Right to Arms in the 21st Century

Off Topic Politics & World Issues
221

[quote]Sloth wrote:

[quote]smh_23 wrote:

[quote]Sloth wrote:
But, again, it isn’t infringement because it is not only not his property[/quote]

The Second Amendment doesn’t read, “the right of the people to keep and bear Arms shall not be infringed on people’s own property.” It reads, “shall not be infringed.”

[quote]
it is the property of others as a whole.[/quote]

This property is one on which the Bill of Rights legally obtains, and these “others as a whole” are citizens, qua their elected and appointed representatives (the state), who are literally the subject (the ones who “shall not”) of the Bill of Rights.

[quote]
It is not his house to set the rules.[/quote]

No. It is a public house, on which rules are set by the subjects of the phrase “shall not.”

[quote]
He may continue to carry his nuclear device off the property.[/quote]

No – the fringe absolutist theory of the Second Amendment is unambiguous (i.e., reductive, simplistic): “the right of the people to keep and bear Arms, shall not be infringed.” Shall - not - be - infringed. And by whom shall this right not be infringed? By government, its appointees, electives, and representatives – Congress, at first, and then, by way of incorporation, governments in toto. Your “it’s our house” theory is nonsense (or bullpucky, if you prefer, for which word I thank you). The court is public property, kept and controlled in accordance with the directives of public representatives, agents, appointees – the precise place on which the right to keep and bear arms shall not be infringed, and the precise group who shall not do the infringing.[/quote]

  1. You forget that property owners have the right to set rules and bar people from their property if those rules aren’t met. It’s no different with a business or courthouse. If I tell you you must refrain from talking upon entering my property you’re free to move on and say to heck with me. Same with the court. Unless of course it’s your trial.[/quote]

The “property owners,” and the “rules” they (i.e., we, our representatives, qua the representative state we constitute) set, are explicitly constrained by the Bill of Rights, which, per an absolutist reading of the text, bars the former from including among the latter anything that infringes upon the right of the people to keep and bear arms. I have made this point a number of times now and it has to be dealt with. Your “the property owner gets to set the rules” line of reasoning is invalid because the property owners are literally the subject of the phrase “shall not.”

[quote]
2. Glad to see you point out exactly what the 2nd DOES say. In trying to use the text as it actually reads to persuade me with scary situations you ended up pointing out what it says, not what you wish it says.[/quote]

I am reducing your argument to the absurdity that forms its foundation. It’s as simple as that.

Same, and you too (watch for those nuke-toting citizens!).

222

[quote]smh_23 wrote:

[quote]usmccds423 wrote:
Smh, I still don’t understand how you can basically ignore the phrase “necessary to the security of a free state”. Maybe you aren’t ignoring it, but that is what it seems like to me?[/quote]

As I said a while back, that is the prefatory clause. The operative clause is “the right of the people to keep and bear arms, shall not be infringed.” The meaning of these fourteen words, in the English language, in this order, from an absolutist textualist perspective (as you and Sloth have adopted), is clear and exact. Even if the former clause can give us information about the Founders’ frame of mind, it does not operate directly, syntactically, on the latter. The text could read “blue monkeys being predisposed to heroin addiction, the right of the people to keep and bear arms shall not be infringed”…and the explicit directive – right people keep bear arms not infringed – would remain the very same.

If you deny this, and can show that you have good reason to deny it, this conversation will change drastically and not in a way that benefits your argument. Which is exactly why Scalia et al. distanced the clauses from each other.

[quote]
I also think there is a difference between “keeping” and “bearing” as it related to what is “necessary to a free state”. TB and I touched on this early on, but sort of dropped it. I don’t believe It is necessary to bear arms in a court room where your brother is being sentenced to a crime after being afforded due process in order to fulfill the phrase “necessary to the security of a free state”. [/quote]

Whether you believe it necessary or not, your absolutist reading of the (imperative) directive created by the operative clause leaves no room for you to “think there is a difference between ‘keeping’ and ‘bearing’” – neither is afforded any greater or less protection from infringement, and neither is made contingent upon your understanding of what is “necessary.” They are, simply, not to be infringed. This is the price of the framework within which you read the Constitution.[/quote]

Thanks.

223

[quote]pushharder wrote:

[quote]usmccds423 wrote:

[quote]pushharder wrote:

[quote]Bismark wrote:

[quote]Sloth wrote:

[quote]Bismark wrote:

Militiamen could be supplied from an armory. Guerrillas get by on less. It’s called asymmetric warfare for a reason. Counterinsurgency doctrine calls for 20-25 counterinsugents for every 1,000 residents. Given the size of the US and its population of almost 320 million, that’s 6,400,000 troops. China’s army is 1,250,000 strong. They’d be in for a rough go even if one ignores the stopping power of water and the unrivaled US military.

http://strategicstudiesinstitute.army.mil/pubs/parameters/Articles/09winter/goode.pdf

http://www.people.fas.harvard.edu/~plam/irnotes07/Mearsheimer2001.pdf
[/quote]

That’s great and all, but the 2nd isn’t dealing with a right to access an armory. Its deals with the right of the people to keep the arms. Not sarcastic, by the way. Appreciate the links you bring. I try to make time to read one or two when I can.[/quote]

I get that. I’d be fine with potential militiamen maintaining assault rifles if the US took the Swiss approach. American males would undergo training administered by the US Army and would remain part of the militia in a reserve capacity until age 30 (age 34 for officers). When their period of service has ended, militiamen would have the choice of keeping their personal weapon. Heavier weapon systems would be accessed at
military facilities in times of national emergency.[/quote]

I think this would be fine too. I don’t think, however, the 2nd Amendment should be retooled to mean that this was the “original intent” nor should any retooling occur that restricts existing gun rights to those who don’t participate in this program.
[/quote]

I’m surprised. I do not agree. I think it would be a bad idea to force males that want to be armed to undergo army training and then serve some quazi militia reserve duty for 12 years. The enormous cost of such a program is one thing. The central government training the state militia’s is another thing entirely. Bad idea, imo. Circumvents the entire counterbalancing purpose of the militia. [/quote]

Oh, I didn’t say anything about “force.” But receiving good training would help not hinder any future action against tyranny. I also don’t necessarily believe a 12 year term should be a requisite. [/quote]

I’m glad you clarified because Bismark essentially did.

[quote]
Let’s face it, there’s too many American males, females too for that matter, that have no clue on how to operate firearms and many of them are scared shitless of them, like they’re the Ebola virus or something. [/quote]

Agreed.

Better.

224

[quote]pushharder wrote:
Usmc, I also don’t necessarily believe the Army has to be the administrator of the suggested training. In fact, it oughta be the states, just like in the good, ol’ days.[/quote]

I agree it should be the states.

225

[quote]smh_23 wrote:

Same, and you too [/quote]

Don’t have time to argue today, wish I did though as I love the 2nd argument.

Anyway, if you could check your email, smh, that would be great, thanks.

226

[quote]countingbeans wrote:
Anyway, if you could check your email, smh, that would be great, thanks. [/quote]

I read that in the voice of the Office Space manager.

227

[quote]usmccds423 wrote:

If the American Patriot had to rebel against the full force of the U.S. military what arms would be “necessary to the security of a free state”?[/quote]

Giving every individual in the U.S. their personal nuclear bomb would probably be the ultimate deterrent against not only government intrusion, no?

228

[quote]magick wrote:

[quote]usmccds423 wrote:

If the American Patriot had to rebel against the full force of the U.S. military what arms would be “necessary to the security of a free state”?[/quote]

Giving every individual in the U.S. their personal nuclear bomb would probably be the ultimate deterrent against not only government intrusion, no?[/quote]

I don’t understand the question?

229

[quote]usmccds423 wrote:

[quote]Bismark wrote:
So a private American citizen has a constitutional right to produce and maintain chemical, biological, radiological, and nuclear weapons? To what end? Is his doing so necessary to the security of a free State?
[/quote]

If the American Patriot had to rebel against the full force of the U.S. military what arms would be “necessary to the security of a free state”?[/quote]

You assume the military would remain a monolythic actor. I suspect their would be widespread defection in the event of a popular insurgency. Not CBRNs, to be sure. Forget that it’s a really, really, bad idea. Anyone who believes that private citizens are not only legally entitled to nuclear weapons and other unconventional weapons via the Constitution but that it would be prudent for them to maintain such arsenals as a hedge against domestic tyranny is ignoring a vast swath of domestic and international law that supersedes any supposed right to CBRNs. The Non-Proliferation Treaty alone sinks that ship.

230

[quote]Bismark wrote:

[quote]usmccds423 wrote:

[quote]Bismark wrote:
So a private American citizen has a constitutional right to produce and maintain chemical, biological, radiological, and nuclear weapons? To what end? Is his doing so necessary to the security of a free State?
[/quote]

If the American Patriot had to rebel against the full force of the U.S. military what arms would be “necessary to the security of a free state”?[/quote]

You assume the military would remain a monolythic actor. I suspect their would be widespread defection in the event of a popular insurgency. Not CBRNs, to be sure. Forget that it’s a really, really, bad idea. [/quote]

I didn’t assume anything. I’ve written on her multiple times that I believe wide spread defection would occur give the right circumstances. Go read the Jade Helm thread for an example.

[quote]
Anyone who believes that private citizens are not only legally entitled to nuclear weapons and other unconventional weapons via the Constitution but that it would be prudent for them to maintain such arsenals as a hedge against domestic tyranny is ignoring a vast swath of domestic and international law that supersedes any supposed right to CBRNs. The Non-Proliferation Treaty alone sinks that ship. [/quote]

Not only do I not think it is prudent, I think it would be a terrible idea. I even said so right in this thread. Jesus Christ dude…

What “domestic and international law” supersedes the Constitution?

231

I think that I have fixed the Second Amendment, by clarifying some of its ambiguities:

A powerful national military, being necessary to the security of a nation, the right of the people to keep and bear the arms with which they were born, shall not be infringed.

I’ve also taken the liberty of composing a new amendment:

We were just joshin’ about the whole amendment process; just ignore any part/s of this document that you don’t like.

233

I liked the question earlier about unreasonable searches. It doesn’t say ALL (or some, for that matter) unreasonable searches.

Additionally, the 2nd doesn’t say “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 at all times/some of the time.”

Therefore, the US has been empowered by the constitution to strip all arms ownership for every citizen for at least dozens of years at a time. Generations of gunless citizens, so long as at SOME time in history gun-ownership was allowed. Because, hey, it doesn’t say at all times.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It simply says "prohibiting the free exercise (of religion)…It doesn’t say some or all religions, so we’re free to interpret it as to mean we could ban Islam simply because we don’t like it. Or, at least have muslims registered. Next, it says nothing explicitly about the free exercise of non-religion. It simply says we can’t have an established religion. We can not choose between the religions to lead the government, in other words.

The “some” and “all” objections turns the constitution into a clean slate to do whatever the hell can be imagined. Without even having to go back and revisit the constitution for amending. I simply can’t believe people who take pride in being the citizen of representative constitutional republic are so willing to transfer that much power (nearly limitless) from the legislative to the judiciary. I find it absolutely terrifying. Terrifying because of just how badly this can be abused.

I’m too busy to keep myself locked down in one thread. Done and on to the next when I have the time.

234

[quote]pushharder wrote:

[quote]Bismark wrote:

“That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, … every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock.”

[/quote]

BTW, this portion of the Constitution never has been amended or repealed. In other words, it is in effect TODAY. Both you young fellers are in the militia right now whether you realize it or not. And both of you, and other males in that age range are mandated by the Constitution to be armed with your own personal firearm provided for by yourself.[/quote]

Well, I’m covered.

235

[quote]pushharder wrote:
You know you have a weak argument when you’re forced to take the extreme example of personal nukes.

If the only way you can justify the banning of 11 round magazines is to incessantly blow your trombone about backpack nuclear weapons, Houston, you gotcher self a problem. It’s “OK” to mention nukes but when sink your footings into that one example and build your entire edifice on it you’ve got yourself a house of cards.[/quote]

I’m certainly not doing this. Quite to the contrary, actually. It is, however, really fucking stupid to read the 2nd amendment and assume there exists a legal conduit for the manufacture and possession of chemical, biological, radiological, and nuclear weapons.

236

[quote]NickViar wrote:
A powerful national military, being necessary to the security of a nation . . .[/quote]

Only a fool would deny this.

237

[quote]Bismark wrote:

[quote]pushharder wrote:
You know you have a weak argument when you’re forced to take the extreme example of personal nukes.

If the only way you can justify the banning of 11 round magazines is to incessantly blow your trombone about backpack nuclear weapons, Houston, you gotcher self a problem. It’s “OK” to mention nukes but when sink your footings into that one example and build your entire edifice on it you’ve got yourself a house of cards.[/quote]

I’m certainly not doing this. Quite to the contrary, actually. It is, however, really fucking stupid to read the 2nd amendment and assume there exists a legal conduit for the manufacture and possession of chemical, biological, radiological, and nuclear weapons. [/quote]

Olympic level mental gymnastics here folks…

238

[quote]Bismark wrote:

[quote]NickViar wrote:
A powerful national military, being necessary to the security of a nation . . .[/quote]

Only a fool would deny this.[/quote]

"The English republican views on the relationship between arms and democracy profoundly influenced the views of the founding fathers.122 Both the Federalists, those promoting a strong central government, and the Antifederalists, those believing that liberties including the right of self-rule would be protected best by preservation of local autonomy, agreed that arms and liberty were inextricably linked.

The first discussion in which these views were articulated occurred in the context of Article 1, section 8 of the Constitution concerning the powers of Congress to raise a standing army and its power over the militia. As initially proposed, Congress was to be provided the power to raise armies.124 Objections were raised that there was no check against standing armies in time of peace.125 The debate focused on how to avoid the dangers of a standing army; there was no dispute that a standing army posed a significant threat to the liberty of the people.126 The dilemma was that some type of national army would be necessary in time of war, but the results of waiting until war occurred to raise a national army could be disastrous.

The solution adopted was two-fold. First, Congress would have the power to raise an army but no appropriation of money for that use could be for more (pg.1023) than two years.128 Because the people controlled the House of Representatives and the Senate, and Congress controlled the purse, the people were given an effective check against the dangers of a standing army. The second check against the dangers of a standing army was provided by the existence of the militia. Again, however, the necessity of providing for the common defense had to be satisfied while guarding against the national government’s abuse of power.

If the danger of a standing army was to be limited, the militia, which was then under the control of the states, must be available to meet national emergencies until an adequate standing army could be raised. Thus, the national government needed the power to call upon the militia. Conversely, the existence of a militia independent of federal control was deemed necessary as a check on the standing army which Congress was authorized to raise.129 The resolution was to provide Congress with the power to organize, arm, and discipline the militia and to govern such parts as may be called into federal service, but to reserve to the states the appointment of officers and actual training of the militia.130 The drafters of this particular language hastened to point out that the power to organize, arm, and discipline was intended only to allow Congress to prescribe the proportion of men to officers, specify the kind and size of arms, ensure that men were armed in fact either by themselves, the states, or by Congress, and to prescribe exercises.131 The States were to be in control of the militia by reason of the power to appoint officers and provide for the actual training.132 The national government would be in control of the militia only when the militia was called out for national service and, even then, would have to rely on the State appointed officers to execute its orders."

http://www.constitution.org/2ll/2ndschol/89vand.pdf

Emphasis mine.

239

[quote]Bismark wrote:

[quote]pushharder wrote:
You know you have a weak argument when you’re forced to take the extreme example of personal nukes.

If the only way you can justify the banning of 11 round magazines is to incessantly blow your trombone about backpack nuclear weapons, Houston, you gotcher self a problem. It’s “OK” to mention nukes but when sink your footings into that one example and build your entire edifice on it you’ve got yourself a house of cards.[/quote]

I’m certainly not doing this. Quite to the contrary, actually. It is, however, really fucking stupid to read the 2nd amendment and assume there exists a legal conduit for the manufacture and possession of chemical, biological, radiological, and nuclear weapons. [/quote]

Well, no. You’re neglecting that there isn’t in a thing there to exclude nukes or bio-chem weapons. I honestly don’t get the reluctance to admit the 2nd, in of itself, doesn’t exactly account for modern science and engineering. Which isn’t exactly the end of the world as we do have constitutional processes to amend the paper. There would be nearly universal support to ban the private ownership of these extreme examples. Surely nobody doubts just how easily nukes and anthrax would be banned. Even conventional artillery would be a slam dunk.

Nope. The reason why this avenue is avoided is because the constitutional banning of certain rifles (the usual suspects) would likely be difficult. There would be a rigorous debate that would then lead to a more representative process for the outcome. Instead of hoping a few judges can divine something new out of the 2nd amendment all of a sudden.

Ok, now I’m done. I’ve got about a one thread limit these days, and I’ve spent way too much of it in this one.

240

[quote]pushharder wrote:
You know you have a weak argument when you’re forced to take the extreme example of personal nukes.

If the only way you can justify the banning of 11 round magazines is to incessantly blow your trombone about backpack nuclear weapons, Houston, you gotcher self a problem. It’s “OK” to mention nukes but when you sink your footings into that one example and build your entire edifice on it you’ve got yourself a house of cards.[/quote]

I would suggest that one knows one has a weak argument when one is loathe to sit up and state/defend one’s own position.

We/I would not have to adduce the example of nuclear weapons if the fringe absolutists would screw their courage to the sticking place, explicitly say their piece, and make plain the contours of their position – from the outset. Sadly (though not surprisingly, given the particulars), this doesn’t tend to happen. So we often get absolutism, shoddily disguised. Nuclear weapons happen to very effectively unmask the impostor, and any objection to their being used to this effect is an admission of the weakness of the offended party’s position, nothing more.

Anyway, as I said before, this kind of thing – carrying positions out to their ends in order to test their logical implications – is highly useful and, indeed, a fixture during SCOTUS arguments. Logical exploration – vis-a-vis nukes, or pipe bombs in courthouses, or the Brandenburg test, or commercial speech – shows us very clearly, for example, that an unqualified Constitutional right is not by this fact necessarily illimitable, and to suggest otherwise is an ahistorical ( <---- I cannot stress this enough) fringe theory glad of its own absurdist chains. And the presence of this theory must be discovered before anything else is said about the Second Amendment. Otherwise there is no point (like, say, arguing about whether barbecue is best in Texas or South Carolina – with a vegetarian).

Having said all that, I endorse what you’ve said about militias and how these could function to the benefit of both our Constitutionalism (lack of a better word) and our realism.