, and throughout the South, was slave control. His use of the word “security” is consistent with his writing the amendment for the specific purpose of assuring the Southern states, and particularly his constituents in Virginia, that the federal government would not undermine their security against slave insurrection by disarming the militia.

    https://web.archive.org/web/20000816064706/https://www.saf.org/LawReviews/Bogus2.htm

    That seems less about an “individual right”, and more about Southern states’ ability to put down slave revolts.

  91. GerrardOfTitanServer says

    Crip Dyke
    Sure. In context of the US, this is an important distinction to make. However, beyond the US, aren’t there some countries with cout systems that can initiate their own action and come to preemptive declaratory judgments without need a case or controversy before them brought by persons outside the court? I thought there were such things today. IMO, saying that judicial power must necessarily be limited to cases and controversies brought before it, and judicial power must exclude self-initiated investigations and declarative judgments, is wrong. That property is not a strictly necessary property of judicial power in the conventional separation of powers doctrine. Thus, I must politely disagree with your (highly pedantic) correction.

  92. GerrardOfTitanServer says

    Rob Grigjanis
    Yea, that article is a load of shite. This is exactly the sort of historical revisionism that I’m referring.

  93. Rob Grigjanis says

    GOTS: How about some “non-revisionist” historical references then, rather than knee-jerk “load of shite”?

  94. PaulBC says

    GOTS@84 I wrote “I cannot conceive of a good solution to America’s gun violence problem that does not absolutely involve the confiscation of at least some guns.” and you responded:

    Because you keep repeating historical revisionism in spite of me and others debunking it thoroughly.

    Hahahahaha. No, I mean are you for real? What are you saying here?

    So if only it were not for me and my historical revisionism, the guns that remain in the hands of very violent people would cease to be an actual problem.

    Are you saying that an accurate and objective explication of history would somehow stop these bullets in mid-air? Or am I a “historical revisionist” merely for promoting the view that people dying of gun violence is an actual problem?

    Anyway, as I said, you are wrong to think that I am dishonestly pretending I don’t want to see many guns confiscated. I suspect you are wrong about nearly everyone else here, but I don’t want to put words in anyone’s mouth. I haven’t see a lot of love for “gun rights” from most commenters. Yes, by all means, let’s alter the constitution in a small way, which we have a mechanism for, and use the new latitude to confiscate guns. That is my position. It’s really not a complicated one, just not politically viable right now.

  95. says

    Sure. In context of the US, this is an important distinction to make. However, beyond the US, aren’t there some countries with cout systems that can initiate their own action and come to preemptive declaratory judgments without need a case or controversy before them brought by persons outside the court? I thought there were such things today.

    Yes, but then things get more complicated because the court systems that are most free to initiate their own actions are also the systems that are most free to make law in the public interest.

    So in the US courts are absolutely constrained from initiating and also seriously constrained from acting for the public good. So in that case, you’re technically correct that the distinctions are methods & values, but dramatically overstating the difference in values because methods are so different.

    In countries like India (a common law country) and to a lesser extent Belize (also a common law country) as well as in most civil law countries (but my training mostly gave me insight into French, Italian & Romanian courts), the court systems are more empowered to initiate actions, but they are also freer to create precedent in the public interest.

    in other words the freer a court system is to initiate lawmaking, the freer it is to act on the same values expected from elected legislators.

    So in the first case of the USA and similar countries in my opinion you’re vastly overstating the difference in values in a relative sense compared to the difference in ability to initiate.

    In countries that are freer to initiate, the value differences are much less. So again your statement as applied to those countries would have the tendency to exaggerate the importance of differences in values since while the ability to initiate is less different, the importance of values & public good is much, much less different.

    Either way, either because the difference in ability to initiate is so extreme or because the difference in the role of values is much less, your statement appears to me to give a misimpression of what the most important distinctions are between jurisprudence and statutory enactment.

  96. PaulBC says

    GOTS@85

    I’m arguing with people here who say that the second amendment is about something other than protecting an individual’s right to own and possess modern firearms – at least to some extent.

    To be clear, I not going to claim I know what it’s about, primarily because it is so badly written. Probably it is “to some extent” about the individual right to own guns. Obviously, a lot of people did own guns when it was written. I can’t help thinking it is “to some extent” about a “well regulated Militia” because it uses those words. But honestly what it’s getting at with those words, I don’t claim to know. The simplest thing would be to repeal it and replace it with something sensible and appropriate to weapons as they exist today.

    I am not exactly how you get to the idea that it’s about “modern firearms” unless the framers had a time machine. It’s unlikely they would have predicted weapons at the level used in the Civil War let alone modern weapons. It’s a question for speculative fiction whether they would have changed the amendment with that kind of foresight, but clearly they lacked it. So I am not really sure what you are getting at by claiming a document is “about” something that was not anticipated at the time of its writing.

    But either away, it’s a pretty stupid amendment and I am less interested in shoehorning my preferred meaning into it than eliminating it entirely.

  97. consciousness razor says

    I’ll do whatever I damn well please

    Look, you were the one who proposed this deal, in which you refused henceforth to express your own views regarding the second amendment, etc., because I’m not feeding you some other crap that you felt like discussing instead, in a thread about the second amendment, gun control, and of course a mass shooting which just occurred.

    I’ve accepted it. (I assume it’s on penalty of you looking like a total jackass, but we weren’t particularly explicit about that.) And I do like to keep my word, so I can’t very well back out of it now, at least not without a good justification.

  98. A. Feesh says

    I mostly lurk as well, but man, someone is sure literally triggered on this thread.

  99. Tethys says

    Banning the paramilitary weapons preferred by mass murderers is not an infringement on constitutional rights. Civilians aren’t allowed under current law to possess machine guns, tanks, and entire classes of heavy ordnance. There are exceptions for collectors but these are heavily regulated.

    It is time to simply stop argueing with gun nuts and ban the damn guns.

  100. PaulBC says

    Tethys@104

    Civilians aren’t allowed under current law to possess machine guns, tanks, and entire classes of heavy ordnance.

    That’s true, and it contradicts an absolutist interpretation of the 2nd amendment. But honestly, I am sick of hearing drawn-out arguments about what is constitutional. We’ve changed the constitution before. It would not be hard to state whatever it is we think are reasonable weapons rights in a modern context, which looks very little like 1789. There could be a real debate. I mean, I’d still probably feel we hadn’t gone far enough, but things couldn’t possibly be worse than they are now.

    The constitution wasn’t intended to be treated as holy writ. The fact that there is an amendment process makes that very clear. True, a lot of proposed amendments are terrible (like anti-flag-burning) but that doesn’t mean that the process of amending is the problem and we should never do it. Think how fast a mistake like Prohibition was reversed. It took 14 years. Bush’s war has been going on longer than that.

    And no, it’s not happening. Gun lovers really do care about their guns more than they care about their fellow citizens. I realize that. Maybe another generation will change things. I have no idea.

  101. consciousness razor says

    And no, it’s not happening.

    There’s your problem right there.

    If you are “sick of hearing drawn-out arguments about what is constitutional,” I have no trouble understanding that. However, it’s much more sickening that many more people will die from gun violence because we’ve committed ourselves to a strategy that (according to you) will not happen.

    Some out there may think it’s unconstitutional (or at least argue that it is), but make no mistake: it really isn’t. We don’t need to believe it, for the same reason we don’t need to believe climate change is a hoax like other people will say: because it’s just plain false. So, we have to actually do something (not merely whining/complaining) to stand up against such bullshit and get some real gun control laws on the books (because that is a real option). And we should do that sooner rather than later.

  102. consciousness razor says

    edit: I meant a strategy that won’t be successful. It could “happen” in the sense that we’re using it, but that’s not what I meant of course.

  103. PaulBC says

    consciousness razor@106 I would be happy to see a serious program of gun control carried out with the claim that it is constitutional, though it would require the reversal of a lot of bad precedents. That will require reshaping the judiciary, which is very difficult given the current composition and lifetime appointments. But yeah, it could hypothetically happen, and it’s a worthwhile goal. (I say “claim” because whether “it is” or “it isn’t” is less about fundamental truth than about what judges decide on the bench.)

    I would be even happier to see the 2nd amendment abolished entirely. It’s certainly nothing to take pride in as a nation. God, it must make us look like idiots to the rest of the world, not to suggest it’s the only thing (in the top ten though, definitely).

    Anyway, just because I’m a pessimistic doesn’t mean I don’t hope I’m wrong.

  104. consciousness razor says

    I would be happy to see a serious program of gun control carried out with the claim that it is constitutional, though it would require the reversal of a lot of bad precedents. That will require reshaping the judiciary, which is very difficult given the current composition and lifetime appointments.

    Not sure what process you’re imagining here. This is pretty much what I had in mind….

    Step 1: No excuses or shifting responsibility to somebody else. (This seems to be the very challenging one, for politicians and pundits alike.)
    Step 2a: Congress passes a bill.
    Step 2b: The president signs it into law.
    Step 3: It doesn’t need to come with an “I’m constitutional” sticker attached or whatever, because they just unapologetically use the power given to them as elected officials in this country. But if you really like stickers, we could probably manage that without much extra trouble.
    Step 4: Wash, rinse, repeat.
    Step 5: Profit. (Obviously.)

  105. GerrardOfTitanServer says

    PaulBC
    It’s not poorly written. It was written well for its time, just as clear as any of the other amendments, but language changes. The English language changes. Just like most people can’t read Chaucer today, or even Shakespeare, most people today cannot read the federal second amendment. One needs to learn the language that it was written in. If we translate “well regulated militia” to today’s language, it’s something like “a national population that is well equipped, well trained, well disciplined, well organized for war”. If we translate the whole text into today’s language, it clearly says “because a national population that is well armed, well trained, well disciplined, well organized for war is necessary to prevent invasion and (domestic) tyranny, the individual right of each person to own, posses, carry, and use implements of war shall not be (unduly) infringed.” That is simply what the words mean.

    I am not exactly how you get to the idea that it’s about “modern firearms” unless the framers had a time machine.

    Does free speech not cover phones, the internet, etc.?

    Crip Dyke
    With all due respect, I’m really confused. I mean, this is civics 101 stuff. I’m really surprised we’re arguing about this at all. I know you’re a practicing professional, and I try to treat you with respect, but I am a loss for words here. It just seems that you’re wrong about this civics 101 stuff, and I’m flabbergasted.

    This is all about rule of law. We have separation of powers to achieve rule of law. Rule of law is the condition of society where a member of society can reasonably accurately predict in advance whether any particular action, if detected, would result in punishment by society, and where people in society are treated equally aka no special rules for some people but not others. “Rule of law” is to be contrasted with “rule by edict”, such as by a king.

    Separation of powers is a precondition for rule of law. Let’s talk about why.

    First, the legislature shall make only general laws, and not specific laws that are specific to particular individuals, particular incidents, etc. The legislature shall also not make retroactive laws. These two rules against bills of attainder and ex post facto laws are critical to maintaining “rule of law”. (These two rules are so important that they were even included explicitly in the US federal constitution before the bill of rights.)

    This leaves the problem of “who decides when specific individuals break specific laws?”. The legislature cannot (at least not acting in the role of legislative power). Thus the courts are invented. It is the primary role of the courts to decide on specific individual cases, as opposed to the role of the legislature to create broad generally-applicable rules which are used by the courts to decide individual cases. That is one of the primary differences between proper separation of legislative and judicial power.

    The remaining aspect for this discussion is like this: What if a court is deciding a specific incident and how the laws apply, and then the court declares that while the person broke no specific prior law, the person shall still be punished. Or conversely, while the person clearly broke a specific law, the person shall remain unpunished. These sorts of scenarios are violations of “rule of law” as I defined it above where one of its two principle characteristics is that a person should be able to accurately determine in advance whether an action would be punishable or not. It is for this reason that courts should not decide cases according to what is best for society, and they must restrain themselves, ala the standard principles of judicial restraint, to decide cases only according to the prior published rules in order to uphold the expectations of members of society, and thereby uphold the rule of law.

    Allowing the same power group, the courts, to also make declaratory judgments about cases and controversies that have not yet arisen is perhaps maybe arguably a case of legislative power. I could probably argue that both ways. It seems to fit aspects of both kinds of power as I’ve laid it out here. Haven’t thought too much about it.

    However, focusing on the proactive vs reactive use of power as a principle defining characterstic of the difference betwene legislative and judicial power is so far off the mark that I don’t know what to say. It’s superficially correct as a pithy description of the difference, but it’s obviously wrong in the context of deep understanding about the subject. The fact that most (or all?) exercises of judicial power are reactive, and all legislative exercises of power are proactive, is but a consequence of the real primary differences which I described above.

    Finally, let’s talk about the principle of judicial restraint. It’s not really a method. It’s really a value. It’s a sacred value held by judges, and held by members of society at large regarding the judicial practice, and what differentiates it from the general discretionary power of legislative power. The difference between rule of law and something else is a cultural difference, founded on the cultural support for judicial restraint. It takes a long time to build that sort of culture where rule of law and judicial restraint are respected by most people, and it takes a long time to rebuild it if it becomes lost.

    PS: At some abstract level, a single body could be invested with legislative power and judicial power. I wrote above that the legislative body cannot also decide cases, but at some high abstract level, it could and not strictly be a violation of these principles. However, as a more practical matter, it is difficult to create a culture where we can rely on people to reliably switch between a legislative hat and a judicial hat, to so drastically change their way of thinking. Also because of mundane issues like conflicts of interest. Thus, I often speak as though it is strictly necessary requirement for the legislative power and judicial power to be invested in entirely different groups of persons.

    Tethys

    Civilians aren’t allowed under current law to possess machine guns, tanks, and entire classes of heavy ordnance.

    Wrong on all counts, actually.

    Machine guns can be legally owned in many but not all US states. Federal law permits it as long as the person passes their background check, pays the rather large licensing fee (“stamp tax”), and the machine gun in question was made before the magic year, 1980 approx. Some US states have state laws that forbid it, but many don’t.

    There are tanks in private ownership. Not many, but there are. (Admittingly, they almost certainly don’t have ammunition for the main cannon of the tank.)

    Heavy ordinance? Depends on what you mean. High explosives? High explosives are commonly available to a select few in certain industries, such as mining. Surely it’s easy enough in some of those places to make off with a significant quantity of material. There’s also fertilizer, which is everywhere, and fertilizer is just a few steps away from being a powerful explosive too. I’m actually really surprised that we don’t have more incidents involving large bombs compared to mass shootings. High explosives in the hands of so many people is what really scares me. Far more potential for death compared to just having a gun and ammo. (High explosives is also something that the founders would be almost completely unaware of. Remember that high explosives as a thing were only discovered circa 1847.)

    PS: Ever read the constitution and get to the part about letters of marque and reprisal? The constitution itself allows congress to authorize private mercs on the sea to wage war in their name. That implies private ownership and operation of a ship of war, cannon and all. Now that’s a wild idea which is a manifestly horrible idea in today’s context (and I’m not asserting that the second amendment defends such ownership, but I am pointing out historical context).

  106. says

    What if a court is deciding a specific incident and how the laws apply, and then the court declares that while the person broke no specific prior law, the person shall still be punished. Or conversely, while the person clearly broke a specific law, the person shall remain unpunished. These sorts of scenarios are violations of “rule of law” as I defined it above

    How do you think we even got torts? How do you think the distinctions between assault & battery were created?

    Yes. People were judged not to have violated the law and then punished anyway. Common law is littered with such examples.

    one of its two principle characteristics is that a person should be able to accurately determine in advance whether an action would be punishable or not. It is for this reason that courts should not decide cases according to what is best for society, and they must restrain themselves,

    How do you think we got this law against prosecution without fair notice? The courts decided it was in the best interest of society. How do you think contract law got the postal service rule?

    Look, you made the assertion that there are two differences between courts and legislatures, one the broad category of “method” the other of “values”. You asserted that courts don’t allow public interest to affect the creation of jurisprudence. But this isn’t true. Instead it’s a matter of degree.

    When you’re talking about lawmaking, you’re not talking about courts handling ordinary cases. You’re talking about cases that address issues of first impression or of ambiguities in how different authorities have handled a question. When the law is ambiguous or unwritten, as is the case whenever judges are actually making new law, the courts are at their maximum freedom to act in the public interest. And they do. All the time.

    This isn’t about whether you were “right” in a strictly technical sense. Your writing to which I first replied “Um…no,” placed a heavy emphasis on the so-called inability to act in the public interest and did not mention the heavy restrictions on courts initiating the lawmaking process.

    In my opinion this focus on the “value” of the public interest to the exclusion of any mention of the distinction in the ability to initiate the lawmaking process was such a distortion of the relative importance of those different distinctions between legislative & judicial roles that I thought it misrepresented the distinctions to your readers.

    I take it you would concede that you did not specifically mention the inability (absolute in the USA, a relative inability elsewhere) to initiate lawmaking. I consider that a major failure.

    Consider, if you will, what it would look like for the courts to have an unfettered ability to initiate lawmaking. Would that change the essential nature and function of the courts more or less than maintaining the reactive character of courts but telling courts that when judicial lawmaking occurs – i.e. when the law necessary to determine a case at issue is ambiguous or not yet written – the courts should consider public interest first?

    In my opinion granting the courts unfettered ability to initiate lawmaking is a much bigger change than continuing to restrict lawmaking to only cases brought before them and only issues of law raised by a party before them, not by the court itself, but granting the courts unfettered ability to act in the public interest when an issue of law is raised by others to the courts.

    Consider Roe v. Wade and its successor Planned Parenthood v. Casey, for example. (Or the Morganthaler cases in Canada that also addressed the topic of abortion.) The courts did not, and in the USA could not, go out of its way to tell people what the law on abortion is or should be. But when issues were raised about whether the respective constitutions of the USA & Canada permitted legislative authorities power to ban abortion the courts’ vision of the public good weighed heavily on how those cases were decided.

    Ultimately this is a matter of opinion about whether you fairly characterized the relative importance of values vs. the ability to initiate.

    In my opinion, entirely omitting the legislative/judicial distinction with respect to the ability to initiate lawmaking while spending multiple sentences on the supposed inability of the courts to consider the public interest mischaracterizes to your audience which distinctions between legislative and judicial powers are the most important distinctions.

    And you can tell me I’m failing civics 101 when I point out that ability to initiate is an important distinction between courts and congresses, but my opinion is entirely unchanged by what you’ve written.

    Indeed, you don’t even quote any specific part of what I wrote to say, “Here is where you said something wrong.” You just say that I’m wrong and then go on about judicial restraint. I never said that there wasn’t judicial restraint. I said and continue to say that you’ve misrepresented which distinctions between legislative & judicial branches are the most important ones in understanding their separate natures.

  107. hemidactylus says

    The 2nd amendment is what it is, meaning nobody agrees what it is. Per jurisprudence it has evolved to mean local jurisdictions cannot be restrictive because incorporation. Good luck turning the clock back given the makeup of SCOTUS. And good luck scrapping portions of the Bill of Rights. Plus the gun genie is completely out of the bottle. All we can do is live with the dystopian reality. We can’t clean the slate.

    Oddly progressives fight futilely against prevalence of guns, but how could a revolutionary left succeed without them?

    All said hopefully there is a way to at least impose some sanity with regulations on assault weapons, ammo capacity and ammo itself from the federal level downward. The US is a crazy quilt of localized permissiveness with castle doctrine, concealment, and open carry nuttery. I’m kinda moderate myself leaning toward some but not absolute restrictiveness.

    Democratic presidents and congress majorities are an ironic boon to the guns and ammo industry. The proprietors can use fear as an advertizing tool and get people to hoard ‘cuz they’re coming for our god givin’ guns’. So cynical. Nobody with effective power in government has the backbone and stamina for that. But the gun lobby will exploit fear to the max. Cui bono?

    At least people on this blog tend to be more consistent in application of 1st and 2nd amendments. Catblogger and ilk are freeze peach zealots but ardent gun controllers. Every word is sacred.

    IMO personal protection and hunting are legitimate reasons to have appropriate firepower. Speaking of well-regulated, rednecks with shotguns control deer and hog populations. So guns provide ecological benefits if done right. One doesn’t need an Uzi for personal protection.

  108. hemidactylus says

    @114- Crip Dyke
    The civil rights movement was incrementalist and victory, so to speak, was incomplete. It was hardly revolutionary unless you include the gun toting Black Panthers under its umbrella.

    I think it was Behind the Bastards that put the image of gun-toting leftists in my head. I don’t condone such methods, but I cannot think all leftists are against guns or using them when push comes to shove. One cannot entirely overturn a system with rational, persuasive argument. Reactionaries are certainly well armed and not very persuadable.

  109. hemidactylus says

    Hmmm…I’m not sure if I’m arguing for incrementalism (however woefully inadequate…CRT and wokeism is incremental too), because revolutionary leftism implies firepower OR that the only way to overturn the enshrinement of gun culture is through a leftist revolution (ie- guns). What would Che do?

  110. snarkrates says

    GOTS, Look, ultimately, it comes down to one question: Is it acceptable that ~40000 people a year die unnecessary deaths due to firearms? If those are acceptable losses to you, then I think you need to look at your priorities. If not, then as a supposedly responsible owner of firearms, it should be incumbent upon you to propose effective mitigations to lessen the toll if you do not want people to implement measures you consider an infringement upon your rights.

    The Boulder and Atlanta shooters are poster children for effective background checks and waiting periods. Super-majorities of American voters favor such measures. Majorities favor bans on AR-15 type assault rifles–just the sort of ban that Boulder had and which was overturned just weeks before the massacre there. Something needs to change. Either lead or get the fuck out of the way.

  111. snarkrates says

    Hemidactylus: “One cannot entirely overturn a system with rational, persuasive argument.”
    Cough, Cough. South Africa. Cough, Cough.

    Cough, Cough. The British Raj. Cough, Cough

    Cough, Cough. Ferdinand Marcos. Cough, Cough.

    Sorry, must have a tickle in my throat.

  112. PaulBC says

    GOTS@110

    Does free speech not cover phones, the internet, etc.?

    Should I conclude, using this brilliant logic, that the First Amendment is “about” the individual right to use deep fakes to persuade people? This kind of thing was unanticipated at the time and would have been tantamount to sorcery. Clearly, it is related to other forms of fraud or libel and potentially addressable in the context of the First Amendment, but it is ludicrous to claim that the phrase “freedom of speech, or of the press; or the right of the people peaceably to assemble” is “about” the use of deep fakes.

    Note that potentially, you could have an entirely innocuous purpose for making a very plausible video of something that did not really happen and put words into someone’s mouth that they didn’t say. It could be for entertainment, an educational reenactment, or satire. All of these purposes would have made sense in 1789, but to address the problem of deep fakes would have seemed ridiculous or at least impractical at the time even if someone proposed the idea. That’s why we revise laws in view of technological change.

    The difference between firing off multiple rounds per second is likewise one of kind and not degree. It was unanticipated and would have likewise seemed not worth addressing even if it had been brought up as a hypothetical. Meanwhile, we actually do restrict some weapons such as explosives and heavy artillery. The 2nd amendment provides no guidance at all for where we drawn the line, and yet we do.

    By the way, I think the wording of the First Amendment is quite good, but still there are new problems that are going to require rethinking. (I.e. a libelous claim, even a caption on a realistic photograph is mere assertion, but a deep fake is indistinguishable from actual evidence to many observers. This is a new problem and we cannot shoehorn old laws to fit it.)

    [The 2nd amendment is] not poorly written. It was written well for its time, just as clear as any of the other amendments, but language changes.

    Sorry, no, but you are wrong. The phrase “A well regulated Militia, being necessary to the security of a free State” is introduced without any indication of its relationship to the rest of the amendment. Is it restrictive or descriptive? Fuck if I know.

    Maybe some language wonk can convince my that there is an implied conjunction here that would have made the connection unambiguous in 1789. I sort of doubt this, because I have read very clear prose from the same time period and have never had to guess why a noun phrase is introduced like that.

    That aside, language does change, which is yet another good reason to update phrasing, or else we’d all be reaching for a bare bodkin simply out of frustration.

    Finally, I am a lot more interested in empirical cause and effect than in founder worship. You know why there are so many senseless acts of violence in the US compared to similar nations? NYT says it’s the guns and there is data to prove it. Gee, who’d a thunk it.

    So to get to the point, I am a lot more interested in saving lives that circle-jerking over aged parchment. But I know that such a statement makes me un-American. Don’t mind me. Go back to the circle-jerk.

  113. PaulBC says

    hemidactylus@115

    I don’t condone such methods, but I cannot think all leftists are against guns or using them when push comes to shove.

    When push comes to shove, this leftist (or “leftish” at least) is getting the hell out of here. I have my exit ticket prepared, though I don’t have my bags packed. Sorry, I don’t do failed state.

    Other than that, I agree with you that nearly any solution to growing gun violence seems infeasible. I am less inclined to consider the Bill of Rights inviolable. Other parts of the constitution have been altered by amendment. I guess it really depends on what price we’re willing to pay for “exceptionalism.” Woohoo! We’re an exception all right. Not in a way to be proud of, though, but I guess a lot of people think so.

  114. hemidactylus says

    @118- snarkrates

    Well sometimes the rhetoric here is of the burn it all down or wipe the slate clean variety. That drastic a change, though probably not seriously intended, implies drastic measures (implying weaponry and violence).

    Was the South African system entirely overturned with no lasting remnants of apartheid racism?
    https://en.m.wikipedia.org/wiki/Inequality_in_post-apartheid_South_Africa

    https://www.nytimes.com/2017/10/24/business/south-africa-economy-apartheid.html

    “ “We never dismantled apartheid,” said Ayabonga Cawe, a former economist for Oxfam, the international anti-poverty organization, and now the host of a radio show that explores national affairs. “The patterns of enrichment and impoverishment are still the same.””

    With post-Marcos Philippines perhaps an improvement but how much systemic continuity?

    Yeah the Raj left India but what constraining post-colonial legacy remained and partition itself was far from peaceful.

  115. PaulBC says

    CR@109

    It doesn’t need to come with an “I’m constitutional” sticker attached or whatever, because they just unapologetically use the power given to them as elected officials in this country.

    No, but it can be declared unconstitutional . Given the current composition of the federal judiciary, it is likely to be. After which point, it ceases to be law.

    I am not sure why you consider this point negligible. It has happened many times with many laws. That does not mean I do not support congress trying to pass such laws anyway. Sure, go ahead.

  116. outis says

    Now that was a nice long thread.
    As someone watching this from the outside (very much outside, there’s an ocean between us and let’s be thankful for that), allow me to state something obvious.
    I’d venture to say that the main problem is not about guns or no guns, too many people in the US today simply suffer from a near total lack of care about their fellow citizens.
    People die with holes in them? Who cares, I wanna my gunz. Other people die from virus? Dun care, dun wanna wear a mask, and sanitizers are fer sissies an communists. And so on.
    A complete unwillingness to give up the smallest sliver of “privilege” (let’s call it that, to define it exactly would be long), even if other’s lives are put in danger and wasted on an industrial scale, while the rest of the world watches aghast. An endless stream of babble, forcing equivalence between deranged attitudes and simpleminded wishes against seas of spilled blood and horrifying human misery.
    Mind you, there are many like this, but I do believe they are still a minority: most people are normal, reasonable citizens. But the crazies have managed to hijack the ship, and I see no solution in sight, even as the mountain of corpses grows daily.
    I am sorry.

  117. PaulBC says

    outis@123 Yes, but.

    In this case, even if we were just as mean, selfish, and spiteful, simply making it a lot harder to get guns would in fact reduce the number of gun deaths significantly. There is data to support this claim.

  118. Tethys says

    Oy, reading Gots shoddy logic is like argueing with Quidiots.

    First he claimed we can’t ban the guns being used as mass murder tools because of militias and the 2nd amendment.

    When it was pointed out that we ban things from common civilian use all the time, without infringing on the 2nd amendment he writes long niggling paragraphs about the (highly regulated) exceptions to the general law for civilians.

    The reality where zero mass murders are happening using machine guns and tanks doesn’t seem to register in this line of ‘thought’.

    Now he claims we can’t ban the assault rifles because…. Fertilizer can be used to make bombs?!

    Bombs could be made from many common household products, but in the face of 16 new deaths this week from 20 something year old men with assault rifles, bleach is not the fucking problem. How obscene.

  119. PaulBC says

    On the language issue specifically, I concede that a “being” phrase like that can have a clear meaning. For example, you can begin a will “I, John Doe, being of sound mind, declare…” and this carries more weight than “I, John Doe, being a silly ninny who is not to be trusted at all, declare.” The phrase is descriptive of John Doe and has bearing on how seriously to take the ensuing text.

    But in this case of the 2nd amendment, you still need to “connect the dots” as GOTS attempted in a previous comment. Yes, if you fill in “because” and so forth, you get an unambiguous statement, so why didn’t they?

    All I gather is that just as John Doe is of sound mind, a well regulated militia is apparently necessary to the security of a free state. Both assertions are there.

    I understand why I need to know about John Doe’s sanity. But I still don’t see the connection here. If hypothetically you were to change your mind. “Oops, we were wrong.” Or “Oops, ‘scientists have discovered'” that a well regulated militia is not necessary after all, would that affect gun rights? I.e., are gun rights contingent on this claim or covered by more fundamental rights, such as with freedom of speech.

    In practice, I think a lot of gun owners consider personal security more than anything in their purchase of guns. Traditionally, both this and hunting have been considered legitimate reasons for gun ownership. But that’s not addressed in the wording of the 2nd amendment at all. So what exactly are they getting at with this claptrap about militias?

    It seems to lie somewhere between a justification and an aside. But suppose you could remove it as a justification. Does that mean the government still must not “infringe” on this “right” or are there actually other reasons for it? It is badly written the way a disingenuous essay is badly written.

    Why does the writer believe such a right exists? Is it solely because of this well-regulated militia? (And yet I have seen “free states” in my estimation that secure themselves with a standing army!)

    If you are justifying this supposed right solely on militias, make that point clear. Or are there other unstated reasons (e.g. self-protection and sustenance). If so, why is the militia canard given prominence and the other reasons left out.

    When I read this, I feel the author is trying to pull a fast one. It was as weaselly then as it is today.

  120. blf says

    As I’ve pointed out before, the second amendment is ambiguous, “The meaning is opaque. Courts have decided both ways, that it is only a collective (milita) right, and that is (also?) an individual right.” The immediate problem is the commas (three in the official version), with the result “the official version of the damn thing is utterly opaque and indecipherable, so focusing on what it ‘means’ gets you precisely nowhere”.

  121. Tethys says

    A civilian militia makes sense within the context of the American Revolutionary War. Calling up the local militia in case of foreign invasion has long been obsolete.

    It is now the National Guard, which is the civilian branch of the U.S. Military. All the kowtowing about rights is just a smokescreen for deflecting from the toxic masculinity + assault rifle body count.

  122. snarkrates says

    Hemidactylus,
    The regimes in S. Africa, India and the Philippines were utterly different after the changes in question. That is what a revolution does. It does not make things perfect because these systems deal with people.

  123. GerrardOfTitanServer says

    Crip Dyke
    I’ll have to review my literature on civics, but all I can say is that I still strongly disagree, for the reasons that I already gave. I still believe that proper judicial restraint is incompatible with judges deciding cases based on their own analysis of what is in the public good in nearly all cases where case law is being made. Again, it is the role of the judge to be a neutral umpire according to the existing laws as best as they can, and it’s the job of the legislature to answer the general question “what should the laws be”.

    snarkrates
    I have never owned not ever fired a gun. I said we should have universal gun owners training courses and licensing.

    PaulBC
    If you don’t see a connection, then I don’t have a problem with you. You wouldn’t try to use the first clause to limit the second. My contention is with cr who does see a connection, and is trying to use the first clause as a limiter.

    Tethys
    Again, you claimed that we already ban machine guns, tanks, and explosives for civilian ownership and possession. I pointed out that you were incorrect on all counts.

    Never did I make a ridiculous argument like “we can’t ban machine guns because fertilizer is widespread”. Please stop treating me like a garden variety gun but and strawmanning me.

    The National Guard is not the whole militia. It’s only part of the militia. Even today, federal law defines the militia as consisting basically of all able-bodied make citizens between the ages of 17 and 45. I posted a direct link to the codified federal law upthread. This is how the militia is defined today, and this is basically how the militia has always been defined.

    Please stop making patently false and easily rebuttable claims

  124. says

    I still believe that proper judicial restraint is incompatible with judges deciding cases based on their own analysis of what is in the public good in nearly all cases where case law is being made. Again, it is the role of the judge to be a neutral umpire according to the existing laws as best as they can, and it’s the job of the legislature to answer the general question “what should the laws be”.

    What I hate about talking with you, GerrardOfTitanServer is that you never seem to really understand what other people are saying.

    I did not say that questions of public good should common.

    What I said was that when comparing the similarities and differences between legislatures and judiciaries, they are more different in how and when they can and do make law than they are different in the values that they hold.

    This is not the same as saying that there are no differences in values. Just that the difference between legislative work and judicial work is characterized less by values than by the initiating/responding distinction (among others).

    You seem to think that I’ve said something that conflicts with this statement:

    I still believe that proper judicial restraint is incompatible with judges deciding cases based on their own analysis of what is in the public good in nearly all cases where case law is being made.

    But I have made no such conflicting statements. I merely said – and still maintain – that if you’re trying to explain the difference between a legislature and a judiciary, “This one cares about the public interest and this one does not,” is neither the most helpful nor the most important distinction, and, ultimately, isn’t even completely true. The judiciary holds the public interest in high esteem, but the legal community actually believes that judicial restraint is in the public interest.

    But honestly, I don’t expect you to understand what I’m saying anymore. In the future, perhaps if you disagree with something I’ve said you could do me the favor of actually quoting the part that I disagree. Having you tell me that I don’t understand Civics 101 when you don’t even appear to understand a 4 paragraph comment upon which you’re basing your judgement isn’t any fun for anyone.

    There are many differences between legislative law making and jurisprudence. I think it misrepresents the situation for you to insist that the primary distinction is that judges don’t care about the public interest. I think that if you took any classes in any law school on statutory interpretation or philosophy of law you would also agree that there are many differences and that some of those differences are more important in defining the judiciary than a lack of concern for the public interest.

  125. says

    This statement appears to have some language cut out:

    In the future, perhaps if you disagree with something I’ve said you could do me the favor of actually quoting the part that I disagree.

    I think I accidentally cut out a couple words. Consider the sentence above, in its context, to actually read thus:

    In the future, perhaps if you disagree with something I’ve said you could do me the favor of actually quoting the part that I wrote with which you disagree.

  126. snarkrates says

    GOTS, those are rather vague recommendations.

    Should the training be one-time or yearly? Should it be free or should people be charged a fee?

    Licensing? Again, what are the terms. Should applicants be required to undergo mental health/personality screening? Should background checks be universal, and how deep should the check go?

    What about waiting periods? The two most recent mass shootings could have perhaps been avoided by requiring waiting periods.

    And of course, none of this is feasible in any case, as the gun humpers refuse even the most limited controls or mitigations.

    What about the idea that everyone who owns a gun must purchase insurance? It’s required for a car. Why not for a gun?

  127. PaulBC says

    GOTS@133

    If you don’t see a connection, then I don’t have a problem with you. You wouldn’t try to use the first clause to limit the second.

    Correct. I’d prefer to see the entire amendment repealed, though to be frank it doesn’t bother me if people do tie the clauses together in an attempt to claim constitutionality of reasonable gun control laws. I would rather have restrictions on guns than adherence to some sacrosanct text. Unfortunately, right now, the “individual rights” side has clear dominance where it counts in the judiciary and real people die as a result. Correlation may not be causation, but statistics are consistent with a causal effect, and the likely result of restricting gun ownership would be fewer gun deaths (and not a woeful lack of “good guys with guns” or the end of our current armed and “polite” society).

    But if you’re OK with no connection between the part about a well-regulated militia, then what is it there for anyway? Can you strike it out without changing the set of hypothetical laws that would or would not be constitutional under the edited amendment (serious question for GOTS if he wants to answer)? If so, I would still have to argue that it is badly written by any definition. They might also have noted in passing that when Ol’ Jed gets a hankerin’ for squirrel, he reaches for his shootin’ iron. I mean, that’s another reason, too. I’m on board. Even Thoreau ate a woodchuck though he regretted it.

    But is the right contingent on these observations about what you can do with guns? The text suggests it might be or might not be, which is why I say the amendment is badly written.

    Look, I’m not lying. I fantasize about digging up Charlton Heston and prying the gun from his cold dead hands. The funny thing is I grew up with some people who had guns. There was a farmer in an adjacent property who had a 22 (as my older brother identified it) for pest control. I saw him use it on trapped groundhogs. We had neighbors who were deer hunters. That’s the suburban Philly area in the 70s, not the Wild West. Actually, when I play the scene in my head of these guns being confiscated, I think “Nah, they’re OK.” But really that’s their problem not mine.

  128. Tethys says

    Pointing out that there are very highly regulated instances of civilians owning tanks and machine guns does not change the part where they are in fact banned to civilians.

    You can’t go to your local sporting goods store and purchase banned firearms.

    Similar GOTS argument about militias. The militia consists solely of people who join it, not every able bodied US adult as he is claiming.

  129. StonedRanger says

    My son will be glad to know that the national guard is for defense from ‘foreign invasion’. While he was in the Wyoming National Guard he was sent to Iraq for a year and Kuwait for a year. He will be thrilled to know he was defending those of us at home from foreign invaders. Somehow, that never came up in his mission briefings before he was sent to either country.

  130. Kagehi says

    @121 hemidactylus

    Sorry, but I try to actually learn from history. And history says, “Unless you have a damn replacement government, already mostly working, and with a fairly clear idea what you are going to do after you win, 99.999% of the time your ‘new government’ will just be another dictatorship, which you will have to overthrow again.” Only a complete fool leaps to, “Guns will solve this!”, as anything on the first 500 options on the list to try first, and, only someone completely and utterly delusional would con themselves into thinking that the “restoration” of such a nation into something better won’t take time, effort, and be JUST AS INCREMENTAL. So why burn it all down, and risk losing all the shit worth keeping, if you are going to, no matter what solution you try, including full on war, spend the next 50-100 years picking up all the f-ing pieces anyway? To use two British terms I have picked up over the last year, the result would be pants, and the people trying to it completely mental. (I.e, invariably garbage from the beginning, and three fries short of a happy meal.)

  131. GerrardOfTitanServer says

    Crip Dyke

    What I said was that when comparing the similarities and differences between legislatures and judiciaries, they are more different in how and when they can and do make law than they are different in the values that they hold.

    While I am sometimes guilty of not taking sufficient time to listen, this is not one of those times. I understand perfectly well what you’re saying. It is not a matter of unclear communication. I just think you’re wrong. You say that this other difference is a more important and more fundamental difference. I disagree. I think you’re wrong. I think that the difference that you identified is far less important compared to the differences that I’ve identified in the context of the fundamental concepts of “rule of law”, “separation of powers”, “judicial restraint”, etc. You can keep making your point in as many different ways as you want, but I’ll probably still keep disagreeing.

    PaulBC
    What’s the first part there for? In large parts, rhetorical flourish. It’s common practice even today to add rhetorical flourish to laws. Historically, while this sort of rhetorical flourish has no other example in the US constitution, it was present in many State constitutions of the time. See: http://www2.law.ucla.edu/volokh/common.htm

    I might also add that the most reasonable way to interpret the second amendment as a judge is that the rhetorical flourish is actually an instruction to the judge saying “for the sake of interpreting the operative clause of this law, you must assume that the justification clause is true”. So, it’s a slight modifier on the operative clause, but not as a sunset provision which can be invoked by congress or judges, as some people here think.

    Again, I think the many examples in the link that I just provided adds a lot of clarity to this issue.

    Tethys

    Pointing out that there are very highly regulated instances of civilians owning tanks and machine guns does not change the part where they are in fact banned to civilians.

    For tanks, maybe. I don’t know enough. For machine guns, they are no so heavily regulated that “ban” is a fair description. In the US states that allow it, it’s actually pretty easy to get a machine gun as a normal person. You just have to pass the ATF background check, pay like thousands of dollars for the application, and voila, you have a license to own a machine gun. This avenue is limited to machine guns made before circa 1984, but that’s about it.

    Similar GOTS argument about militias. The militia consists solely of people who join it, not every able bodied US adult as he is claiming.

    No, the militia consists of basically exactly what I said it does, and this federal legal definition of the militia is basically unchanged for the last 200+ years. The only significant change was expanding it to include non-white people who match the other criteria.

    Again, here’s current federal law.

    www DOT law DOT cornell.edu/uscode/text/10/246

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    Using the plural “militias” is usually a dead giveaway that the speaker doesn’t know what they’re talking about, or they’re using the term according to the modern informal sense instead of the formal legal sense. There is only one militia of the United States, being composed of the militias of the several States, and there is only one militia of each State.

    Circa 1800, the typical thing they did was to provide extensive training only to a small portion of the militia, just like we do today. The National Guard, aka “the organized militia”, has a long historical precedent in American history. That too is little changed from circa 1800.

  132. PaulBC says

    GOTS@141 Your link does provide some interesting context. I still say the 2nd amendment is badly written, though it may have followed standards of bad writing found in contemporary state constitutions.

    “for the sake of interpreting the operative clause of this law, you must assume that the justification clause is true”.

    And as I noted in passing, I don’t think it is. Most modern democracies have a standing military, not a citizens’ militia. They are just as free as we are here in the US.

  133. Tethys says

    Yet we in fact have an all volunteer military, despite the legal definition of militias.

    The amendment as written applies to the historical context of Redcoats confiscating the arms of rebel militias in 1774. There were also Hessian troops stationed here, hired by King George.

    Banning one modern class of weapons that is a demonstrated public health hazard (and has no practical function outside of a war zone) is not an infringement on 2nd amendment rights anymore than the current regulations and requirements applied to owning machine guns.

  134. PaulBC says

    GOTS@141

    Using the plural “militias” is usually a dead giveaway that the speaker doesn’t know what they’re talking about,

    Eh? Maybe, but it’s perfectly reasonable plural. You can find multiple Civil War military units that went by the name of militia (and probably ate goober peas but I digress). If several joined together in a battle, or fought against each other, what else would you call them but “militias”? (a dictionary search supports this plural as well as the alternative “militiae”).

    Yes, it’s a less common use, like the plural “peoples” in “peoples of the steppes”, making it clear that these people were divided into groups, each considered a people.

    It’s actually a fairly useful word, maybe not for this discussion, but when discussing unstable regions, there is very often fighting between very distinct groups, each styled as a “militia.”

    (Sorry, getting pointlessly pedantic here, but seriously? Next are you going to start dismissing people who think the “A” is for “assault” when the cool kids know it’s “ArmaLite”? I mean I guess if I get hit with a bullet from one, I’ll know enough to say “O, I am slain by an ArmaLite!” That’s what counts. It would be so embarrassing to go down with the phrase “assault rifle” on my lips.)

  135. GerrardOfTitanServer says

    Grigjanis

    Brief recap.
    https://web.archive.org/web/20000816064706/https://www.saf.org/LawReviews/Bogus2.htm

    It’s very odd that this author is making an inherently originalist argument, and specifically author’s intent argument. What strange bedfellows can be made from motivated reasoning. The author of this paper argues that the authors and ratifiers of the federal second amendment had hidden knowledge and intent, hidden knowledge and intent which contradicted all of the authors’ and ratifiers’ public statements on this matter. From this, the author of this paper argues that the federal second amendment should be interpreted by modern judges according to this hidden knowledge and intent of the authors and ratifiers even when it is flatly contradicted by the public statements of these authors and ratifiers which almost universally said something else. This is a ridiculous argument. Even if the author is correct about all of the underlying factual and historical claims, this conclusion cannot follow. The insurrectionist theory may be a “dismal picture”, but that is the picture painted universally in public by the law’s authors and ratifiers. When it comes to how a judge must interpret a law, original plain text public meaning, and original widespread public knowledge of authors’ and ratifiers’ intent, must always take priority over secret and hidden motives of the authors’ and ratifiers’. To suggest otherwise is undeniable folly of the highest order.

    The author of this paper is also incompetent or a liar. They say that James Madison did not make clear publicly his position about the federal second amendment, and yet I did find this quote about individual gun rights above in the context of the militia and law enforcement, and yet this author of this paper does not so much as mention it. This error is particularly egregious because the author of this paper emphasizes so highly the ratification debates in Virginia between James Madison and George Mason, calling both out by name, and this quote that I provided comes from the very same people, in the same Virginia State congress ratification debates, as recorded in official records. Somehow, the author of this paper fails to mention this exchange that I cited earlier, where both James Madison and George Mason provide unequivocal support for individual gun rights, and they also equate the militia with the people, and they both do so with explicitly insurrectionist-theory terms and examples. Again, is the author of this paper unaware of this quote, thereby making the author incompetent? Or did the author choose to omit this highly damaging piece of evidence for their thesis, making the author dishonest? I don’t know.

    While this author is not the first to promote the so-called “collective right” interpretation of the federal second
    amendment, the author still does so, and it mystifies me every time I see it. It’s nakedly ridiculous on its face.
    Ungenerously, it neuters the second amendment into a do-nothing amendment which could never be invoked in a court case, which is a ridiculous conclusion because surely the authors and ratifiers of the second amendment wrote it to do something in a court case, or more generously, they rewrite the plain text of the amendment from “rights of the people to keep and bear arms shall not be infringed” to “powers of the several States to operate militia forces shall not be infringed”. This move has always been farcical and nakedly transparent as nothing more than a desperate attempt at motivated reasoning by those who are desperate to avoid the undesired outcome without fatally damaging jurisprudence. However, they fail in their purpose. This attempt to reinterpret the text is so disingenuous that they may as well openly call for the judges to overthrow the amendment – it’s just as damaging to rule of law, but they like to pretend otherwise. It’s willful ignorance and self-delusion.

  136. GerrardOfTitanServer says

    PaulBC

    And as I noted in passing, I don’t think it is. Most modern democracies have a standing military, not a citizens’ militia. They are just as free as we are here in the US.

    I think you missed my point. I didn’t claim that fact as true. I said that the first clause of the second amendment should probably be read as an instruction to judges to assume, for the sake of argument, that the assertion of the first clause is true while interpreting and applying the second clause. Doesn’t matter if it’s actually true or not. That’s what the law says.

    Re: “militias”. Yes, you are correct that it’s not always incorrect (I even used the plural form in my response above), but I find that many speakers on this topic give away their ignorance by incorrectly using the plural form “militias” in the specific context of discussions around the second amendment.

    Tethys

    Banning one modern class of weapons that is a demonstrated public health hazard (and has no practical function outside of a war zone) is not an infringement on 2nd amendment rights anymore than the current regulations and requirements applied to owning machine guns.

    On that, I mostly agree.

  137. John Morales says

    From the above:

    So why don’t these measures ever get turned into law? That’s in part because they run into another political issue: Americans, increasingly in recent years, tend to support the abstract idea of the right to own guns.

    Gerrard is an example of that.

    This topic has been discussed here in the past; I’ve determined it’s pointless to try to change such people’s minds with mere facts.

  138. GerrardOfTitanServer says

    No, I’m not an example of that. I’m not really in favor of gun rights, abstract or not. I’m in favor of rule of law, constitutional supremacy, separation of powers, judicial restraint, etc., because that’s vital aspect to protecting civil rights against misguided measures from the majority. It could be about something other than gun rights, and I would argue just as voraciously against lies and historical revisionism, in order to support honesty, integrity, and rule of law.

    I have been careful to separate support for gun rights from support for rule of law. At this point, I wouldn’t really care if the second amendment was overturned, but as long as the second amendment is law, those civil rights should be protected.

  139. John Morales says

    Gerrard,

    I’m not really in favor of gun rights, abstract or not. I’m in favor of rule of law, constitutional supremacy, separation of powers, judicial restraint, etc.

    And therefore, “as long as the second amendment is law, those civil rights should be protected.”

    The second amendment currently being law, and those civil rights being gun rights, it follows you are indeed in favour.

    (Are you aware of the concept of transitivity?)

  140. GerrardOfTitanServer says

    Is no one here aware of the consequences of rule of law, which is that sometimes one must support judges applying a law even if they disagree with the law itself and the outcomes of the proper application of that law? I can support judges properly applying a law even if I want the law to be overturned by the legislative process. That’s kinda what “rule of law” means.

  141. John Morales says

    Your evasiveness is telling, Gerrard.

    But, sure, I get you: If the law were that, say, atheists should be killed for their atheism, you’d support that law and its enforcement while protesting you’re against the killing of atheists for their atheism. Because you have principles!

  142. GerrardOfTitanServer says

    John
    I don’t know how I’m being evasive. Ask questions that are more direct and more clear, please.

    I didn’t say that I would “support the law”. I said that I would “support judges applying the law as written”. Again, those are very different things. Please stop conflating the two. It misses the entire point of separation of powers, rule of law, etc.

    Re your extreme example of a law mandating something like genocide. Going straight to 11. First, let’s talk about a lesser problem. I can still support civil disobedience while also simultaneously supporting judges applying the unjust law as written. When we take the example to the extreme, then I think it’s right even for judges to disobey the laws as written, but that’s basically advocating for a constitutional crises, and it’s just baby steps away from civil war. It’s a nuclear option. If one side is calling for genocide, then it is time to invoke such a nuclear option, but I simply do not think that the current gun death pandemic rises to such a level where such extreme tactics by judges are warranted. As for civil disobedience, I would support that.

    WMDKitty
    You sound like Vicar. “Only criminals vote for a criminal for president” sort of vibe with that comment.

  143. GerrardOfTitanServer says

    John and everyone else.
    Here. Let me try to find some common ground. Why do we have laws in the first place? In other words, why do we not have a system of judges which decide each case according to the public good on its own merits, without a legislature at all? There’s a lot of reasons why we don’t have such a system. There’s a lot of reasons why we have a system with a separate legislature that makes the statutory laws, and a distinct judiciary that applies these laws in a neutral way to each situation. This sort of system with a separation between judiciary and legislature necessarily means that sometimes judges will have to make decisions that are not actually in the public’s good, and knowingly so. Otherwise, we’re back to my original proposal of having judges decide what is best in each individual case without referring to prior law from a legislature.

    Can I get agreement thus far? If not, then the gulf between us is probably insurmountable.

    If you’re with me thus far, then please realize that all I’m saying right now is that the federal second amendment is this kind of situation. It’s a bad law, but it’s the role of the judges to decide according to the law, even when the law is knowingly bad.

    Of course, I agreed that there are limits, and eventually a judge is morally obliged to tear down the system instead of participating in the system.

    Is the difference between us that you think that we’re past the line where judges should try to subvert the system, and that the benefits outweigh the harms of damage to rule of law?

    Or is the disagreement something much simpler that you think that the federal second amendment can be plausibly read and understood as not protecting an individual right? Or that the individual right is limited to circa 1800 era militia weapons?

    Or is the disagreement something more like a rejection of constitutional supremacy, and that each of our constitutionally protected rights can be revoked if SCOTUS decides that the constitutionally protected right is no longer a good idea? I support this kind of reasoning as it applies to biological, chemical, and nuclear weapons, and possibly / probably a good deal of lesser weapons. However, how far are you willing to take this? Handguns? If we go that far, it seems that you’ve basically destroyed constitutional supremacy altogether, and laid the foundation for a simple majority to overturn any constitutional protection or rule whenever they feel like it, and thereby defeating the purpose of having a constitution in the first place.

  144. John Morales says

    Gerrard:

    I don’t know how I’m being evasive. Ask questions that are more direct and more clear, please.

    My only question was a parenthetical, the substance of my comment @152, regarding which I called your response evasive, was to the effect that if you advocate for the application of constitutional gun rights, it follows that you therefore advocate for gun rights.

    Your response was: “I can support judges properly applying a law even if I want the law to be overturned by the legislative process.”

    Clearly, not only can you, but you in fact do; it was evasive because you did not concede that if you support applying a law, you effectively support that law.

    Though you say you don’t, though you quibble that at some point you’d maybe change your mind, right now, in this very thread, you are indeed a supporter of the abstract idea of the right to own guns.

    Is the difference between us that you think that we’re past the line where judges should try to subvert the system, and that the benefits outweigh the harms of damage to rule of law?

    Beats me.
    I do know your 2nd is a stupid, stupid thing, and it has consequences.
    I do know that certain people are already prohibited from getting guns, so there’s no need to get rid of it — just extend those prohibitions.

    Oh yeah, from Wikipedia (https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution):
    “In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding “the possession of firearms by felons and the mentally ill” or restrictions on “the carrying of dangerous and unusual weapons”.”

    Since all guns are dangerous weapons, it follows all guns could be thereby restricted, no? But that’s not how it works — because gun culture.
    Basically, that’s the problem, and it’s not one amenable to other than generational change, I fear.

    (Here in Oz, it’s illegal to purchase, carry or use anything specifically intended for self defence, but weirdly, we seem to manage with far fewer casualties than you mob. Go figure)

    Anyway, I’ve never been to the USA, nor shall I ever. I wouldn’t feel safe there.

  145. GerrardOfTitanServer says

    Clearly, not only can you, but you in fact do; it was evasive because you did not concede that if you support applying a law, you effectively support that law.

    You also sound very much like the Vicar, who has the problem of failing to understand that where there are only two evil choices, choosing the lesser of two evils is not the same thing as endorsing the lesser evil. Everyone in this thread has apparently failed civics 101. Jesus.

  146. John Morales says

    Having the average person carry a gun is a lesser evil than not having the average person carry one? You’re weird, Gerrard.

    (You are aware of the statistics, no?)

    Everyone in this thread has apparently failed civics 101.

    You imagine that passing civics 101 means one should support the average citizen owning a gun? OK.

  147. John Morales says

    [I feel kinda bad for you, Gerrard; I know what it’s like to be a lone voice, so…]

    FWIW, I do think your first comment had merit:

    Can’t you just be honest about the real point which is to take away many of their guns?

    Well, yes! Hopefully.
    I mean, it makes sense, no?
    No gun, no bullet means no gunshot.

    (These gun convos have been around for many, many years here by now; they tend to come up after a notable mass shooting.
    I remember in one of the earliest ones, I conceded that there are too many firearms around to expect to get them all, so my proposal was to go after ammo, itself a consumable, unlike a firearm which merely needs maintenance.
    I mean, I know about home loading and whatnot, but those too need consumables.
    And let’s face it, actual old-fashioned make-it-at-home gunpowder is nothing like modern propellants — and those aren’t so easily or indetectably made at home)

  148. John Morales says

    Mind you, this is the twenty-first century.

    Maybe don’t restrict guns or ammo whatsoever, but mandate that guns be fitted with means of real-time GPS uploading of location and firing, single-shot firearms exempted. Gun nuts could still fire their many rounds at the range or do their hunting or whatever, right? Just not in secret.

    We’ve most certainly already got the comms infrastructure for that, and I reckon it would be electrons better wasted thus than mining bitcoin.

  149. GerrardOfTitanServer says

    Having the average person carry a gun is a lesser evil than not having the average person carry one? You’re weird, Gerrard.

    Again, I’ve been clear in my position. The choice presented to me: no guns on the street, or preserve rule of law and integrity of the courts. I’ll take rule of law and integrity of the courts.

  150. John Morales says

    Gerrard:

    The choice presented to me: no guns on the street, or preserve rule of law and integrity of the courts.

    Really?
    By your claim, it’s either [rule of law | no guns for the populace],
    whereas I’m thinking about the choice of [no guns on the street | guns on the street]. IOW, I think either is compatible with rule of law.

    In short, you think that restricting guns is opposed to the rule of law; that you do so on a pragmatic basis (realpolitik) doesn’t change the outcome.

    I concede that there is no prospect in sight of any change to that “right”, mostly because of your sacred document — and that, whether or not you accept it, is why people such as you are actually impeding any such change.

    Looks like that’s the difference about which you queried @157. :)

  151. GerrardOfTitanServer says

    Again, I’m all for changing the amendment with another amendment, but I’m totally against lying about the amendment or using grossly improper jurisprudence to get rid of guns without a proper amendment to do so. I’m not treating the document as sacred. I’m treating rule of law and constitutional supremacy as sacred.

  152. John Morales says

    Gerrard:

    Again, I’m all for changing the amendment with another amendment, but I’m totally against lying about the amendment or using grossly improper jurisprudence to get rid of guns without a proper amendment to do so.

    Yes, you’ve made that more than clear. Lesser of two evils and all that.

    I’m not treating the document as sacred.

    I never implied you did, rather that the milieu de facto does.

    Here is my claim again: “I concede that there is no prospect in sight of any change to that “right”, mostly because of your sacred document”

    (That “your” is a collective plural, not a singular, and refers to the entity “the USA” and its constituents)

    I’m treating rule of law and constitutional supremacy as sacred.

    The former has some merit, the latter much less so.

    Here’s another difference: I think nothing is sacred.

    Anyway, to the topic at hand:

    I’m going to go out on a limb here and predict that there will be nothing done. No change in the gun laws. No restrictions on the ready availability of murder tools.

    What do you reckon?

  153. says

    I would say that your general statement about methods & values is correct, but that it far overemphasizes values as the key distinction.
    The power of a legislature to initiate lawmaking vs. the inability of a court to initiate lawmaking is a much larger difference than any difference in values.

    Here’s my key thesis, the one which you believes shows my ignorance of Civics 101.

    I propose a test. Since you believe that the defining characteristics of courts and legislatures are their values and I believe that there exists differences in values but that the defining characteristics of courts and legislatures are their methods – the when, how, and what of these institutions – why not do this:

    You write up a description of courts and legislatures designed to highlight what distinguishes one from the other, but do so without any mention of the when, how, or what that they do in any more specific way than that they are both capable of making and sometimes do make law.

    I will write up a description of courts and legislatures designed to highlight what distinguishes one from the other but without mentioning the values of courts and legislatures.

    Then we can each publish those here and allow people to judge whether understanding the when, how & what courts and legislatures do is more helpful to an audience trying to understand those bodies than undestanding the values of those bodies might be to the same audience.

  154. GerrardOfTitanServer says

    Crip Dyke
    Ok. Let me try. I’m not sure I understand exactly. I think you’re going pretty far to exclude “when, how, and what”, but I’ll try to meet the challenge. Warning, I will also subvert your intent a little to try to explain my position better.

    Option 1

    A judge is someone who acts in response to a particular individual controversy, like a claim that someone broke a contract, or a claim that property needs to be returned, or a claim that somoene is responsible for someone else’s medical bills, or a claim that someone should go to jail because they committed murder. These judges decide whether to grant the sought relief or punishment strictly according to their own unrestricted personal beliefs and discretion and whims, and their decisions regarding relief and punishment are binding on the individual persons in the case before them.

    By contrast, a rep in a legislature is someone who doodles on paper. They can doodle whenever they want. Other people are free to read their doodles whenever they want, but no one is bound in any way to read or consider those doodles.

    Option 2

    A judge is someone who, in their capacity as a judge, tries to restrain and suppress their own beliefs regarding what is fair, just, equitable, and best for society, and instead tries to be a neutral umpire in their capacity as judge, acting only according to the rules and values that have been given to him by the legislature (and constitution).

    By contrast, a rep in a legislature is someone who uses their own unrestrained discretion to decide what is best for society, using their own beliefs and judgment unfettered by anything else. The rep of the legislature then shares the results of these internal deliberations by proclaiming general values and rules to the public, and to judges specifically, so that the judges will act according to those values and rules (at some point).

  155. GerrardOfTitanServer says

    I guess if I don’t subvert the intent, option 1 looks like this:

    A judge is someone who acts in response to a particular individual controversy, like a claim that someone broke a contract, or a claim that property needs to be returned, or a claim that someone is responsible for someone else’s medical bills, or a claim that someone should go to jail because they committed murder. The judge’s decisions regarding relief and punishment are binding on the individual persons in the case before them.

    By contrast, a rep in a legislature is someone who argues with other reps, and who doodles on paper. They can argue and doodle whenever they want.

    ….

    PS:

    Both are borderline incoherent.

    However, I assert again, I was always talking in the context of rule of law. At some level of abstraction, you don’t need separation of powers in order to have rule of law. Rule of law requires equal treatment before the law (e.g. no bills of attainder), and treatment according to prior written laws (e.g. no ex post facto laws). At some level of abstraction, you could have a single body of persons who both write the statutory law, and who decide cases and controversies, and who write case law (in a small subset of cases), and rule of law could result. I could explain rule of law in this context. I don’t need separation of powers. In other words, I can explain rule of law at a high abstract level without referring to separation of powers (into separate groups of people), but I cannot explain rule of law without referring to the difference in values between 1- the values of decision-making that must happen during adjudication of individual cases under prior statutory law (and case law), vs 2- the values of decision-making for the creation of statutory law.

    PPS:

    Of course, there are severe practical problems with trying to get rule of law with a single body that handles both legislative duties and judicial duties, hence the separation of powers into separate groups of people. When we move from this high level of abstraction into the real world, this silly one-body system breaks down because of human imperfections. It’s hard for a human to change their ways of thinking so quickly, aka their values and decision making process so quickly, and going from legislature to judicial is a huge change in values of decision-making. In the real world, there would probably also be conflicts of interest and other problems by having the same people write the statutory law and also decide cases according to statutory law (and case law).

  156. logicalcat says

    One of the biggest problems about Trump was his repeated contempt for the rule of law and yet reading some of these leftists it feels to me like some of you would be fine with a Trump of your own as long as he aligns with your political leanings.

    You cannot be anti Trump without adherring to the rule of law as an important facet of a functioning democracy. Vicars everywhere. All of you. And tye constant dishinesty and strawmanning in this thread is disgusting and part of the reason why as a leftist ive grown disillusioned with the left. You dogmaticaly adhere to bad faith arguments and it hurts the cause because these bad faiths arguments are not only unconvincing but paints us as dishonest assholes with an agenda. Which aparently we are.

  157. says

    @logicalcat:

    it feels to me like some of you would be fine with a Trump of your own as long as he aligns with your political leanings.

    Quote someone specific saying something specific that gives you that impression, then explain why that language gives you that impression. Otherwise no productive conversation can de had. Everyone who doesn’t actually want “a Trump of [their] own” can just assume you’re talking to/about someone else, and since I doubt anyone here subjectively believes themselves to be wanting a left wing demagogue inciting an assault on Congress, not one single person will take you seriously.

    Your feelings are your feelings, but if you want to have a conversation you’ll have to have something more.

  158. GerrardOfTitanServer says

    Crip Dyke
    Let me build on my previous train of thought. Rule of law does not require separation of powers (aka invested into separate groups of people). It doesn’t even require elections! Rule of law is entirely possible under an absolute monarch who regularly and personally exercises their absolute discretionary power (both in the legislative sense, judicial sense, and executive sense).

    Imagine, for the sake of argument, a “wise and just” absolute monarch. Maybe they want to promote rule of law to promote economic prosperty to increase their own power. Or maybe they’re just a benevolent ruler. Doesn’t matter. Imagine for the sake of argument that the “wise and just” absolute monarch decides to foster a culture of rule of law. What could that even mean under an absolute monarch? It means the same thing as under a democracy with separation of powers. It means that individual cases and controversies should be neutrally judged fairly according to prior edicts, and that each person (except the monarch) shall be treated equally according to the text of the edicts, and treated equally according to the individual resolution of each controversy brought before the monarch to resolve (in a judicial capacity). The monarch could accomplish this. There’s nothing conceptually that would prevent the monarch from choosing to act in this way. Further, I’m sure that there must have been at least a few monarchs in history whose behavior was a reasonably good approximation of rule of law, and better than the approximation of rule of law that we have in the USA today.

    Again, rule of law is when a person can accurately predict in advance which actions will suffer punishment or other consequences (according to published laws), and when these laws (and the application of these laws to individual cases and controversies) are applied neutrally according to the laws themselves instead of a new and separate inquiry into what is fair, just, equitable, for the public good, etc. This can happen under an absolute monarch, and surely it has at least a few rare times in history.

    Separation of powers, separating the powers of the monarch and investing those separate powers into separate groups of people, is just a tool to better promote rule of law. Rule of law predates separation of powers, both conceptually, and probably historically AFAIK.

    Further, as a historical matter, off the top of my head AFAIK, separation of powers is probably incoherent without first having a notion of rule of law. It is the notion of rule of law which leads to the requirements of published rules (statutory law) and to the idea that individual persons in individual cases and controversies should be judged for their actions according to prior published statutory law and not according to a general inquiry into fairness, justice, equity, public good. It is these principles which must exist and must predate the separation of powers. You would have it the other way around, reversing the emphasis, and that is wrong.

    Rule of law at the end of the day is just cultural norms and cultural expectations. We have separation of powers to build further cultural norms to reinforce the core of rule of law. However, the same cultural norms of rule of law can be used to describe an absolute monarchy in the same way that we can describe modern representative elected democratic republics. It’s all about the cultural norms where people expect and demand of their government that they are treated equally before the law, and cases and controversies are decided according only to prior published law, and that each person receives treatment without favoritism when the statutory law is applied in each case and controversy. Nothing in that short description requires separation of powers, or an elected legislature, or hell, even a government at all. Rule of law could also exist in a hunter-gatherer tribe that is ruled by consensus.

  159. GerrardOfTitanServer says

    Crip Dyke in 171
    Every post here that sidesteps my questions about rule of law, and sidesteps my questions like “do you agree that sometimes a judge ought to be required to render a verdict which is knowingly contrary to fairness, equity, and the public good” is exactly what logicalcat is talking about. For some particularly clear examples IMO, see the recent responses to me by John Morales when I posed these exact questions to him; comments #157-166.

    In particular, this exchange stands out to me.

    Having the average person carry a gun is a lesser evil than not having the average person carry one? You’re weird, Gerrard.

    Again, I’ve been clear in my position. The choice presented to me: no guns on the street, or preserve rule of law and integrity of the courts. I’ll take rule of law and integrity of the courts.

  160. PaulBC says

    GOTS@165

    but I’m totally against lying about the amendment or using grossly improper jurisprudence to get rid of guns without a proper amendment to do so.

    Well, here’s where I disagree. If a judge chooses to read an amendment a certain way that may have not been what the founders intended, that is a much less serious issue to me than the loss of life caused by the current outrageous availability of guns. That’s a real problem that causes harm.

    I also favor rule of law in most reasonable cases. In a case in which I see a 21st century judge applying common sense and current evidence to apply discretion and nullify the “founder’s intent” I agree that there is some damage to rule of law. But I also see someone acting according to conscience. I can’t even imagine trying to explain “Well, yes, your kid got killed at school and that sucks, but hey, there is absolutely nothing I can do. I just apply a set of pedantic rules to a piece of aged parchment. You really ought do something about this broken constitution, but that’s not my job.”

    For one thing, I have seen people fudge many decisions usually for worse reasons, and I have not seen the entire edifice of the law come crashing down that slippery slope as a result. Sometimes human beings apply discretion. I would (as I’ve been clear) prefer to see the repeal of the 2nd amendment, but barring that, I would like to minimize the “individual rights” interpretation because the damage outweighs the benefit of focusing on this inkstain among several in an otherwise pretty good constitution for its historical time period.

    To put it in context, if I were a judge who believed he had just sentenced an innocent person to death according to impeccable process with a fair but in this case errant jury, and the only hope for that individual was some kind of jailbreak, I would consider the jailbreak to a be far better outcome than following the process to its lawful conclusion. Rule of law is important, but it is not the only element in the moral universe, nor even the most important.

  161. John Morales says

    Gerrard, you really like to stroke your false dilemma.

    The choice presented to me: no guns on the street, or preserve rule of law and integrity of the courts. I’ll take rule of law and integrity of the courts.

    Because, clearly, it is not possible to have rule of law and no guns on the street. In your opinion, anyway. Gotta be one or the other.

    (Weird how other countries manage it, no?)

  162. GerrardOfTitanServer says

    PaulBC
    Thanks for that exceptionally clear prose. I just wish others were as clear and open and honest as you. You frame the issues very well, and I agree in broad strokes. I just don’t agree in this particular case with your particular calculus regarding the explicitly dishonest undermining and subterfuge to overthrow a constitutional amendment without proper process.

  163. GerrardOfTitanServer says

    John Morales
    And now you’ve gone into full troll mode. If you want to actually engage with what I’ve written, I’ll be here.

  164. John Morales says

    Gerrard:

    If you want to actually engage with what I’ve written, I’ll be here.

    Heh.

    I already have, and got you to demonstrate that your opposition to gun control is based on your ostensible belief it’s only possible by abandoning the rule of law. Which is a patently stupid belief, given the reality of other countries that do have rule of law and yet don’t have the same gun problem.

    It’s you who retreats from actual engagement, not I.

    (Pretty desperate, trying to play the “troll” card, but evidently that’s all you have left, short of actually engaging)

  165. GerrardOfTitanServer says

    got you to demonstrate that your opposition to gun control is based on your ostensible belief it’s only possible by abandoning the rule of law.

    I said no such thing unless your attention span is that of a goldfish and you quote-mine.

  166. logicalcat says

    @GOTS

    Thanks for providing an exanple so I dont have to. I want comprehensive gun reform and I believe you do to. Everyone else is hell bent on strawmanning your positions and ignoring your points with the exception of a few.

  167. GerrardOfTitanServer says

    logicalcat
    I admit that I’m still on the evil side a little, and I still like gun rights a little bit, but I’ve softened over the years, and I’m really at the point where I don’t think I care anymore.

    I am unconditionally and fully in support for: universal gun training and licensing for every kind of gun, waiting periods for first purchase, mandatory background checks in conjunction with the universal licensing including for private sales. I also want standardized and firm rules for safe storage, so we can use a few “poor” people who had their kids kill themselves or others with their own guns so we can put them on a legal sacrifice altar to make the rest of these fuckers respect proper safe storage when children are in the house. I also firmly believe that these policies are clearly constitutional even in light of a insurrectionist-theory interpretation of the second amendment, and I find it hard to believe that SCOTUS could or would forbid these restrictions, and I believe that these restrictions would do a lot of good.

    I still think that “assault weapons ban” are basically incoherent and written and defended by people who know nothing about guns. I still think that magazine capacity limits to 10 are coherent but almost useless because it betrays a fundamental misunderstanding how most mass shootings happen. Practically no mass shooter has ever been stopped by a victim tackling the shooter, and mass shootings tend to be turkey shoots, shooting fish in a barrel, where the shooter has all of the time in the world, and the few seconds to change a magazine will not substantially alter the damage that they can do except in circumstances that are special even among mass shooters. Some of the worst mass shootings that we have had include Columbine and V Tec which IIRC happened in one case with just handguns with mostly 10 round mags with a few 15 round mags, and the other happened with a rifle exclusively with 10 round mags.

    If someone wants to actually focus on all semiauto rifles, or all semiauto firearms altogether as a category of firearms to ban, or semiatuto firearms with quick-replace detachable mags, then we’re talking. Unfortunately, I don’t think these laws can or should survive constitutional scrutiny while the second amendment is a thing.

  168. John Morales says

    Gerrard @179 (“you quote-mine”) and logicalcat (“Everyone else is hell bent on strawmanning your positions and ignoring your points”) @180:

    Again:

    The choice presented to me: no guns on the street, or preserve rule of law and integrity of the courts. I’ll take rule of law and integrity of the courts.

    That’s as plain an either/or — that is, a supposed dichotomy — as anyone could write.

    And, if it actually were a quote-mine, then it wouldn’t represent your actual position, would it? But you’re reiterated it already.

    I note I asked a direct question @166 which you, Gerrard, have heretofore studiously ignored.

    (I don’t really wonder why, it’s pretty clear to me)

  169. GerrardOfTitanServer says

    John Morales
    I refuse to believe that you have the attention of a gold fish, but I’ll play along anyway for now.

    I say it again: Many people in this thread are acting as if we can ban all guns, or significantly limit access to guns moreso than already, and that the second amendment is not a barrier to this because the courts can subvert the second amendment. If that is my choice, my choice is to not subvert the second amendment. That is what I meant. If someone offers me a third choice of repealing the second amendment, I think I’m for it, and I would offer no opposition.

  170. says

    @logical cat:

    Thanks for providing an exanple so I dont have to.

    This is the only example that GOTS provided:

    Having the average person carry a gun is a lesser evil than not having the average person carry one? You’re weird, Gerrard.

    So I must assume that you believe that this supports your statement. Let’s remind everyone of that statement:

    it feels to me like some of you would be fine with a Trump of your own as long as he aligns with your political leanings.

    your feelings are, of course, your feelings. But if you’d like anyone to agree with you that there’s some sort of problem here, you’re going to have to be able to show that people here in this thread really have expressed things that would, to a reasonable person, show evidence that the writer would “be fine with” a left-wing demagogue as president, one so extreme that they encourage a violent assault on Congress.

    Now if you have nothing but feelings, okay. But you seem to think that the example GOTS already provided shows support beyond spontaneous “feelings”.

    So, I’m listening. Please explain to me how the statement quoted by GOTS (and requoted here by me) expresses support for violent, left-wing demagogues.

  171. GerrardOfTitanServer says

    your feelings are, of course, your feelings. But if you’d like anyone to agree with you that there’s some sort of problem here, you’re going to have to be able to show that people here in this thread really have expressed things that would, to a reasonable person, show evidence that the writer would “be fine with” a left-wing demagogue as president, one so extreme that they encourage a violent assault on Congress.

    Obvious hyperbole is obvious. Except to you.

  172. John Morales says

    Gerrard (my markup):

    Many people in this thread are acting as if we can ban all guns, or significantly limit access to guns moreso than already, and that the second amendment is not a barrier to this because the courts can subvert the second amendment.

    Me @164: “I concede that there is no prospect in sight of any change to that “right”, mostly because of your sacred document — and that, whether or not you accept it, is why people such as you are actually impeding any such change.”

    Me @166:

    Anyway, to the topic at hand:

    I’m going to go out on a limb here and predict that there will be nothing done. No change in the gun laws. No restrictions on the ready availability of murder tools.

    What do you reckon?

    Heh.

  173. John Morales says

    So, Gerrard, your constitutional quibbles and their sacrosanct basis have been thoroughly explained. You implicitly concede PZ’s point, but you justify that on the basis of “rule of law”.

    Goes a bit like this:
    Can the law be changed? Yes.
    … but it would be unconstitutional!
    Can the constitution be amended? Yes.
    … There you go, rule of law!
    Will it be amended? Is there any prospect of that in the horizon?
    … [crickets]

    … I am unconditionally and fully in support for: universal gun training and licensing [and lots of other things which presume a right to own a weapon, because constitution]

    Remember what I quoted from my reference above?
    “Americans, increasingly in recent years, tend to support the abstract idea of the right to own guns.”

    That’s you, and that’s how our conversation began. And how it — ends? ;)

    (dum dum duuuuum)

    Like I wrote: gun culture.

    Actual constitutional laws already restrict ownership; that’s precedent that ownership restriction is doable, right now.
    The constitution, being such a sacrosanct document, can nonetheless be amended — so long as that’s (ahem) done constitutionally.

    Realistic, pragmatic, realpolitik prospect is: NOPE.

    It does amuse me you imagine you’re restricting guns for the gun nuts by virtue of your training and licensing and so forth. I mean, for the general public (as with voting) the more hassle it is to do, the less the likelihood. Gun-nuts, not-so-much.
    Your wishlist doesn’t address the basic problem in the slightest; again, look at the statistics. The more guns around, the more gunshots. The more accidental ones. The more careless ones. The most unfortunate ones.

    In short, you are so USAnian you can’t get outside your thought-pattern that the abstract right to own guns cannot be revoked.

    Well, except sometimes, when it suits. As little as possible, but it’s something.

  174. John Morales says

    [Hm, I might have been a little mealy-mouthed.]

    By “the most unfortunate ones”, I mean suicides.

    (Look at the statistics)

  175. GerrardOfTitanServer says

    John I don’t see the point. Are you attacking me for being against subverting the constitution without proper process? Do you have any other complaints about my expressed positions? It seems like you’re critiquing me, but it’s too obtuse and obfuscated for me to understand.

  176. John Morales says

    Gerrard:

    John I don’t see the point.

    I see your point. Any change to the right to bare arms must be lawful and constitutional.

    Are you attacking me for being against subverting the constitution without proper process?

    Oh, no, not at all. It’s not me calling you trollish or Vicarish or whatever.
    I’m not attacking you, I’m engaging with you. Different things.

    Do you have any other complaints about my expressed positions?

    To what complaints do you refer? I’ve merely pointed out the verities of your viewpoints, and their basis. I’ve quoted your own claims throughout, you know, what you call “quote-mining”, and addressed those. FWIW, I’m implicitly giving you credit for being well-meaning, which is a contrast with you.

    It seems like you’re critiquing me, but it’s too obtuse and obfuscated for me to understand.

    You rationalise your lack of understanding as due to my obtuse obfuscation. Got it.

    For the third time, “What do you reckon?”

  177. GerrardOfTitanServer says

    I’m going to go out on a limb here and predict that there will be nothing done. No change in the gun laws. No restrictions on the ready availability of murder tools.

    For the third time, “What do you reckon?”

    I don’t know why you think I have any magic powers of political predictions. I agree with PZ that any positive change is very unlikely.

  178. John Morales says

    So, Gerrard. Perhaps we might advance this discussion.

    You’ve asserted you agree with PZ that any positive change is very unlikely.
    Presumably, there exist reasons for this determination.

    You’ve intimated you concur with me that the principal basis for this happenstance is the 2nd amendment of the Constitution, and you’ve now intimated it’s rather unfeasible to envisage it being repealed or even amended in the foreseeable future, on the basis of the extant sociopolitical climate.
    Again, we concur.

    Still, there currently are restrictions to gun ownership in place, no?

    If you acknowledge that those extant restrictions are lawful (and therefore constitutional), can you not acknowledge that further restrictions may well be lawful?

    And, if so, why should there be a cut-off point to those restrictions?

    Imagine, for yuk’s sake, that gun ownership were somehow restricted to people who joined an official militia and abided by whateer ownership rules — surely that would not be any more unconstitutional. Right?
    Restrictions are restrictions, so clearly the ownership rule is not universal.

    (In logic, that’s an existence case, as opposed to an universal case)

    Thing is, even these restrictions (the which ignore the point that the right to gun ownership is the actual problem), are also not even on the horizon.

    Face it, you’re (USAnians) are doomed to continue living with the exceptional problems your politics perpetuate.

    I feel for you. You (probably quite correctly) consider that there is no realistic prospect of repealing or modifying the 2nd, so that all that’s doable is to put more rules on gun ownership. Reality is, most of those wouldn’t be properly monitored or even enforced, because (again) gun culture.

    So, anyway… do you acknowledge that your proposed mitiigation consists on more rules, but does not even attempt to challenge the Constitutional right to own a deadly weapon?

  179. GerrardOfTitanServer says

    So, anyway… do you acknowledge that your proposed mitiigation consists on more rules, but does not even attempt to challenge the Constitutional right to own a deadly weapon?

    Uh, yea. That’s what they do.

  180. John Morales says

    So, Gerrard. You agree that your proposed mitigation consists on more rules.

    So all that is needful is to amend those rules so that nobody qualifies in practice.

    Do you dispute that would, if passed, be both lawful and constitutional?

    (And it would fix the problem)

  181. GerrardOfTitanServer says

    I think that it’s patently absurd to simultaneously say that a constitutional amendment guarantees a right of the people to deadly weapons (of some kind) and it’s also constitutional to pass mere statutory laws that revoke the right of the people to deadly weapons (all kinds) for 99%+ of the population.

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