How Gun Advocates’ Blind Focus on “Freedom To” is Destroying Lives by Ignoring Our Right to “Freedom From”

Michael-Hamburger-Freedom[1]

Christy

Christy is a world-famous boxer. Despite her prowess in the ring, she was physically and psychologically abused at home. She endured for 20 years before finally deciding to leave her tormentor. Her husband, upon hearing the decision, stabbed her multiple times and then shot her at point-blank range. Even though Christy was left to die on the bedroom floor, she miraculously survived.

Some gun advocates will insist that this could have been prevented if only she had owned a gun to protect herself. There is, however, one flaw with this interpretation: she was shot with her own gun.

Zina

Zina was desperate. After years of enduring an abusive relationship, she finally found the courage to end it. Fearing for her life, she obtained a restraining order against her now estranged husband. Such an order should have guaranteed that her husband would be unable to pass a background check and obtain a firearm. In any other advanced country in the world, that would have been true. She lived in America though. Her husband was easily able to find a private seller online and buy a handgun, no background check required. The next day, he brutally murdered Zina and two of her coworkers.

In many states, a temporary restraining order is not enough to prevent an abuser from lawfully purchasing a firearm. In the 7-14 day period between the initial order and a court hearing, the time when an abused woman is at the greatest risk, her tormentor is easily able to obtain a firearm. And, as usual, the NRA has blocked all attempts to rectify this sad reality, stating that these life-saving measures grant “extraordinarily broad authority to strip firearms rights.” Apparently in the NRA’s view, an abuser’s freedom to own the weapon of his choice is more important than Christy or Zina’s freedom from brutality, violence made much more lethal by a firearm.

Positive vs. Negative Liberty

Negative liberty is the type of freedom we have in the absence of restrictions. Less interference = more freedom. A person living in anarchy or a state of nature has the maximum amount of negative liberty due to the complete absence of restrictions. By this definition of freedom, liberty can only decrease with the addition of society’s restriction. This liberty is chiefly characterized by the “freedom to” do certain actions. Some examples are:

  • Freedom to pursue happiness.
  • Freedom to express political opinions.
  • Freedom to own a gun.

When we typically think of freedom, these are the examples that readily spring to mind. However, there is much more to liberty than just “freedom to.”

Positive liberty is just as important as negative liberty, despite being less intuitive. In contrast to negative liberty, positive liberty recognizes that freedom can actually expand in tandem with well-placed restrictions. Positive liberty is the freedom to realize our full potential and to maximize our well-being.  A major part of positive liberty, then, is “freedom from” certain actions that are detrimental to achieving our full potential. Unlike its negative counterpart, positive liberty is often attributed to groups of people or society. For example:

  • While you have the freedom to smoke a cigarette, we should and now do have the freedom from breathing in the noxious fumes.
  • While you have the freedom to drive a car, we should have the freedom from having our safety endangered by you driving while intoxicated.
  • While you have the freedom to speak freely, we should have the freedom from you shouting fire in a crowded theatre.
  • While gun advocates have the freedom to peacefully assemble and protest, we should have the freedom from armed intimidation.

A False Dichotomy

At first glance, these two concepts of liberty appear diametrically opposed. One must sacrifice one to obtain the other. A society fully reliant on negative liberty would not be a society at all, but would rather resemble Locke’s state of nature (aka anarchy). A reliance on solely positive liberty, on the other hand, leads to a society eerily resembling that in “1984.” Neither of these outcomes is desirable. However, short of these extremes, positive and negative liberty actually are inseparably linked, not opposed.

Take smoking, for example. My freedom from having to breathe in second hand smoke (which comes from restrictions on smoking in public places) allows me and the rest of society greater freedom to pursue and enjoy other liberties. These restrictions on certain behaviors allow for a freer society and constitute the social contract on which modern civilization is formed. All of us sacrifice some “freedom to,” but as a net result gain both positive and negative liberty that far outweighs the initial cost. As most people intuitively understand, “freedom to” cannot exist without “freedom from” in a healthy society. As Isaiah Berlin, a pioneer in this philosophical field, states:

“It follows that a frontier must be drawn between the area of private life and that of public authority. Where it is to be drawn is a matter of argument, indeed of haggling. Men are largely interdependent, and no man’s activity is so completely private as never to obstruct the lives of others in any way. ‘Freedom for the pike is death for the minnows’; the liberty of some must depend on the restraint of others.”

Why then spend so much time on positive vs. negative liberty if it is actually a false dichotomy? While false, this dichotomy highlights the limits of gun advocate’s interpretation of freedom. In general, gun advocates (a small yet politically powerful minority of gun owners who refuse to accept even the most basic of regulations) only recognize the “freedom to” side of dichotomy, and reject any notion that firearm restrictions can lead to greater freedom. A statement such as “My right to bear arms shall not be infringed” and other popular pro-gun slogans emphasize this worldview. This narrow interpretation completely overlooks how their actions and the policies they advocate harm both the positive and negative freedom of others. Their philosophical framework ignores the basic fact that in a civilized society “freedom to” cannot exist apart from “freedom from.”

A Matter of Life and Death

Gun advocates’ wanton rejection of any gun regulation doesn’t just infringe on society’s “freedom from” certain actions, it also directly trespasses on individuals’ “freedom to” live in safety. If the battle over the definition of freedom was merely a philosophical quibble over terminology, this debate would warrant little attention. However, gun advocates’ staunch refusal to recognize “freedom from” has dire consequences which have contributed to the death of thousands of Americans.

Tucson

Jared_Loughner_sheriff's_officeThe freedom to easily obtain magazine clips that can carry dozens of bullets granted Jared Loughner precious seconds on January 8, 2011 to fire additional rounds into the crowd, murdering Christina Green, Dorothy Morris, Dorwan Stoddard, Gabriel Zimmerman, John Roll, and Phyllis Schneck while wounding 13 others including Representative Gabby Giffords. Had he been forced to reload sooner, innocent lives would have been saved. Christina, Gabby, and all of the victims of this horrific event should have had the freedom to live in safety and freedom from a lunatic wielding a gun that could fire 20 rounds before reloading.

Incidentally, a good guy with a gun probably wouldn’t have changed anything. In fact, the good guy with a gun who heroically rushed to the scene narrowly avoided shooting the wrong person.

Sandy Hook

Connecticut School ShootingOn December 14, 2012, shortly after 9:35 in the morning, Adam Lanza shot his way through the security door at Sandy Hook elementary school, armed with a Bushmaster and two handguns. The first emergency call came swiftly after the initial shots. By 9:39, the first police officer arrived on the scene. By 9:40, Lanza killed himself and the massacre was over. In the four minutes before the first officer arrived, Lanza fired more than 150 rounds from his assault rifle. In those four minutes, he managed to murder 20 children and six staff members. Had he been armed with merely a handgun or hunting rifle, more children could have been spared. Our children should have the freedom from military-grade assault weapons that are the mass-murderer’s weapon of choice.

On the same day in China, a man wielding a kitchen knife attacked an elementary school, wounding 23 children and a woman. There wasn’t a single fatality.

The Washington Navy Yard

hewlett-packard-dumps-the-company-that-hired-navy-shooter-aaron-alexisAaron Alexis believed the US government was using low frequency electromagnetic waves to control him. Acting on this belief, he bought a shotgun (after passing a background check that didn’t reveal his mental health problems) and, on September 16, 2013, went to the Naval Yard where he worked as a subcontractor. He positioned himself on the fourth floor, overlooking the crowded atrium, and opened fire. In the initial massacre, followed by a prolonged firefight, Alexis killed twelve people and wounded three others. Had the background check accounted for his mental health history, the shooting may have never occurred. All of us should have the freedom from a person who should never be able to pass a background check and obtain a firearm.

More good guys with guns would most likely not have made a difference. When armed officers arrived on the scene, Alexis engaged them in a firefight and rearmed himself with a fallen officer’s weapon, allowing him to continue the rampage.

There is no credible evidence that society is made safer by being heavily armed. In fact, the vast majority of the evidence points in the opposite direction. This means that gun advocates’ attempts to prevent any restrictions or regulations on guns are trading the safety of others for their desire to not be inconvenienced in the slightest. In preserving their own negative liberty, they are infringing on the positive and negative liberty of everybody else.  Gun advocates’ wanton rejection of all sensible regulation highlights their utter disregard of the freedoms of others from their deadly policies.

The Constitutional Defense

The final line of defense gun advocates advance is that guns provide the ultimate “freedom from”: freedom from a tyrannical government. This line of thought contends that without holding our own government hostage at gun-point we would be helpless against the second coming of Hitler. The only reason the other amendments still stand is because of the Second Amendment. After all, didn’t Thomas Jefferson himself say “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government”?

He didn’t, and the idea of armed deterrence is fundamentally antithetical to Democracy. Armed deterrence is a form of tyranny, not freedom. The threat of violence, which is the hallmark of armed deterrence, suppresses civil dissent and free speech, both of which are essential for a free society. Philosophically an armed society is detrimental to nurturing freedom.

It is empirically clear that how heavily armed a society is has no bearing on how free that society or individual citizens are. Just look at the company our Constitution keeps on the right to bear arms. Aside from the US, there are only four countries that mention a “right to bear arms” in their Constitutions: Haiti, Guatemala, Iran, and Mexico. If a constitutional right to bear arms was the ultimate guarantor of freedom, we would expect a different mix of countries. Also, as we explained in a previous article, there are many heavily armed countries that have little liberty, and many more countries with few firearms and a great deal of freedom. Freedom is preserved by democratic institutions, not a glorified Mexican standoff. The idea of our government turning into the Fourth Reich if it weren’t for our guns would be absurd if it wasn’t so tragically misguided. As James Madison wrote:

“…liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States.” – The Federalist #63

Also:

“Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers, may by gradual & well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst. it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our governments to danger on that side. It has been remarked that there is a tendency in all Governments to an augmentation of power at the expence of liberty. But the remark as usually understood does not appear to me well founded.” – Letter to Thomas Jefferson

Freedom from Fear

When giving his famous Four Freedoms speech in January of 1941, Roosevelt meant his speech as a clarion call to battle the rising power of Nazi Germany and Japan. His fourth freedom, the freedom from fear, addressed the right of people around the world to avoid the horrors of war. I doubt anyone could have foreseen how prescient these words would be in describing the America of today:

“The fourth is freedom from fear—which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor—anywhere in the world.” – Franklin Roosevelt

In the 72 years since his address, America has become a battlefield where even our children are not safe. Since Robert Kennedy was assassinated in 1968, more Americans have died from gun violence than in all of our nation’s wars, combined. If America was a foreign country, our pundits would be debating whether a humanitarian intervention would be needed to stem the violence. Instead, they continue to debate the ludicrous notion of whether even more guns will make our society less violent, while the opposite is manifest. Lost in this debate is the fact that the relentless deregulation of guns is infringing on the fundamental liberties of most Americans.

Christy, Zina, and the thousands of victims of gun violence should have had the freedom to life, liberty, and the pursuit of happiness. These fundamental liberties were stripped away by a person wielding a gun, all of whom had easy access to their weapon of choice. As a society, we must decide which is more important: the desire of a few not to be inconvenienced by gun regulations, or our right and that of our loved ones to live free from the menacing shadow of guns.

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  • Freeballer

    One of my “favorite” defense by gun advocates has to be; that life, liberty and pursuit of happiness aren’t “constitutionally protected rights”. They preach about uneliable rights (god given rights) to protect themselves, but don’t see the irony that these “natural rights” revolves around a gun; a material posession. Or positive liberty is simply the liberal’s need to “feel safe”.. The irony, of course, is their firearms are a safety blanket of sorts. I’m glad my country’s charter of rights and freedom include; life, liberty and right to self-protection… but didn’t include sloppy language of the 2nd amendment. We have our share of “gun nutters”, but America definitely has a monopoly.

    • If you aren’t from here, you have no say in how this country is run, just like I have no say in how yours is run.

    • Bryan S

      Actually, the right is to bear arms. Arms are simply tools of self defense from individuals and tyrants alike. It doesn’t matter if its a knife, a baseball bat, or bow and arrow. Any of these gives man or woman a mechanical advantage over someone that may usually be able to prey upon them due to superiority of size or numbers.

      Nothing guarantees outcome. But it does offer a better set of odds.

      • They are also simply the “tools” of violence, terror, and death.

        “It doesn’t matter if its a knife, a baseball bat, or bow and arrow.” Which is why our soldiers are armed with baseball bats and knives, because the tool “doesn’t matter”…

        • Bryan S

          They are tools of power. I can see by your “reasoned discourse” that you prefer that power to be in the hands of those who have not earned it, and in the hands of those who ignore laws because they have a predatory and animalistic mindset.

          there is no right to safety, but there is a right to access the tools to be able to have a stake in that safety.

          Just as one may have hunger, but cannot do much to satisfy that hunger without limbs to feed your mouth.

          • Interesting take, given that looser gun laws only mean that criminals and those most likely to do harm with firearms have much easier access to them. You accuse me of wanting criminals to have that power, but then advocate a set of policies that would do the most to give those criminals that power. Hypocrisy

            And safety is a fundamental right, one that is so patently obvious that there was no need to enumerate it in the Constitution. As the 9th Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Just because a right is not enumerated in the Constitution does not mean it doesn’t exist.

          • Bryan S

            They already have easier access to them. One set of criminals makes the laws and is in charge of enforcing those laws on the law abiding, and the other set already is content with ending life for monetary gain, no matter the tool they use.

            What about freedom from a moving finish line? Law abiding people who have no want to harm anyone are arrested, have their property confiscated, and their lives ruined by the expense and stigma of a trial and jail time… to satisfy your want to live in a bubble wrap world.

            The issue here is that reasonable people can have discourse. Criminals are not reasonable. They never have been, in ancient or modern times. One may hope that his neighbor is preyed upon by the wolf, or one may take a stand and stop the wolf.

  • During the Supreme Court case Snyder v. Phelps, a justice is quoted as saying (paraphrased) that ‘The First Amendment is not there to protect speech we agree with, but that which we find most offensive.’ This statement alone shows that that Bill of Rights protects disagreeable actions, ensuring they remain free. It very specifically does not grant a ‘right’ to be free from offense. The opposite can only be true: The First Amendment is there to guarantee that someone, somewhere WILL be offended. Nobody has the RIGHT to be unoffended. The Second Amendment does not guarantee the RIGHT to be free from fear. The Second Amendment very literally means that someone is going to be afraid. The gangbanger that breaks down the wrong door. The child molester that sneaks into the wrong home. The drugged-out meth user that wants to fuel their fix by forcing you to the ATM in the middle of the night. The Second Amendment guarantees that they will be afraid. There is no ‘right’ to be free from fear. There is a RIGHT, as espoused in the Bill of Rights, to have an effective means of self-defense: arms.

    • As the 9th Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Just because a right is not enumerated in the Constitution does not mean it doesn’t exist.

      All rights have limits and restrictions, and the same applies to guns. We have the right to free speech, but we don’t get to shout “fire” in a crowded theatre. Slander is against the law. As stated in the well known case Chaplinsky v. New Hampshire, Justice Murphy stated “There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or “fighting” words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.”

      On top of this, the unabridged right to bear arms you seem to be advocating for here is antithetical to our first amendment rights. Wielding a gun doesn’t promote debate and dissension, it silences it, which is inimical to the democratic process. You have the right to bear arms, but that right should be well-regulated.

      • So is it your contention then that a non-enumerated right takes priority over a specifically numerated right that’s been given its own amendment?

        • I stated quite clearly at the end that you have the well-regulated right to bear arms (as the 2nd Amendment lays out according to the most recent SCOTUS ruling on the issue). The problem is when gun advocates start trying to push for an unregulated right to bear arms, which not only infringes on many non-enumerated rights, but also the First Amendment as I mentioned.

          Oh, and you can tell the rest of pagunblog that as you long as you adhere to the criteria set out in the first comment on each post, we have no problem with dissenting view points (we set the bar really low btw). However, if y’all start swarming the the comment section in an attempt to railroad others trying to express their views, we will become much less lenient.

          • OK, so let’s say in the Bill of Rights it was written: “A well-educated electorate, being necessary to the functioning of a free state, the right of the people to print and read publications shall not be infringed.”

            Do you really want to argue that only the well-educated have a right to print and read books, magazines and other publications? Could that mean the less well-educated only have the right to read government approved materials?

          • Because “well-educated” and “well-regulated” have the same meaning? Hardly.

            But let’s except your thought experiment as a valid point (and forget the whole well-regulated bit). Then I would analyze the hypothetical amendment in the following way: It would be readily apparent that the entire amendment revolves around “A well-educated electorate.” The “well-educated electorate” is the goal. Why is it the goal? “being necessary to the functioning of a free state.” How to achieve this goal? “the right of the people to print and read publications shall not be infringed.” Relatively straight forward, simple English.

            Now, in this hypothetical universe, lets assume that history shows that a well-educated electorate was not necessary for a free state, or was in fact inimical to that free state (http://www.armedwithreason.com/militia-myths-why-armed-populations-dont-prevent-tyranny-but-often-lead-to-it/). Also, let’s say that a few decades after the founding fathers wrote the amendment that everybody realized a well-educated electorate wasn’t terribly effective at preventing foreign invasions of highly organized well-educated groups of people (or for that matter suppressing uprisings of well-educated electorates that threatened the free state). Instead, the leaders of this hypothetical free state decided it would be much more effective to have a standing body of well-educated people to defend the country. With all those facts, I would be logically forced to posit that this amendment had outlived its usefulness (especially if it was contributing to the deaths of 30k+ people per year).

            Fortunately, the real 2nd Amendment explicitly states well-regulated (and the vast majority of gun regulations have been upheld by courts after the most recent SCOTUS ruling, which said existing gun regulations were just fine for the most part), therefore ditching the whole thing is necessary. All we have to do is read the whole thing, not just the part after the first comma.

          • “Because “well-educated” and “well-regulated” have the same meaning? Hardly.”

            You’re making a classic mistake to assume that “well-regulated” means “subject to regulation” rather than “well-functioning” or “well-trained.” In that sense, it is actually more analogous to “well-educated” than it is to “subject to regulation. Heller goes into this in some detail, citing the relevant scholarship.

            If you believe the 2nd Amendment has outlived its usefulness, then straightforwardly call for its repeal. Don’t try to argue that it has anything to do with an endorsement and embracing of the modern definition of “regulating” as in the regulatory state of current Administrative Law.

          • Yes, there was quite a bit of scholarship that went into Heller, but the bulk of it was in the dissenting opinion. The large majority of constitutional scholars and historians disagreed with the decision which was by all objective measures a far cry from constitutional originalism.

            So you can either go with how the amendment was originally formulated, which was meant for militias. We no longer have militias, therefore the amendment is irrelevant (regardless of the definition of well-regulated. Ironically enough Washington instituted a national firearms registry and men were mandated to supply their own guns, which were subject to regular inspections. If that doesn’t fall under the modern definition of well-regulated, then nothing does). Or you can go with the current SCOTUS decision in which owning a firearm is separate from militia service, but gun regulations are completely constitutional. Either way, there is nothing in the constitution that would bar gun control.

          • “Yes, there was quite a bit of scholarship that went into Heller, but the bulk of it was in the dissenting opinion. The large majority of constitutional scholars and historians disagreed with the decision which was by all objective measures a far cry from constitutional originalism.”

            That’s simply not true. The dissent in Heller has largely been dissected and is less firmly rooted now than it was when it was written. The dissent largely rested on the scholarship of two individuals, Saul Cornell and Carl Bogus. The Heller interpretation is largely accepted within the academic community today. Do the research. The debate now is over scope. Meaning is established an accepted. That boat has sailed.

            And we do have a militia as currently defined in the United States Code. It’s there plain as day for anyone who cares to actually read it in 10 USC Section 311, and it’s a rather more broad definition than merely the National Guard, which is only a subset of it.

            Also, there was no gun registration. Please read the Militia act of 1792 to understand what was required. You’re mischaracterizing it. There was no registration requirement. Members of the militia, which was anyone of military age, and heads of household, were required to own firearms and appropriate ammunition. They were required to show up to muster from time to time, where they had to show they were meeting the requirements. There were no serial numbers on guns at the time. There was no registry.

          • The meaning is only established and accepted because the SCOTUS has declared it so. Whether we like it or not, that is now the interpretation of the Second Amendment, despite the decision overruling all precedent (which is a massive break from tradition and completely out of line with how SCOTUS traditionally decides matters. And its kind of interesting, because Stevens doesn’t cite Bogus (he does cite Cornell though). Although, I’m not surprised that he comes to many of the same conclusions as Bogus, as Bogus thoroughly details the rather recent history of the non-militia interpretation. It was a universally accepted conclusion that the 2nd Amendment right to bear arms was in relation to militia service before a few decades ago. Do the research.

            Given that, by your own words, a “well-regulated” militia is one that is “well-trained” or “well-functioning,” that would entail that that militia be organized. As such, the right to bear arms would only apply to the organized portion. But, that is now irrelevant as the SCOTUS decided that the right to bear arms is separate from militia service and gun regulations are perfectly constitutional (as long as they don’t completely ban firearms).

            In the Militia Act of 1792 the requirements for militia service were heavily regulated and it explicitly mentions a type of registry in Section VI. All the details collected at muster about the state of the troops and their arms are all collected.

      • The “shouting fire in a crowded theater” is not a good analogy, as the reason why it is illegal to shout fire in a crowded theater is not illegal if there is a fire. Shouting fire in a crowded theater when there is no fire is illegal because the risk of hurting someone for no benefit is too great.

        So, I would agree that there is a proper restriction on the right to keep and bear arms that is analogous to your theater argument: firing a weapon in a crowded theater, where there is no threat that needs to be defended against.

        • I agree (on the shouting fire) and would further add that the analogy between free speech and guns is not a good one. People using free speech doesn’t result in 30k+ deaths each year. Free speech isn’t stolen 150k times each year and then used by criminals to commit further crimes. And the types of free speech that would be most analogous to firearms are not protected under the constitution, such as fighting words or death threats.

  • While I cannot find the original quote I was looking for, this is a similar one on the same case by the ACLU:

    “The First Amendment really was designed to protect a debate at the fringes. You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.

  • Mass shootings are sensational, but not a good vehicle to base policy on. If you are going to base policy on mass shootings, fairness dictates that you note where mass shootings take place–by a wide margin, mass shooters choose the relatively few places where guns are not allowed. The Giffords assassination attempt was a rare exception–most likely because assassination was the primary motive. The other 2 examples you cite were both areas where guns are effectively only available to law enforcement. Quite a few people are unaware that for several decades military bases are essentially “gun free”–The rules for carrying a useable weapon are generally much more restrictive than off base, even for combat troops. Only guards and police have guns, and from what I’ve heard, often the guards don’t have ammo.

    • Your first statement simply isn’t accurate: http://www.armedwithreason.com/the-gun-free-zone-myth-no-relationship-between-gun-free-zones-and-mass-shootings/

      There is a bit of a difference between a “gun free zone” and a “gun free except for the guys with guns zone.” And you are right, gun control on military bases is strict (even in war zones), probably because the military recognizes that a bunch of people always walking around base with loaded assault weapons is a really dumb idea.

      • Marcus

        Well, it’s mostly because they don’t want soldiers to lose the weapons. It’s also an arduous and long process to issue the weapons. A company of 120 takes about 2 hours to issue weapons.

    • Sevesteen — Your observation about mass shootings fails scrutiny. Per this recent USA Today analysis, at least half of mass killings (defined as 4 or more victims, excluding the killer) result from family disputes. That means romantic breakups, custody battles, or just escalating family arguments, sometimes fueled with alcohol or other drugs. About 3/4 of mass killing victims are killed in their own home or another home (such as a relative or neighbor’s home). Only 1/6 of mass killings are the high-profile ones at schools, theaters, and other public places. But all of this, including what motivates those who shoot innocent people intentionally or not, deserves much more study. Just as we extensively study automobile-related deaths to improve safety, so, to, we should more fully research gun violence.

      • Sevesteen — Your observation about mass shootings fails scrutiny. Per this recent USA Today analysis, at least half of mass killings (defined as 4 or more victims, excluding the killer) result from family disputes. That means romantic breakups, custody battles, or just escalating family arguments, sometimes fueled with alcohol or other drugs. About 3/4 of mass killing victims are killed in their own home or another home (such as a relative or neighbor’s home). Only 1/6 of mass killings are the high-profile ones at schools, theaters, and other public places. But all of this, including what motivates those who shoot innocent people intentionally or not, deserves much more study. Just as we extensively study automobile-related deaths to improve safety, so, to, we should more fully research gun violence. http://usatoday30.usatoday.com/news/nation/mass-killings/index.html#frequency

        • I think you really knew what I was talking about–spree shootings, rampage shootings or whatever you want to call it where a nutjob goes to the mall, or a school or other public or semi-public place and shoots at a bunch of people, generally unrelated to him. Not gang war, domestic violence or a robbery gone wrong.

  • It was a universally accepted conclusion that the 2nd Amendment right to bear arms was in relation to militia service before a few decades ago. Do the research.

    OK.

    “The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”

    Congressional Sub-Committee on the Constitution report. 1982

    • Congressional Sub-Committees do not interpret the law. When Devin wrote ‘universally accepted conclusion’, he was referring to the federal courts. This quote might clarify that comment:

      For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; it does not guarantee immediate access to guns for private purposes. The nation can no longer afford to let the gun lobby’s distortion of the Constitution cripple every reasonable attempt to implement an effective national policy towards guns and crime.

      —Former U.S. Attorneys General Nicholas Katzenbach, Ramsey Clark, Elliot L. Richardson, Edward H. Levi, Griffin B. Bell, and Benjamin R. Civiletti

      • Jeff O’

        If, as you claim, the last 200 years of 2A interpretation only defines and backs military service, than why do over 20 state constitutions, (mostly older east coast states too), expressly give the individual right to bear arms? Take PA for example, Article 1, section 21:

        “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. “

        • Precisely because the states felt that the 2nd Amendment didn’t cover the individual right to bear arms, so they felt it was necessary to include in their own constitutions. If the 2nd Amendment expressly gave individuals the right to bear arms, then including it in their own constitutions would be redundant to a degree. Plus, your PA example highlights what the 2nd Amendment would have looked like had the founders meant it as an individual rather than militia-based right.

          • Jeff O’

            Nice try, but most state’s constitutions simply reiterate and regurgitate the majority of rights and restrictions found within the federal constitution. The reality is just the opposite of what you claim: the way the states’ constitutions are written shows their writer’s interpretation, understanding, and the common expectations of the time.
            To further my argument, those rights not explicitly given to the feds are reserved for the people or the state. Maybe the states are expanding our rights. Even if they were, I fail to see anywhere in the origins of our country where weaponry is restricted, much less prohibited at a federal level, so, since 1934, they’ve been consistently overreaching. It is clear our forefathers had every intention of allowing man to defend themselves with the best means possible, from man and government. It’s called natural law, and without undue discussion, predates our founding documents by a few hundred years.

          • Bryan S

            Nice try, but the PA constitution predates the federal Bill of Rights.

            Pa constitution of 1776 stated: “That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”

            So much for that federal control… Men surrounded by simple farmers seemed to see people like you coming.

          • “Even if they were, I fail to see anywhere in the origins of our country where weaponry is restricted, much less prohibited at a federal level, so, since 1934, they’ve been consistently overreaching.” You’ve got to be joking. There were many restrictions before 1934. Try the one where no loyalists were allowed to own firearms for a start.

            The original comment mentioned 20 state constitutions. I am well aware that PA’s constitution predates the federal one, but at least 7 of the 20 don’t. In several of the drafts for the 2nd Amendment, they mention that there is an individual right. However, that language was dropped by the time they arrived at the final draft. Had they intended the 2nd Amendment to protect an individual right, they would have clearly stated such. They didn’t. Plus, as all of history since 1776 shows, standing armies are not detrimental to a free state (which is incidentally why all free states in the world except one have them, including the US), which basically renders that part of the PA constitution factually incorrect.

            So much for federal gun control… As the DC v Heller decision explicitly states:

            “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

            And given that the vast majority of gun regulations have been upheld since the decision, it is manifest that gun control is perfectly constitutional (as long as it doesn’t impose a complete ban).

      • Scott in Phx AZ

        The claim that “For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia;” (this appears in the Washington Post in 1992 and so is an “opinion’ piece) appears to be false on its face. The appeal to authority here is a logical failing of course.

        To my knowledge the Federal Courts, at least the SC, never addressed the 2A until 1875 in US vs Cruishank. And in that case the court said the 2A, like the 1A, and the 4A, were guarantees of rights that existed “prior’ to the adoption of the Constitution (note the SC made NO claim that negroes had to be in the milita to have weapons, ie the 1A, 2A, and 4A were all “individual” rights) and served only to protect those rights from Federal infringement. Individuals had to look to the gov’t of their own states for protection of those rights from “private” infringement (ie discrimination, violence and death from their white previous masters). Before that at least 2 American edititions of Blackstones Commentaries on the Law contrasted the American right to arms with the English right to arms and noted that in America the right was not conditioned as it was in England That is – the “unanimously accepted view” of the 1800’s was that the 2A was indeed a right of the people. Indeed, there is no known writing from the Revolutionary period through the 1800’s that supports a non-individual rights interpretation.

        It is ironic of course that Cruishank involved the Federal prosecution of Southern whites (the Klan) for infringing upon several negroes rights to assemble, speak, and bear arms. To wit, the Klan disarmed the negroes and then abused them. So in its holding the SC enabled the persecution of blacks in the South after the Civil War by leaving them at the mercy of Southern gov’ts. We know how that went. Such is the legacy of the SC refusal to declare at that point the entire Bill of Rights as being a protection from state infringement too. One should note also the the SC did not begin applying the Bill or Rights to the states until the early 1900’s – speech being the first.

        Back to the main point – ie what was the “unanimously accepted” view of the 2A. As Don B Kates (a lawyer who did civil rights work in the South in the 60’s) laid out in his masterfull 1986 Michigan Law Review article the non-individual rights intepretation of the 2A first appears in about 1906 in a lower court (the name of the case escapes me). And then after Miller (1939 – the only direct examination of the 2A prior to Heller) the lower Federal Courts adopted a number of different viewpoints of Miller, one even expressly divorced themselves from Miller, in denying various challengs to gun laws. As he noted, the lower Federal Courts view of the 2A was hardly a monolithic viewpoint and entirly a creation of the 20th Century.

        It is sad to see that after all this time and all this scholarship with the end results being Heller and MacDonald that the same old tired, and completely discredited, claims continue to be made. Remember, such ‘liberal’ icons as Sanford Levinson (“The Embarrassing Second Amendment – 1989 I think), William Van Alstyne (who lauded the NRA’s efforts as akin to other civil rights advocates), and even Laurence Tribe (Harvard, whose work is the MOST quoted by the SC) have all opined that the 2A essentially means what it says – the “people” have the “right to keep and bear arms”. Of course all three of these have attempted to weasel out of their positions and claim somehow that infringements on the right to keep and bear arms are ok as opposed to infringments on the other rights but hey I never expect total honesty from “liberals” when it comes to guns.

          • Scott in Phx AZ

            Please point out to me which part of my post is incorrect.

            Henigans article, which I first saw in about 1994 when I bought a 3 vol hard-bound set from the Rutgers Law School (cost a bit as I recall) does not refute my main claim that before 1906 there was essentially no thesis that the 2A was not an individual right.

            Henigan sets up a straw man – that the proponents of the individual rights view of the 2A are really arguing that the 2A provides a right to insurrection which is an argument i have never seen by any 2A supporter.

            He then proceeds to badly flub knocking down the straw man. He pretty much makes his argument by simply ignoring any evidence to the contrary.

            I would appreciate you pointing to anything in Henigans article that refutes my rebuttal of the original post that for over 200 years the unanimous view of the 2A has been that it concerns arming the militia.

            For that matter provide a decision by any Federal court that supports that thesis in the 1800’s. As discussed above Cruishank does not – it specifically identifies the 2A as protecting and indivicual right and makes NO mention that anybody involved needed militia membership to have a right to arms.

            There is another 1800’s case, Presser, which touches the 2A but only to say the 2A doesn’t prohibit laws prohibiting private armies. Presser again fails to mention any militia membership as being necessary to exercise the right to arms.

          • Scott in Phx AZ

            I would point out also that “Dredd Scott”, aka Dredd Scott vs Sanford, a pre-civil war decision states in dicta that “if blacks were citizens they would have the right to keep and carry arms wherever they went” (quote is close enough for this purpose). The court made NO mention of membership in the militia being necessry for blacks, or “citizens”, to have the right to keep and carry (bear) arms.

            No SC decision, including Miller (1939) stipulates that membership in the militia is required for the right to keep and bear arms.

            I challenge you to find ANY reference by a Federal court prior to about 1906 that states such a thesis.

          • Well, for starters, the part about what you state US v Cruikshank says is factually incorrect. From the text itself: “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.” While not mentioning the militia, it expressly refutes the idea that it is an individual right.

            Your critique of Henigan is rather bizarre, given that he directly tackles the central points by Levinson and others. And he mentions the individual rights stuff. And he references the individual rights stuff from footnotes 9-17.

            And the using the Blackstone commentaries is really weak evidence. And aside from Blackstone, you really have no evidence prior to 1900s that the individual interpretation was considered the norm. In fact, the whole individual rights theory wasn’t even a thing until the 1970s/80s.

            And I guess you really haven’t encountered many gun advocates, as the insurrectionist view is extremely popular. Just because an argument is exceedingly dumb doesn’t mean it is a strawman.

            And former Supreme Court Chief Justice Warren Burger (no liberal by any stretch) stated that the Second Amendment having an individual right “one of the greatest pieces of fraud, I repeat the word fraud, on the American people by any special interest group that I have ever seen in my lifetime.”

            Of course, this debate is basically irrelevant now, as the SCOTUS (wisely or not) overturned judicial precedent and decided that there is an individual right to bear arms. They also made it clear that gun control is perfectly fine (as long as it doesn’t result in a complete ban), and that basically settles the discussion. You now have the individual right (that can be regulated) to bear arms.

          • You’re not understanding Cruickshank in context, and you have to understand that context to know what the court is doing. Have you read the entire Cruickshank opinion? Cruickshank opinion essentially redacted the whole of the 14th Amendment from the constitution. It’s widely regarded as a despicable and wrong opinion by most every scholar today. While it’s not been explicitly overturned, the Courts have erected legal constructs around the 14th Amendment to try to undo much of that wrong. The court said that the Second Amendment was a natural, pre-existing right… meaning it’s not a privilege or immunity granted by the Constitution. It also said that about the First Amendment’s right to assemble, because that was also at issue in the case:

            “The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States.”

            Obviously that’s not the law today, because the Court, in later cases, though the doctrine of selective incorporation, argued that the First, and in McDonald v. Chicago the Second Amendments, both apply to the states through the due process clause of the 14th Amendment. You can’t just cherry pick quotes from the case. You have to read the whole thing and understand the historical context of the case as a whole.

            The original poster Scott is quite correct that there is no opinion from the Supreme Court that supports the Second Amendment being the right of a militia. Even the Miller case never went that far. Scott v. Sanford pretty explicitly mentioned the 2nd Amendment in an individual context. There are numerous state constitutions that speak of it in an individual context. Many founders spoke of it in that context. This is why when push came to shove, the collective rights interpretation lost. It just wasn’t academically defensible, and the Court merely recognized that.

          • Scott in Phx AZ

            I fail to see how Cruishank refutes the idea the 2A is an individual right. It talks about the 1A and 4A in exactly the same manner.

            And it would seem to me that NOT mentioning any militia nexus pretty clearly leaves this decsion out of contentionf for supporting the idea that for 200 years the court unanimously viewed the 2A as being concerned with the militia. Not mentioning it is proof that it did? Thats a bit of a specious argument no?

            I see nothing in Henigan that supports the claim I contest above. Please give me an example of where Henigan provides evidence of this unanimous 200 year view.

            As Kates (1986) points out both the Federalists and anti-Federalists viewed the Bill of Rights as protecting individual rights.

            And since the adoption of the Constitution no Federal Court before 1906 has put forth a thesis that it was not.

            Please refer me to a law review article wherein the author puts for the “insurrectionist” theory. I would appreicate it.

            Warren Burgers comment was made in a Parade Magazine article. I hardly think that counts for much. You might know that Hugo Black, who participated in the Miller decision made remarks suggesting that Miller was an “absolute” protection of the right to keep and bear “militia’ arms. So i can trump you Parade Magazine article.

          • Scott in Phx AZ

            I re-read Henigan last night. My remembrance of it as a straw man argument is correct, not “bizarre”.

            Henigans central thesis is the courts have adopted a view of the 2A allowing for the regulation of guns (correct as far as that goes) – based upon the idea that such laws only offend the 2A if they interfere with arming the militia (a spurious idea) and that the SC has held that the militia is now the National Guard (which is an incorrect interpretation of what the SC has said).

            He then states that the “alternative view” is that the militia is the people and that the RtKaBA was intended as a check upon the power of the federal and state gov’ts (both of which are actually true).

            He “labels” this “alternative view” the Insurrectionist Theory of the Second Amendment and goes on to claim that Sanford Levinson (a “liberal” law professors’ law professor!) posited this view in his “The Embarassing Second Amendment”.

            But the alternative view is not an “insurrectionist theory” nor does Levinson’s article make any such case.

            Ergo, Henigan set up a straw man, and then did badly knocking it down.

            a side note – the “right to revolt” is a human, natural right as describe in the Declaration of Independence. All people have it at all times. The DofI is imo the absolute best description and explanation of how and in what manner a people should take advantage of that right.

            I won’t go into a lot of detail but errors appear on the first page of Henigan. He claims the SC has “upheld” a local ban on private possession handguns citing Morton Grove. But the SC simply denied cert for Morton Grove which is not the same thing as upholding the law. He mischaracterizes dozens a decisions and non-decisions by the courts.

            More telling – and this relates to my claim above that the opinion of the 6 Attorneys General in their Washington Post editorial is simply false – he baldly mischaracterizes both Justice Stoey and Judge Cooley’s “Commentaries on the Constitution of the United States.

            You should know that there are at least 4 American editions of Blackstones commentaries in the 1800’s –

            Saint George Tucker in 1803. He was a colonel in the VA milita, a law professor at William and Mary and a Justice on the SC of VA.

            William Rawle published his in 1824. He was a correspondent of Thomas Jefferson and George Washingtons’ first choice as Attorney General (he declined the offer).

            A younger contemporary, Joseph Storey, a Jefferson appointee to the US SC published his in 1833.

            And Judge Thomas Cooley (1824-1898 and Chief Justice of Michigan SC) published his in 1884..

            All 4 clearly identify the RtKaBA as an individual right. NONE make any mention that any sort of militia membership is required to exercise the right.

            Indeed Cooley anticipates the 20th Century creation of the militia nexus and refutes it say “it may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the milita; but that would be an interpretation not warranted by the intent. The militia consist of those who are liable for the performance jof military duty . . .or the law may make provision for the enrollment of all . . . or of a small number only . . . and if the right were limited to those enrolled, the purpose of this guarantee might be defeated by the action of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the milita must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.”

            So, the framers of the Constitution, both Federaist and Anti-Federalist saw the 2A (and all the BoR) as protecting individual rights (see Kates 1986 and others).

            The most important legal works of the 1800’s interpret the 2A as protecting an individual right.

            The few SC decisions up to and including Miller in 1939 identify the 2A as an individual right (yes indeed Cruishank does just that).

            So, the 200 year claim is baldly specious. So is the claim that Heller “over-turned” SC precedent – it did not (i realize that YOU have not made that claim but others have).

            You guys claim to be “armed with reason”. But denying plain evidence that the 2A was orginally seen as protecting and individual right and interpreted as such thru the 1800’s including by the SC doesn’t really make you look like you have true fidelity to “reason”.

            I invite you to dispute any of the above or support your claim about how Henigan proves “i am simply wrong”.

          • Well, Scott, as your entire position seems the rely solely on US v Cruishank and Blackstone taken out of context. As Sebastian explained, Cruishank is one of the worst opinions ever, and yet you are using it to establish a constitutional right to bear arms. Not a good strategy. Also, unless the context of Cruishank included a jk lol about that “The right to bear arms is not granted by the Constitution,” then it is logically impossible to assert that Cruishank defends the individual right to bear arms, as it says that right is not granted by the constitution.

            And its kind of ironic that gun advocates argue that the definition of “well-regulated” has changed over the years, because so has “the right to bear arms.” Back in that time period, the right to bear arms was universally understood to mean serving in a military capacity. From Aymette v. Tennessee: “A man in pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.” It is manifest to those who have had a bit more than a cursory glance at constitutional history that the Second Amendment revolves around the militia, which at the time was military service. The reason nobody really argues about it before the 1900s was that it was obvious that the right revolved around the militia. Even the head of the NRA at the time of Miller understood this. Plus, if you look at all the writing around the drafting of the constitution, that battle is over state vs federal, with not a whisper about individuals. State power vs. Federal power, not State/Federal vs. Individual. Suggesting otherwise simply belies an ignorance of the history surrounding that time period.

            Further, every single law review article published between 1887 and 1960 accepts the collective interpretation of the 2A. The first law review article to suggest otherwise was in 1960 (and that one admitted that the courts accepted the collective right).

            Blackstone mostly comments on natural law, which is not constitutional law. If you want to make the argument that the individual right to bear arms is natural law, feel free. But don’t pretend that it is synonymous with constitutional law.

            So far you have referenced 2 cases before Miller that directly state the opposite of what you say, and then you somehow claim the court history supports your contention, when all the court decisions since Miller (the first to directly tackle the specific issue of the 2A) and before DC v Heller supported the opposite conclusion.

            All of that being said, despite the majority opinion being based on the spurious arguments developed by the pro-gun movement in the past few decades, I don’t mind the outcome too terribly much. The Court explicitly states that along with gun ownership being a constitutionally protected individual right, that right can also be regulated. It isn’t like a total gun ban is feasible anyway, and the right regulations should be enough to stem a good portion of the gun violence and establish some level of sanity. I won’t continue in this particular thread as it is patently clear that neither of us is going to change the other’s mind, and both of us feel the evidence overwhelming supports our position. That’s fine. The constitutional debate over a collective vs individual 2a is one of the few place gun advocates actually have a modicum of evidence supporting their position. As long as it is clear the constitution allows gun regulation, I’m satisfied.

          • Well, Scott, as your entire position seems the rely solely on US v Cruishank and Blackstone taken out of context. As Sebastian explained, Cruishank is one of the worst opinions ever, and yet you are using it to establish a constitutional right to bear arms. Not a good strategy.

            No, he understands Cruikshank correctly in this case, that the Court recognized the Second Amendment as a natural right that predated the constitution and thus was not a “privilege or immunity” of citizenship under the 14th Amendment. It was a way to get natural rights out from the scope of the 14th Amendment so that a key provision could be redacted by judicial fiat. It worked. Even today, there are very few things considered “privileges or immunities.” All of the Bill of Rights are incorporated instead through the due process clause instead, which was a later judicial invention to get around the fact that previous courts had effectively gutted the 14th Amendment. This was all done for the purpose of keeping blacks subjugated, and continuing to deny them equal rights. It took nearly a century to undo Cruikshank in effect, even if not in law (it’s still technically stands, though the courts have done the right thing through other mechanisms).

          • Scott in Phx AZ

            herein lies the issue –

            ” It is manifest to those who have had a bit more than a cursory glance at constitutional history that the Second Amendment revolves around the militia, which at the time was military service. The reason nobody really argues about it before the 1900s was that it was obvious that the right revolved around the militia”

            You claim this as a GIVEN.

            But in fact it is exactly the opposite and you are clearly impervious to any evidence to the contrary.

            Just the evidence from the 4 American editions of Blackstones Commentaries shows that (you evidently aren’t aware of the importance of Blackstone’s Commentaries to American Constitutional law nor that the Commentaries were the main reference works for American Constitutional law thru the 1800’s). It appears that it is you that has only a cursory knowledge of this subject and a clear prediliction to reach the conclusion you want.

            You have failed to offer any specific evidence supporting your claim that “I am simply wrong” as the Henigan artcle clearly doesn’t, nor to rebutt any of my other evidence.

            So, go on believing that the SC over-turned this 200 years of unanimous view of the 2A.

            Everyone is free to believe their own fantasies.

      • legaleagle_45

        While Congressional sub committees do not have the final say on interpreting the law either do a group of former US attorney generals.

        If your former Attorney Generals quote is accurate that “[f]or more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia” then it should be fairly simple to cite one federal case decided prior to 1813 which reached that conclusion, otherwise your AG are shown to be either false or misleading.

        Can you dos so?

        • Scott in Phx AZ

          Leagleeagle_45, there is no point in engaging here. These people are not armed with reason but with faith in the Gun Control mantra.

          They simply BELIEVE that for 200 years no one ever thought the 2A protected an idividual right despite 3 SC decisions that say it – Dredd Scott, Presser, and Cruishank. None of which make ANY mention that actual participation or even enrollment in the milita is required to exercise the “right”.

          Indeed they seem to have no knowledge of any of these 3 decisions but when challenged with the evidence all of a sudden it is we who don’t understand the issues.

          It looks like you’ve read the thread so you know that Henigans’ article (from 1992 or so) was offered as proof I was “simply wrong”.

          But at least Henigan makes an honest effort in his dishonest (straw-man) article.

          These people don’t even have the knowledge to make a dishonest appeal.

          So they fall back on denying reality in total. It is really quite amusing though sad.

        • There is no case, because before the 1960s the individual rights interpretation of the Second Amendment didn’t even exist. To show this, find one Federal court case before US v. Miller that states the Second Amendment is an individual right. You won’t find any. However, Scott bizarrely insists that the worst SCOTUS decision in history agrees with him (along with two others, one of which is in the running for the worst). Why anybody would want some of the worst SCOTUS cases to agree with them is beyond me (and highlights the utter silliness of this debate), but lets take a look anyway.

          Let’s begin with Dredd Scott, widely considered the worst SCOTUS decision in history. For starters, as Justice Marshall wrote: “It is extremely dangerous to take general dicta upon supposed cases not considered in all their bearings, and, at best, inexplicitly stated as establishing important law principles.” Stating that Dredd Scott somehow states an individual rights view completely ignores the very basics of reading constitutional law. Also striking is it’s complete lack of reference in DC v. Heller. If this court case had anything to do with the Second Amendment, it would have at least been referenced.

          Next up is Cruikshank. How Scott keeps saying it refers to an individual right strains credulity. The case explicitly denies that there is a constitutional right for “bearing arms for a lawful purpose.” Plus, Scott completely ignores the historical context of the case, as the freedman were attempting to form a militia to protect themselves from a bunch of angry white guys trying to seize power. This case is a clear rebuttal of the individual rights interpretation, and was treated as such by the courts before the rise of the individual rights interpretation in the 1960s.

          Finally, there is Presser. It is absurd that Scott claims that Presser doesn’t mention the militia, when the case is about militias. Two excerpts from the case make this crystal clear:

          “We think it clear that the sections under considera­tion, which only forbid bodies of men to associate to­ gether as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in ques­tion lies in the fact that the amendment is a limitation
          only upon the power of Congress and the National government, and not upon that of the States.”

          also:

          “The plaintiff in error was not a member of the organ­ized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced. The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred.”

          Scott unfortunately does not seem to have read the actual texts of Scott, Cruikshank, or Presser, or bothered to study the history surrounding the cases before making his unfounded assertions.

          Next, lets look at the rest of the “proof” Scott provides, his ex cathedra use of Blackstone. Yes, Blackstone was important, but so were other writers at the time. As I explained above, Blackstone deals with natural law, and doesn’t even touch on the US Constitution. Also, it completely overlooks how Blackstone recommends reading texts such as the 2nd Amendment: “[i]f words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus, the proeme, or preamble, is often called in to help the con­struction of an act of parliament.”

          As it is clear the 3 court cases don’t offer any insight that would support an individual rights positition and the use of Blackstone is a blatantly misplaced and historically naive appeal to authority (which ironically overlooks how Blackstone would himself interpret the 2nd Amendment), lets examine the text of the 2nd Amendment itself. There is not a single phrase in the 2A that supports the individual rights view: “A well regulated Militia” (obviously refers to a collective) “being necessary to the security of a free State” (refers to a collective) “the right of the people to keep and bear Arms shall not be infringed” (looks like it might offer support to the individual interpretation, but bearing arms back then meant military service (as explained in Aymette v. State of Tennessee (1840)) and obviously refers to the militia, which is a collective). 3 mentions of a collective, 0 of an individual. Plus, if we look at the drafting history of the Second Amendment, parts that referenced an individual right were removed, and most of the discourse centered around a pitched battle between State and Federal (both of which are collectives). It would have been quite easy for the founders to make and explicit reference to an individual right, like some state constitutions did (Pennsylvania for example). Instead, they chose language mirroring the constitutions that revolved around the establishment of the militia, such as Virginia, Maryland and Delaware. This choice is striking and demonstrates the intention of the founders.

          It takes a lot of blind faith to assert that the individual rights interpretation is in the tradition of constitutional orginalism (I personally embrace the idea of a living constitution, which is a doctrine DC v. Heller clearly relied on in their decision), and a lot of denial of evidence. But then again, everybody is free to believe their own fantasies.

          • Scott in Phx AZ

            What a laugh. You even use my line – “everybody is free to believe their own fantasies.”

            Dredd Scott – “if blacks were citizens they would have the right to keep and carry arms wherever they went”

            Presser – “the states cannot . . . prohibit the people from keeping and bearing arms”

            Cruishank – “the right to keep and bear arms existed PRIOR to the adoption of the Constitution” and “does not depend upon the 2A for its existence”. That is – the people have the right to arms whether or not the amendment even exists.

            Cruishank was a bad decision not because of what it said about the 2A – which it clearly identifies as an individual right – EXACTLY the same as it addressed the 1A and 4A. It is a bad decision because it overturned the 14th amendment and left the newly freed blacks at the mercy of the white southerners and their state gov’ts (who refused to fully emancipate the blacks). It is interesting is it not that in the liberal pecking order even the history of black oppression in the south will be discarded if it means the right to keep and bear arms can be attacked.

            Then there are the 4 1800’s American editions of Blackstones Commentariies. Blackstone of course is THE MOST IMPORTANT influence on American Constitutional law.

            And Henigan refers to 2 of them, Storey and Cooley. When I point out that they and the other 2 ALL clearly identify the right to arms as an individual right then all of a sudden Henigan isn’t so important in Devins’ eyes.

            But even then Devin refuses to acknowledge Cooleys edition which said – “it may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the milita; but that would be an interpretation not warranted by the intent. The militia consist of those who are liable for the performance jof military duty . . .or the law may make provision for the enrollment of all . . . or of a small number only . . . and if the right were limited to those enrolled, the purpose of this guarantee might be defeated by the action of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the milita must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.”

            Tucker, Rawle, and Storey were all contemporaries of the Founders. None fo the founders challenged Tucker, Rawle, or Storey. There appears to be no written proof that anyone ever did (I doubt Devin can link to the 60 ‘law review artices’ written in the 1800’s – the 2A was hardly litigated so I think those law review articles are fictitious).

            Cooley’s edition anticipates the 20th Century militia interpretation of the 2A and all 4 make NO MENTION of any necessity to be enrolled or in actual service in a militia to exercise the right.

            Miller (1939) sent the case back to the lower courts to take evidence as to whether the saw-ed off shotgun was part of the military equipment, not upon whether Miller was in the militia.

            Despite Devin claiming otherwise none of the above supports the militia interpretation that he claims has been the view for 200 years.

            It is of course mute, as the SC doesn’t agree with Devin.

            But Devin knows better than the 9 Justices who said it is an individual right. 4 tried to claim outlwing guns in DC wasn’t an infringement on the right but all 9 recognized the right.

            But to Devin all 9 Justics are somehow so stupid that they fell for a story made up sometime in recent history that the 2A protects an individual right instead of the right of the militia to have weapons.

            Now that is fantasy.

          • legaleagle_45

            Devin wrote: “There is no case, because before the 1960s the individual rights interpretation of the Second Amendment didn’t even exist”

            So your esteemed Attorney Generals were misleading us about the existence of federal court precedent extending back more than 200 years? Why would they do that… Interesting… now let us proceed with your assertion that the individual rights thesis did not exist prior to 1960. The fact is there is no federal case not because the individual rights thesis did not exist, but because there was no federal law which implicated that right. However there were plenty of state court decisions…Most interpret state analogs to the 2nd, but this one out of Georgia does not because Georgia did not have a provision similar to the 2nd:

            “The right of the people to bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. “Nunn v. State, 1 Ga. (1 Kel.) 243 (1846)

            OK now lets look at constitutional commentators… the first being St George Tucker, the dean of the only law school in the country and a close friend of Madison (Madison introduced the entire Bill of Rights to the 1st Congress). Tucker’s correspondence appears in the Congressional Records involving the debates on the 2nd Amend. His treatise, Tucker’s Blackstone, was the single most important treatise on the meaning and interpretation of the Constitution during the founding era. His take on the 2nd Amend:

            “This may be considered as the true palladium of liberty …. The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.”

            St. George Tucker, Blackstone’s Commentaries 1:App. 300 (1803).

            Following Tucker, the next great Constitutional Commentator was William Rawle. His treatise “A View of the Constitution of the United States of America” (1829), was widely adopted by various law schools and other institutions and is one of the most widely cited texts from the early period of US history. His take on the 2nd:

            “In the second article, it is declared, that a well regulated militia is necessary to a free state; a proposition from which few will dissent. Although in actual war, in the services of regular troops are confessedly more valuable; yet while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.”

            “The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.”

            “The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

            “In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and is cautiously described to be that of bearing arms for their defence,’suitable to their conditions, and as allowed by law.’ An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws.”

            “This right ought not, however, in any government, to be abused to the disturbance of the public peace.”

            “An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.”

            William Rawle, A View of the Constitution of the United States 125–26 1829 (2d ed.)

            Next on our list is Joseph Story. Justice Story was appointed to the Supreme Court as an Associate Justice by James Madison in 1811. In 1833 he wrote, “Commentaries on the Constitution of the United States” His comments on the Second Amendment follow.

            “The next amendment is: ‘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.’ ”

            “The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.(1) And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid.” _______________________________
            (1) 1 Tucker’s Black. Comm. App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd’s Debates, 219, 220. ”

            Commentaries on the Constitution of the United States, Volume III, Chapter XLIV: Amendments To The Constitution, section 746, paragraphs 1889-1890

            Note his citation to Tucker and Rawle…regarding the right of citizens to keep and bear arms.

            Next on our list is Thomas Cooley who is considered the leading constitutional commentator of the late 1800s. In 1898 he wrote Principles of Constitutional Law. His comments on the 2nd Amend:

            “The Constitution. — By the Second Amendment to the Constitution it is declared that “a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”
            “The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.”

            “The Right is General. — It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision, undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose, but this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”

            “Standing Army. — A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.”

            “What Arms may be kept. — The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.”

            T. Cooley, General Principles of Constitutional Law 281-282 (2d ed. 1891)

            Well enough on our constitutional commentators… I will continue in another post as this one is getting exceedingly long.

          • legaleagle_45

            Actually Devin, your comment “[t]here is no case, because before the 1960s the individual rights interpretation of the Second Amendment didn’t even exist.” makes no sense. If I was asking for a case espousing the individual right thesis, your comment would make sense, however it would seem to me that there would be plenty of cases which espouse a collective right thesis if indeed that was the only theory being espoused.

            Here is a fact Devin. There was absolutely no cases which adopted the collective rights thesis for the right to arms until a rogue decision entitled Salina v. Blaksley, 72 Kan. 230, 83 P. 619, (1905). Go ahead Devan, prove me wrong…

            Now let us take a look at your analysis of Dred Scott, you made no analysis whatsoever, you just said it was dicta and refused to quote anything. That is analysis?

            I agree it is dicta, the only SCOTUS case prior to Heller in which SCOTUS said anything about the 2nd Amend which was not dicta was in US vs. Miller. However, it sure looks like that dicta is saying it is an individual right:

            “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. “Dred Scott v. Sandford, 60 U.S. 393, 417(1857).

            Now you may denigrate the decision all you want and call it dicta, but what you can not say is that SCOTUS believed that the 2nd was anything other than an individual right. So, your initial claim that such a thesis of the 2nd Amend did not exist prior to 1960 is clearly refuted.

            Now Cruikshank.. the issue was whether the Bill of Rights was applicable to restrain anyone other than Congress. Specifically, Cruikshank was complaining about the activities of a band of rioters which deprived persons of their constitutional rights. Your statement :. “The case explicitly denies that there is a constitutional right for “bearing arms for a lawful purpose.” Is incorrect. What Cruikshank said was this:

            “The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called, in The City of New York v. Miln, 11 Pet. 139, the “powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,” “not surrendered or restrained” by the Constitution of the United States”, United States v. Cruikshank, 92 U.S. 542, 552 (1876).

            Clearly, what Cruikshank is saying is that the right of “bearing arms for a lawful purpose” was not created by the 2nd amend, it preexisted the 2nd amend and that the 2nd prohibits the federal government from infringing upon same. This conclusion is verified elsewhere in Cruikshank when it uses almost identical language to describe the right of peaceably assemble protected by the 1st amend (note I said protected, not created or granted).

            “The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their “lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose.” The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States…. It was not, therefore, a right granted to the people by the Constitution. Id. at 551.

            So, in much the same way that the right to assemble was not created by the 1st the right to bear arms was not created by the 2nd. Both predated that instrument and the constitution merely protects them from infringement by the federal government.

            So what does this tell us about how Cruikshank viewed the nature of the right protected?

            According to Cruikshank, the right to arms is protected by the Second Amendment, but not created by it. It only prohibits infringement of that right by the federal government, not by state or local governments or by individuals … which was the case alleged in Cruikshank (that individual unlawfully prevented them from bearing arms). The Court’s then states that the freedmen must “look for their protection against any violation by their fellow citizens of the rights” protected by the 2nd from local or state government . Such an approach makes sense ONLY if the 2nd protects an individual right. If individuals have a right to arms, then they can ask local governments to protect them against “fellow citizens” who attempt to disarm them. Thus clearly Cruikshank stands for the proposition that the 2nd is an individual right which preexisted the constitution and which the 2nd protects from federal infringement.

            Next post Presser.

          • legaleagle_45

            OK we made it to Presser… and still no collective right asserted for any federal case.

            The issue in Presser was whether an Illinois statute which prohibited armed parades was unconstitutional by reason of the 2nd Amend.. The fact is that your 1st quote is actually a restatement of the common law … groups of armed men not authorized by law creates a breach of the peace and is not protected by the preexisting right to arms. 1 William Hawkins, A Treatise of the Pleas of the Crown 126 (1716) . However, even though correct, this is dicta as it then asserts that the 2nd only protects against federal infringement, not state infringement. Primarily, Presser is an incorporation case…. deciding whether any portion of the Bill of Rights is binding upon state action. ” the Second Amendment by its own force “is a limitation only upon the power of Congress and the National Government, and not upon that of the States.” Presser v. Illinois, 116 U.S. 252, 265 (1886)

            Now your 2nd quote. The Illinois statute complained of had a specific exemption for parades involving the regular militia and organized armed forces. Thus the prohibition only applied to private paramilitary groups. As I have demonstrated this law does not violate the right protected by the 2nd Amend, nor is their any other US statute that the Illinois law violates… That is what your second quote is all about

            Nothing in Presser establishes the 2nd as a collective right, or for that matter, an individual right. All it does is say that the 2nd Amend is not binding upon the state statutes and that even if it was the law which prohibits a parade of armed men would not be a violation of the right to arms.

          • legaleagle_45

            Now we are on Blackstone… Blackstone does more than merely talk about “natural law” he is speaking of the Laws of England, and the preexisting right to arms protected by the ENGLISH Bill of Rights. (emphasis intended) Here is the relevant quote:

            “The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”William Blackstone, Commentaries on the Laws of England,
            Book the First The Rights of Persons, Chapter the First : Of the Absolute Rights of Individuals, at 139 (1765).

            Blackstone certainly does not speak of the constitution or the 2nd Amend because his work predates the constitution and the 2nd Amend. His work is extremely important in understanding the preexisting right which “shall not be infringed”. You know, that preexisting right which Tucker and Rawle and Story and Cooly all said the 2nd was derived from? That Cruikshank referred to?

            So let us look more carefully at this right to arms which preexisted the constitution and is articulated in the English Bill of Rights.

            The historical context giving rise to the English Bill of Rights helps explain the nature of the protection intended by its provisions. It arose during the era of the Restoration. In 1671 Parliament passed a Game Act which provided that “person and persons, not having Lands and Tenements of the clear yearly value of One hundred pounds … are … not allowed to have or keep… any Guns.. The avowed purpose of the Game Act was to prevent illegal hunting, but the effect of the Act was to make the owning of firearms illegal for the vast majority of the population. King James II then used the Game Act as a ruse to systematically disarm his potential opponents, while at the same time creating a select militia, manned by his supporters (Catholics), in order to insure the security of his throne. This directly led to the “Glorious Revolution” and the accession of William and Mary to the throne. However, their accession was made conditional to their ratification of the English Bill of Rights, so as to guard against future similar abuse.

            Following the adoption of the English Bill of Rights, a series of English cases helped define the right to arms enjoyed by English subjects. These cases held
            that the Game Acts did “not extend to prohibit a man from keeping a gun for his necessary defence”. Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739).; “Tthe mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family . . .”Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744). “A gun may be kept for the defense of a man’s
            house.” Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The
            King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is “not an offence to keep or use a gun”), and Rex v. Hartley, II Chitty 1178, 1183 (1782) (“a gun may be used for other purposes, as the protection of a man’s house.”).

            Now do those quotes from Tucker and Rawle make more sense/

            You say Blackstone was not the only writer of the time… and that is true, but curiously you provide no quotes from any writer to demonstrate that any other writer disagreed with Blackstone. Why is that?

            Did you know that Madison in his notes for his speech to the 1st Congress on June 8, 1789 in which he introduced the Bill of Rights specifically referred to the English right to arms and indicated his version was superior because it was “not for protestants only” and it was not subject to a “mere act of Parliament”? James Madison, Notes for Speech on Constitutional Amendments, June 8, 1789, in 12 MADISON PAPERS 193–94 (C. Hobson & R. Rutland eds., 1979).

            Enough for now… I shall return with a critique of your reading of Aymette v. State … did you actually read that case or are you relying upon what others have told you?

          • legaleagle_45

            Devin Hughes wrote: “There is not a single phrase in the 2A that supports the individual rights view: “A well regulated Militia” (obviously refers to a collective) “

            A well regulated militia is a governmentally organized entity like the Army or Navy or FBI.

            Devin Hughes wrote: “being necessary to the security of a free State” (refers to a collective)

            A state is a political entity. In the US it is a subdivision of the Nation.

            Devin Hughes wrote: “the right of the people to keep and bear Arms shall not be infringed” (looks like it might offer support to the individual interpretation, but bearing arms back then meant military service (as explained in Aymette v. State of Tennessee (1840))

            Why did you leave out keep? Agreed that Amyette said “bear arms” meant military service, but merely because Amyette says it meant miltary service does not mean it is not an individual right nor does it mean the Amyette was correct in its analysis. Finally, Amyette clearly states the the right to KEEP arms is an individual right.

            Aymette involved the interpretation of the Tennessee analog of the 2nd Amend which then read:

            “That the free white men of this State, have a right to keep and bear arms for their common defence.”

            The case involved a law which prohibited the concealed carrying of a Bowie Knife. The court began its analysis by looking at the preexisting right to arms which they claimed the constitutional right was derived stating:

            “By the act of 22 and 23, Car. 2d, ch. 25, sec. 3, it is provided that no person who has not lands of the yearly value of £100, other than the son and heir apparent of an esquire, or other person of higher degree, &c., shall be allowed to keep a gun, &c. By this act, persons of a certain condition in life were allowed to keep arms, while a large proportion of the people were entirely disarmed. But King James the 2d, by his own arbitrary power, and contrary to law, disarmed the Protestant population, and quartered his Catholic soldiers among the people. This, together with other abuses, produced the revolution by which he was compelled to abdicate the throne of England. William and Mary succeeded him, and in the first year of their reign, Parliament passed an act recapitulating the abuses which existed during the former reign, and declared the existence of certain rights which they insisted upon as their undoubted privileges. Among these abuses, they say, in sec. 5, that he had kept a “standing army within the kingdom in time of peace without consent of Parliament, and quartered soldiers contrary to law.” Sec. 6. “By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law.”

            “In the declaration of rights that follows, sec. 7 declares, that “the subjects which are Protestants may have arms for their defence, suitable to their condition and as allowed by law.” This declaration, although it asserts the right of the Protestants to have arms, does not extend the privilege beyond the terms provided in the act of Charles 2d, before referred to. “They may have arms,” says the Parliament, “suitable to their condition, and as allowed by law.” The law, we have seen, only allowed persons of a certain rank to have arms, and consequently this declaration of right had reference to such only. It was in reference to these facts, and to this state of the English law, that the second section of the amendments to the Constitution of the United States was incorporated into that instrument. It declares that “a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

            Aymette v. State, 21 Tenn. (2 Hump.) 154, 156-157 (1840).

            Now lets see what the reason for the provision was, according to Aymette:

            “The evil that was produced by disarming the people in the time of James the second, was, that the King, by means of a standing army, quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the King to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands. No private defence was contemplated or would have availed anything. If the subjects had been armed, they could have resisted the payment of excessive fines, or the infliction of illegal and cruel punishments. When, therefore, Parliament says, that “subjects which are Protestants, may have arms for their defence, suitable to their condition as allowed by law,” it does not mean for private defence, but being armed, they may as a body, rise up to defend their just rights, and compel their rulers to respect the laws. This declaration of right is made in reference to the fact before complained of, that the people had been disarmed, and soldiers had been quartered among them contrary to law. The complaint was against the government. The grievances to which they were thus forced to submit, were for the most part of a public character, and could have been redressed only by the people rising up for their common defence to vindicate their rights.” Id.

            First note that the formulation adopted by Aymette was clearly and unmistakenly an individual right. The evil was disarming the people, not the militia or other entity. King James was using the ruse of the Game Act of 1671 to disarm Protestants of their individually owned weapons.

            However, it is also clear that Aymette got it wrong when it states “ it does not mean for private defence” as I have previously shown in numerous English cases that examined the issue. It is clear that self defense was indeed included. That is what Blackstone referred to when he stated that the 5th Auxiliary Right protected the the natural right of resistance and self-preservation. The right of resistance is a reference to resistance to governmental tyranny. The right of self preservation is a reference to self defense. It is not one or the other according to Blackstone, it is BOTH.

            Nevertheless, lets continue with Aymette. The court concluded that the protection afforded by the provision would only extend to those weapons useful for use in the common defense:

            “…so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.”Id. At 158 (Emphasis supplied)

            Thus Aymette allows the legislature to bar only those dangerous weapons which are not usual in warfare. As to those weapons which are useful for the common defense Aymette states:

            “The citizens have the unqualified right to KEEP the weapon, it being of the character before described, as being intended by this provision. “ Id at 160.

            What Aymette stands for is the proposition that the right to arms is indeed an individual right to participate in the common defense of the community by bearing arms and that they also have an unqualified individual right to keep such weapons that could be useful for that purpose.

            This was further expounded upon by a latter decision of the Tennessee Supreme Court in Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871). The statute at issue in Andrews made it unlawful to: “to publicly or privately carry a dirk, sword-cane, Spanish stiletto, belt or pocket pistol or revolver.”

            The court went into greater depth of what is meant by the terminology “keep arms”, stating:

            “The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish him for it, without violating this clause of the Constitution. But farther than this, it must be held, that the right to keep arms, involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace; that in such use, he shall not use them for violation of the rights of others, or the paramount rights of the community of which he makes a part.” Id. 178-179

            Well, it seems that we have an individual right being discussed here, don’t you think?

          • legaleagle_45

            Devin Hughes wrote: “Plus, if we look at the drafting history of the Second Amendment, parts that referenced an individual right were removed”

            You are of course, referring to the religious scruples clause. The 2nd Amend as originally introduced by Madison read:

            “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person”

            The real issue, of course is exactly why the religious scruples clause was removed. Here is the relevant portions of the debate on that issue:

            “Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms”. The Congressional Register, 17 August 1789

            Well, it sure appears that they feared that the federal government would use the religious scruples clause as a ruse to prevent individuals from exercising an individual right to bear arms. How about keep arms?

            “Mr. SCOTT objected to the clause in the sixth amendment, “No person religiously scrupulous shall be compelled to bear arms.” He said, if this becomes part of the constitution, we can neither call upon such persons for services nor an equivalent; it is attended with still further difficulties, for you can never depend upon your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army.” The Congressional Register, 20 August 1789

            Well, it sure appears that they feared that the federal government would use the religious scruples clause as a ruse to prevent individuals from exercising an individual right to keep arms as well

            Devin Hughes wrote: “and most of the discourse centered around a pitched battle between State and Federal (both of which are collectives). “

            Totally false. The debates in the 1st Congress were almost entirely about the religious scruples clause. The remainder dealt with issues such as adding “trained in arms” to a well regulated militia, and a prohibition on a standing army in peacetime without 2/3rds approval of Congress, both of these proposals were dismissed without further debate. The religious scruples clause was the primary focus of the debates amounting to at least 75% of the discussion.

            Devin Hughes wrote: “ It would have been quite easy for the founders to make and explicit reference to an individual right, like some state constitutions did (Pennsylvania for example). “

            Now let us go back to the claim made by you that Bear arms has an exclusively military meaning:

            1776 Pennsylvania: “That the people have a right to bear arms for the defence of themselves and the state”

            Seems like Pennsylvania is using bear arms in a non military context.

            1777 Vermont: “ That the people have a right to bear arms for the defence of themselves and the State “

            Vermont too…

            1790 Pennsylvania (revision): “ The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.”

            1792 Kentucky: “That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

            1802 Ohio: “That the people have a right to bear arms for the defence of themselves and the State”

            It sure does not appear that it is used exclusively in a military context…

          • Homeless Australian Dude

            and they’re back again. i’ll start with scott’s attempt at a response before moving to legaleagle who seems intent on writing a doctoral thesis that seems to inexorably expand in the comment section (for the sake of everyone, i’ll try to keep mine much shorter).

            line 1, dredd scott case: lol bro bro. the quote you reference is at the long end of a list that was intended to to provoke the reaction among southerners “my property would do what now?” the court doesn’t even talk about the 2a, and reading the 2a into this case, as many members of scotus explain, is a really dumb idea. even if it was making claims about the 2a, it never addresses the right to keep and carry arms for what purpose. this seems to be a consistent point of failing on both your and legaleagle’s part. the collective rights view says the people have the right to keep and bear arms, but that right is in the context of and for the purpose of maintaining a functioning militia.

            line 2, presser: so? the comments above have already established that keeping and bearing arms refers to a military function, very necessary for the maintenance of a militia.

            line 3, cruishank: an analogy is in order. a man walks into a sweet shop and up to the counter. he asks: “do you have chocolate ice-cream?” the manager replies: “nope.” the man then loudly proclaims to all in the shop “see, i told you guys this shop has chocolate icecream.” everybody in the shop facepalms. the manager replies “we don’t have chocolate ice-cream, but we do have chocolate chip cookies and chocolate bars.” the man again loudly proclaims “see, he spoke of chocolate ice-cream in context with other chocolate stuff. therefore, this shop carries chocolate ice-cream.” everybody is snickering now. the manager, his patience stretched thin says “look, we don’t have chocolate ice-cream, but the shop right across the way does.” the man proclaims, “see, because the shop across the way, which resembles this shop, has chocolate ice-cream, therefore you have it as well.” and so on

            there is a significant difference between constitutional rights and natural rights.

            next up, blackstone (who apparently is god, except when he tells you how to properly read a text, in which case he can be conveniently ignored): blackstone writes on natural and english law. the english law parallel to the 2a is Article VII of their bill of rights. Article VII though was written in different historical circumstances than the 2a, and plus Article VII doesn’t contain the same language and militia qualifier. also, it is patently clear that the english right was not unrestricted, and was not intended for personal defense, as mentioned in the case briefing for miller.

            miller paragraph: as the case clearly states and makes it abundantly clear, the 2a refers to a collective right: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

            law review paragraph: big, bold claim, made exponentially bigger as devin never states he has 60 law review articles in the 1800s. then you claim they are fictitious. translation: i’m too lazy to google. let’s see if the power of the internet can be brought forth to resolve this dispute…. 30 seconds later, boy that was tough:
            The Constitutional Right to Keep and Bear Arms and Statutes Against Carrying Weapons, 46 Am. L. Rev. 777 (1912).
            Right to Bear Arms, 16 Law Notes 207 (1913).
            Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms, 28 Harv. L. Rev. 473 (1915)
            Daniel J. McKenna, The Right to Keep and Bear Arms, 12 Marq. L. Rev. 138 (1928)
            John Brabner-Smith, Firearm Regulation, 1 Law & Contemp. Probs. 400 (1934)
            Willimina Montague, Second Amendment, National Firearms Act, 13 S. Cal. L. Rev. 129 (1939).
            there are five more before we get to the first one that advocates an individual rights interpretation (which is in 1960)

            concluding paragraph: apparently scott either can’t count or can’t read properly, as 5 justices supported the individual rights interpretation, and 4 supported the collective rights interpretation in dc v heller. whoops

            and it has nothing to do with being stupid. if you are going to interpret it that way, then i guess one would have to say all the justices that supported the collective rights view over 70 years were stupid, which is far more egotistical and simply dumb than saying 5 were. and that about sums up scott’s attempt.

            scott’s comment really was a laugh (if only to carry on the tradition of using the commenter’s words against him (or her)), as he doesn’t address any of the points devin raised and his shrill attempt at rebuttal was merely restating stuff he had previously said that held no more weight then than they do now (in fact much less weight).

            the only thing Scott gets correct is that the debate is pointless, as the scotus has, wisely or not and in the tradition of the living constitution, gone with the interpretation that it is an individual right, but one that can be regulated.

            and finally, an articulate gun advocate. kudos legaleagle, you make scott’s reply look even more embarrassing than it was to begin with by comparison. now, for your historical claims in your novella that is clearly meant to inspire and strike fear in the hearts of those who may disagree with you.

            your choice of quotes seems to indicate you don’t quite know what the collective rights interpretation of the 2a actually means, as a good portion of your quotes only strengthen that interpretation.

            start with nunn v. state. it very clearly endorses the collective rights view. how so? look at the end: “and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.” the reason the right to bear arms cannot be infringed is for the goal of preserving the militia. the reason the case clearly states that all should have the right to bear arms is to strengthen the militia. the right to bear arms is in no way divorced from its central purpose of maintaining the militia.

            next we look at the tucker quote. this deals with the natural right, and does not once reference a constitutional right. there is a difference. plus his claim about standing armies is factually incorrect.

            next up is rawle, who ironically provides great support for the collective rights interpretation in the selected quote. part 1 of his quote explains the necessity of the militia. he follows it with part 2, which explains “The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.” the definition of corollary is something that follows from something that has already been proved. that which this part follows is the necessity of the militia. the right to bear arms follows from the militia. this is the very definition of the collective rights view.

            next up, story, who once again indisputably reaffirms the collective rights perspective. the entire quote is a lament of the seeming indifference toward the militia system. not a single sentence expounding on how the 2a is an individual right. plus, in other writing, story explains the importance of interpreting documents based on the preamble.

            next up is cooley, who may be the only one that comes close to supporting the individual rights view. however, even here, cooley explains that the reason the right to bear arms isn’t solely limited to members of a militia is that the militia could be expanded in times of strife (and where would the new militia members get weapons) and that congress could simply disband the militia (and then nobody could carry arms). the purpose of the people bearing arms is to thwart attempts of killing of the militia. once again, the militia is the clear purpose of the amendment.

            so far we have gone through the constitutional commentators, and found much more support for the collective view than the individual rights interpretation. not a great start, but what seems like thousands more long comments await. onward to #2

            wow, this is getting really long… musical interlude time: http://www.youtube.com/watch?v=XfR9iY5y94s

            and we are back

            #2

            funny, there is no case that supports the individual rights view either before the “rouge” case you reference.

            as explained earlier the dredd scott case provides no evidence of the sort, and would require one to break all the rules of reading court cases as well as stretching that reading to an extreme to even come close to an endorsement of the individual rights view.

            as i explained in my on the fly analogy (and has been explained repeatedly above), cruikshank says there is no constitutional right. explicitly. period. tells you to go look elsewhere. end of story.

            #3

            so we have made it to presser, with barely any evidence (solely from cooley) and a lot of collective rights evidence from your own sources. as this will be much too long if i go through all of your statements thoroughly, i’ll skill your presser stuff as you don’t make any particularly strong claims.

            #4

            and we once again arrive at blackstone. he talks about natural rights and the english bill of rights. you know what both of those works lack? a preamble about a militia. do we know what blackstone thinks about preambles? that they’re really important. if the initial clause of the 2a didn’t exist, everything you have commented on so far would be 100% accurate. but it does.

            constitutional sick burn on the aymette. boy, the comment following that has got to be impressive…

            #5

            well… that was a tad underwhelming.

            first off, particularly for the US, the state is not a subdivision of the nation. the united states was a plural in the founders time, and up through the civil war. small, but important difference.

            next, the part about aymette being “clearly and unmistakenly an individual right.” you’ve got to be joking. did you even read what you quoted? from your quote:

            “When, therefore, Parliament says, that “subjects which are Protestants, may have arms for their defence, suitable to their condition as allowed by law,” it does not mean for private defence, but being armed, they may as a body, rise up to defend their just rights, and compel their rulers to respect the laws.”

            now you try to wiggle out of this by stating that aymette got it wrong (an interesting way to extricate oneself when the court disagrees with you, simply say they are wrong). however, the cases you cite refer to the game law, not the bill of rights. aymette’s interpretation seems very accurate, especially when taking into account the historical context.

            indeed, it is very clear the english bill of rights did not grant and individual right, it merely stated that parliament, not the king could decide whether protestants had the right to arms.

            the right to keep and bear arms is obviously a single right, otherwise it would have instead read the right to keep and to bear arms.

            #6

            as your quotes clearly showed, they feared that the religious scruples clause was a way to back-stab the militia, not some fear about the individual right. everything was couched in terms of militia service. and while you are right that the 2a debate was about the religious clause, the overall debate for the constitution and bill of rights was state vs federal.

            the only time the right to bear arms is not solely reserved for military action is when further context is provided. when it stands alone, as it does in the 2a, it clearly refers to military type service.

            well… that took a while, but in the end it should be patently obvious to the objective observer that your quotes really don’t back an individual right. but as i don’t want my comment to serve as an excuse for another set of absurdly long comments over a subject that is really silly (if gun control saves lives, why bother at all with this debate), i will leave it here

  • This is going to be a real simple refutation, because I don’t need pages upon pages going point by point to explain why you’re wrong. The only “freedom from” that you have is the “freedom from the elimination of choice.” What that means is someone is forcing you to take part in an act which you have no escape from or choice to take part in. When they talk about “freedom from religion” that means the State can’t force you to partake in a particular religion’s practice by force. A teacher praying before class is not an infringement on your rights, but a teacher punishing you for not praying with her is.

    Taking FDR’s comment about the Freedom From Fear of governments making the decision to go to war with undo haste to mean freedom from fear as a whole is disingenuous and a stretch. Especially using it as a means to disarm people because you’re afraid of guns when his own wife told the Secret Service to stay home while she and a friend went to Tennessee under threat of death by the KKK armed with a revolver. Eleanor was a true liberal. She genuinely cared about the impoverished in our country, and she had the, pardon the expression, balls to fight back with violence if need be.

    The truth is, you don’t have the freedom from fear, because there’s no telling what you’re afraid of. “I’m afraid of spiders, why isn’t the state spending money on the elimination of spiders?! It’s my right not to live in fear of spiders!” No, it’s your right to deal with spiders as you see fit. Just like its your right to deal with gun violence as you see fit. If that means staying locked up in your home 24/7 under a ballistic blanket in a safe room, by all means, but that does NOT give you the right to tell me what I can and can’t do. If my actions have caused you grievance then you can take me to court, but you do not get to tell me what to do to make you comfortable, period.

    You have the freedom of choice, you do not get to eliminate that freedom just because it scares or bothers you.

    • Well, your “refutation” basically overlooks every philosophical and societal advance we have made in human history, and is antithetical to the entire notion of a democratic state. To live in a civil and functioning society, we have to have freedom from certain actions, which necessarily requires curtailing some choice. If we don’t have freedom from, we end up in anarchy and, as John Locke explains, avoiding this outcome is the reason why society is formed.

      As Roosevelt’s quote shows, the war portion is merely one part of the freedom from fear (and even the war portion sadly applies). And yes, I’m sure he was referring to spiders… And nowhere in the post do I suggest disarming people. Simple gun regulations such as licenses would be sufficient.

      And even if we accept the naively simplistic idea that the only “freedom from” we have is the “freedom from the elimination of choice,” the framework still holds. In the public sphere, one person’s choice can directly infringe on the choices of others. When your desire not to be inconvenienced in the slightest by gun regulations means that children are denied the right to safety (necessarily removing their freedom of choice), then I and society have every right to tell you what you can or can’t do (on that particular issue).

      And so on.

      • Jeff O’

        You claim “When your desire not to be inconvenienced in the slightest by gun regulations means that children are denied the right to safety (necessarily removing their freedom of choice)”

        Children are already regulated into 100% safety; that’s what a gun free zone for! How’s that, rules don’t work? You really believe another regulation is really going to stop a criminal who’s already broken 23 rules?!?!

        Plenty of existing regulations didn’t stop all those idiots you write about above. For example: Background checks? Nope, the Navy guy sailed right through. Gun free zone? Didn’t stop Adam Lanza! Federal requirement that all handguns must go through an FFL background check? Didn’t save Zita’s life.

        This is the same old crap spewed by the far left since day one, standing on the graves of children and using emotion as their only tool to beget change. A lack of regulation does not in itself deny children the right to safety; but a lack of personal and parental responsibility does every time. With gun control just the opposite is true. Regulation, primarily in the form of gun free zones, has denied myself and the other teachers in my family the right to protect children as best we can. The left’s ridiculous fear of just seeing a gun and their failure to force personal responsibility in policy has left carnage in its wake.

        Gun control arguments continue to be circular and hold no water…. So why does the left continue pushing gun control? Because it is a slippery slope, to total control, of everything, and sadly, they aren’t smart enough to see their lives will still be miserable.

  • You argue that you want freedom from the 2nd Amendment. That’s fine. The way you choose to observe that is not to buy a firearm. The difference between you and I is this: I believe in the 2nd Amendment and I respect your opinion that guns are bad and therefore I do not try and force you to own one. You, on the other hand, do not respect my views and seek to take them away from me. So you see, I passively disagree with you and you forcibly disagree with you. Once you attempt to subvert my Constitutional Rights, I will forcibly disagree with you. Considering the only thing you have to support your position are lies and manipulated facts taken out of context, it shouldn’t be that difficult. I have a right to defend myself and, more importantly, my family. I am a citizen. I have a right to use whatever means (and arms) necessary to do this. I have a right to use a firearm to that ends if the circumstances require. When the bad guy is using a firearm (regardless of any law because they don’t follow the law), you can make damn sure that I will use a firearm as well. The simple fact is I do not, and will not, force my religious beliefs, firearms ownership, or tell you what you should or should not say. The simple fact SHOULD BE that you do the same. If you don’t want to worship… that is between you and your god (if any), if you do not wish to speak or if you wish to speak… that is between you and your conscience. If you do not like firearms… that is your choice. As far as I’m concerned those choices are none of my business and I will not try to sway your opinion or force a different opinion on you. YOU on the other hand… well that is a different story now isn’t it?

  • Homeless Australian Dude

    well, it certainly looks like the absolute lower bounds of “coherent” and “respectful” are being tested. i mean, just take a look at the two gun-nut comments right above this one. i’ll label ’em gun-nut 1 and gun-nut 2 for the time, an obvious homage to dr. seuss’ thing 1 & thing 2.

    gun-nut 1 apparently wasn’t informed of the fact that a slippery slope argument is a fallacy. this would be enough to instantly discredit anything further he had to say, but unfortunately he saved this pearl of illogical till the end of his comment so i had to read through the whole thing (shudder). the rest isn’t much better. by gun-nut 1’s logic, stop signs wouldn’t be necessary, as obviously criminals wouldn’t follow them, so why bother? fortunately, people who are even remotely sane recognize the idiocy of the “criminals don’t follow laws” argument (an arg that was utterly destroyed in an earlier post on this blog btw). it’s rather apparent gun-nut 1 didn’t read the article all that well (how the heck was his comment allowed up again?), as the whole idea behind the Navy shooting was that a background check should have included mental health history. the 100% regulated safety statement is complete crock. and Zina’s murderer got his gun online, a loophole sane people want to close and gun-nuts unsurprisingly want to keep open (why? who knows, basic logic seems to escape gun-nuts). plus, the vast majority of teachers recognize the idiocy of allowing arms into schools. only makes the children less safe. there is no evidence that armed guards are all that effective either. and gun control advocates using emotion as their only tool? you’ve obviously missed the memo that all the credible studies happen to disagree with gun-nuts (about basically everything, but who cares about science anyway?). the right’s worship of guns is about as dumb as it gets, and gun-nut’s denial of evidence is enough to make a global-warming denier blush with embarrassment. although, to be fair to gun-nut 1, tis basically impossible to find a gun-nut arg that isn’t overwhelmingly debunked by evidence, logic, and morality.

    then there was gun-nut number 2 who very clearly didn’t read the article and who’s argument sounds like a broken-down vinyl recording of a parrot that lived with Wayne-LaPierre for a dozen years. nowhere does the article (or any of the posts i’ve read on this site) suggest taking your guns away. the harshest regulation i think i’ve seen the authors suggest is an assault-weapons ban and a licensing system, both of which are perfectly constitutional according to the scotus. no right is unlimited mate.

    the only conclusion i can draw from the dismal comments above being allowed is that the authors wanted evidence for their implications that gun-nuts are fundamentally anti-evidence, anti-reason, and anti-compassion. and for some reason the gun-nuts obliged. i can only imagine that the authors are chuckling at the amount of stupidity displayed by the gun-nut comments above. Kudos to the authors. Well played.

    • Is the slippery slope really a fallacy? I think Prof. Eugene Volokh has published some good law review articles that make a pretty convincing case the slippery slope is real.

      http://www2.law.ucla.edu/volokh/slipperyshorter.pdf

      Also, I do tend to think compliance is a legitimate case when the law in question is meant to have a deterrent effect rather than to punish immoral behavior. Is it wrong to argue that the drug laws are ineffective at deterring people from consuming illegal drugs? Is it wrong to point out that all drug prohibition does is fuel a violent black market?

      Also, how much do you know about buying a gun online? Do you know, for instance, that its illegal for unlicensed people to ship firearms across state lines? That it’s illegal to ship a firearm by common carrier to someone who is not a licensee? In short, if you’re not a licensed dealer, there is no such thing as an online sale. You can arrange a sale online, but at the end of the day you have to meet someone in person. While it would technically be legal to ship a gun to someone in the same state, provided they are not a person prohibited from possessing firearms, there’s no common carrier that will accept a firearm for shipment if it’s not being shipped by a dealer, or being shipped to a licensed dealer or manufacturer for repair.

      Also, neither Adam Lanza, nor the Navy Yard shooter, had anything in their background that would have prohibited them from purchasing a firearm. That wasn’t any loophole. That wasn’t the system not having some bit of information in it that a more thorough background check would have found. In many of these cases, the people that end up doing these mass killings just slip through the cracks in the mental health system. In order for mental health checks to work, there has to be someone willing to take a case before a judge and have the person adjudicated. Then he or she will be in the system. But that doesn’t happen, and that’s the problem.

  • legaleagle_45

    The weakness of those who dispute the individual right thesis articulated in the Heller decision is their inability to articulate an alternative meaning which provides any substantive protections for a “well regulated militia”

    We start with the initial framework agreed to by all 9 justices in Heller, from Breyer’s dissent:

    “In interpreting and applying this Amendment, I take as a starting point the following four propositions,
    based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

    (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately
    enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 STEVENS,J., dissenting).”

    Ok, just what could the government possibly do to violate the version of the 2nd amendment which is espoused by those who oppose the version articulated by the Heller decision? In evaluating your response, keep in mind the following:

    1.) That the government routinely disarms individual members of the National Guard when they are not actively engaged in combat or in training, requiring the weapons employed to be stored in an armory.

    2.) In response to shortages experienced in Gulf War II, whole units of the National Guard were stripped of their arms and equipment as they were rotated out of Iraq so as to better equip the units which were rotated in.

    3.) The personally owned weapons of a National Guardsman can not be used in combat without the permission of their Commanding Officer.

    4.) In April 1917, the US Government completely eliminated the entire “well regulated militia” by the simple expedient of drafting them lock, stock and gun barrel into the regular armed forces so they could be shipped overseas. When the states complained, the undersecretary of War told them that they “must fend for themselves”. A unanimous Supreme Court subsequently placed their seal of approval upon this action in Arver v. United States, 245 U.S. 366 (1918).

    The government has in the past and continues to this day to determine who can be part of the well regulated militia and exclude those that it does not want.. In 1792 restricted membership to: free able-bodied white male citizen” between 18 and 45. When Massachusetts wanted to include in its militia free black male citizens in their militia, they were told they could not because of Federal preemption. During various periods of time, women have been excluded and openly homosexuals have been excluded yet no one, not even the ACLU has argued that the 2nd Amendment prohibits this– they argue other portions of the Constitution such as equal protection prohibit this, but curiously they do not assert the 2nd amend.

    OK, what we have is that the Government can completely eliminate the well regulated militia, they can disarm individual members of the well regulated militia, they can strip whole units of the well regulated militia of their arms and equipment and they can exclude whomever they wish from service in the well regulated militia.

    So what could the government possibly do to violate Breyer’s version of the 2nd Amend “that is separately possessed, and may be separately enforced, by each person on whom it is conferred”?

    An aside to Evan DeFilippis who states above:

    “Congressional Sub-Committees do not interpret the law”

    I would like to point out that “Former U.S. Attorneys General Nicholas Katzenbach, Ramsey Clark, Elliot L. Richardson, Edward H. Levi, Griffin B. Bell, and Benjamin R. Civiletti” do not interpret the law either.. and I would like to see a citation to a federal court case which is more than 200 years old which supports their assertion that:

    “For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; ”

    Perhaps you could provide a citation to such a case circs 1813 or earlier? If you can not then I would suggest that the assertion of “[f]ormer U.S. Attorneys General Nicholas Katzenbach, Ramsey Clark, Elliot L. Richardson, Edward H. Levi, Griffin B. Bell, and Benjamin R. Civiletti” is not credible.

  • The BOR is a charter of Negative Rights. Why? Because positive rights are not really rights, especially your “freedom from fear” which is not a right whatsoever.

    Let’s say, as a hypothetical that one person is afraid of a person openly carrying a gun. He believes he has a “Freedom from fear” that means he can keep the person who creates that “fear” from exercising his constitutional rights by Open carrying. Lets say the open carrier also believes he has a “freedom from fear” and carries because of that “freedom”

    How can both parties “Freedom from Fear” be realized in the above scenario? The answer of course is that they cannot be. Freedom from fear means nothing. You have no right not to be afraid, and you certainly have no right to say that because you have a “right” to be free of fear, that I should be disarmed.

    If you have an irrational fear of blacks & whites co-mingling does that mean I shouldn’t be allowed to go out in public with my black roommate, because it scares you and you have a “freedom from fear?” Of course not. You can’t just say “I’m afraid, therefore I am going to deny you your rights.” America doesn’t work that way.

  • Anthony William

    LOL @ http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2759797/

    Are you seriously going to use the Branas study? The same study that even Wintemute called out on being utter garbage?

    http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866589/

    The same study that threw in gang bangers and drug dealers with people without any criminal histories? The same study that didn’t even bother control for the fact that if any of the people shot had concealed-carry permits for their guns?

    With all due respect, are you guys serious?

    I don’t have time to go into the other studies you guys linked. It suffers from the same problems such as reverse-causation and not bothering to adjust for variables such as the same gun that killed the victims was the same gun being stored in the house, or brought from outside? The infamous Kellermann study didn’t do that as well, neither did the Dahlberg, and Weibe study despite both of those showing a far less risk factor for homicides in the home despite not controlling for criminal or arrest records for the decedents.

    http://hsx.sagepub.com/content/5/1/64.abstract

  • Wade Craig

    I’m interested in what framework you are using to justify gun control from a rights perspective. By “right” I mean a claim that it is legitimate to use force to fulfill (I have a property right in a thing, it is legitimate for me to force a thief to give it back, but not to force him to apologize, because he has a right to freedom of speech). It’s my view that any right to self-defense (by whatever, irrelevant means) precludes the possibility of other rights. Still, I’m curious as to what way you think is best to derive what natural rights a person has and which right(s) justify gun control.

  • topkek

    explain why homicides did not decline after the uk banned handguns

    explain why the homicide rate in australia remained stagnant

    http://www.aic.gov.au/dataTools/facts/factsFigures.html

    • ayylmao

      I am not harming anybody’s negative liberty when I choose to own a gun. I believe in the NAP.

      This is why suicide is a terrible argument. If I want to kill myself or destroy my body, it is my liberty to do so. I have the freedom to make that decision, even if it’s the wrong and irrational one. Even if it’s permanent and irrversible.

      Much like how I don’t smoke cigars in public, but I freely do so in the confines of my own home. You do not have the freedom to be free from gun violence that doesn’t impact your physical safety in any way.

      I choose what risks to take.

  • capncrunched

    An interesting aside: In George Orwell’s “1984”, the word “freedom” had been redefined to mean “freedom FROM” (as in “this dog is free of lice”) as opposed to “freedom OF”. The society depicted in “1984” was a disarmed society to boot.
    Be careful of what you wish for! (Orwell knew what he was talking about… it’s no coincidence he’s on record as having said he’d like to see a rifle in every worker’s cottage in England.)

  • Mischief

    Your arguments about history are rather convincing and well thought out, however, your knowledge about firearms doesn’t make you look too convincing to people who actually own and use guns. For Tuscon, the shooter did use a handgun, but his biggest flaw in his strategy is the 33-round Glock magazines he used was his downfall. Thirty-three rounds of 115 grain 9mm is heavy and unbalanced which help cause him to loose momentum. If he used standard magazines like the 15 or even 17 round magazines (BTW it’s a magazine, NOT a “magazine-clip”) he could have reloaded swiftly like any military, police, or competition shooter would demonstrate. Or the Virginia Tech shooter did with 30+ dead done with two handguns. One 9mm Glock and a Walther P22 chambered in .22LR.
    The Sandy Hook shooting was not done with an “Assault Weapon” under the definition of the 1994 Crime Bill, the AR-15 did not qualify as an assault weapon. Connecticut adopted the AWB after the sunset. By calling it “military grade” doesn’t actually mean anything. If I say that I bought a “military grade” multi-tool, does that make it lethal? AR-15 and AK-47 type rifles are a favorite among gun owners because they are light-weight, ammo is cheap, and they run reliably. Taking the pistol grip off an AR doesn’t make it less lethal just like adding a pistol grip to a Ruger 10/22 doesn’t make it more lethal. You say that military-style weapons are the weapon of choice, but I’m not seeing them as much as I see handguns and other weapons. It’s the first thing I look for, too. “Assault rifles” get all the publicity, but if it’s another not an assault weapon, they don’t mention what it is until after the fact.
    The Navy Yard shooting was done with a Remington 870 pump-action shotgun. A favorite of hunters and sportsman. I’m surprised that of all the mass shootings you could have put in your article, you had to include a shooting of each type of gun common to the public. Does this mean that if they theoretically banned “assault weapons” and keep seeing shootings, they may feel the need to continue banning guns? We gave you so much already, the NFA 1934, Gun Control Act 1968, executive orders, even ten years of a stupid law like the AWB which even in theory did nothing because it banned firearms that had features that didn’t enhance the gun’s lethality. Even the AK and AR were not banned, but had cosmetic changes to strip these banned features. When does it end? When are you satisfied?

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