The Commentary
The Gun Control debate.

Thursday, June 05, 2003  

Should I Wait Until You're Finished?

Or respond to this piece? (Edited to add:)

Before I can go much further, I apparently have to clarify something, because it appears I'm not explaining myself to you. You say:"You've failed to convince me that the Second Amendment grants US citizens a blanket right, without restrictions to keep and bear arms."

Well, that might be because that's not what I'm trying to convince you of. I have said:

Neither the Second Amendment nor any of the other members of the Bill of Rights "gives" anybody anything
Just reinforcing that point. You're still using the "grant" language. The Second Amendment protects the right to arms.
So the right in question in the Second Amendment is "the right to keep and bear arms" - a right fully recognized prior to the Bill of Rights, and designated as inalienable by the Second Amendment.
Thus when our Founders wrote the Second Amendment, no such limitations were placed, so that the ABSOLUTE right of the individual could not be similarly stripped through legal maneuvering.
That's the ideal, as I explained in this point:
Halleluja! The right is individual, but not unlimited! The difference is, whatever restrictions (at this time) the FEDERAL government wants to place on the right must be "narrowly tailored specific exceptions or restrictions" and (elsewhere in the decision) due process must be followed in order to deny an individual his rights.
and this one:
If his right to arms has not been restricted through due process of law, YES
and finally:
It's treated as one for each and every new attempt to infringe on it, and each new infringement should have to pass strict legal scrutiny to A) determine if that restriction is sufficiently narrow and limited, and B) ensure that due process has been met.
Let's see if I can paraphrase and analogize: The First Amendment proclaims "Congress shall make no law...abridging freedom of speech..." yet we have laws that do just that. You cannot slander or libel. There are penalties for shouting "FIRE!" in a crowded theater when there is no fire. Having sex in public is not "protected speech" but making a video of it and distributing it on DVD is.

So Congress HAS made laws abridging "freedom of speech." How has this happened? Because when such laws are passed and challenged in court, they receive a "strict scrutiny" review. Not all do, but most. In addition, they receive an "original intent" review - what did the Founders intend when they wrote the Constitution and the Bill of Rights? However, the Second Amendment guarantee of the right to keep and bear arms hasn't received the same treatment. It remains the only "right of the people" not protected by the Federal government against state infringement. The only time it has received anything near a "strict scrutiny" test, the right was found to be an individual one.

What I'm saying is: The Second Amendment protects an individual right to arms every bit as important as the individual right to free speech. The right to arms should receive the same protections and the same treatment in court as the right to free speech, and it has not. Exactly what the scope of that right is has never been defined, and because it does not receive the protections the other "rights of the individual" receive, it is at risk of vanishing. The Ninth Circuit Court of Appeals has, in effect, rescinded the right to arms for the states in its circuit (and Arizona, where I live, is in that circuit.) That means there is no legal inhibition if, say, the legislature of California wanted to pass a complete weapons ban. The only thing that prevents it is public opinion, and forces are working hard to change that opinion.

What I am trying to convince you of isn't that there is a "blanket right" (perhaps I'm misunderstanding your expression). I'm trying to convince you that the LAW says that Americans have an individual right to keep and bear arms, that that right has not received the same legal treatment as all other enumerated rights, that the reason it has not is rooted in racism, but is now flowering in Statism, and that the end being pursued is the same that has occurred in England - disarming of the law-abiding populace, and elimination of the right to self-defense. The Second Amendment was written to prevent this, but it has been illicitly circumvented.

Have I made my point clear?

posted by Kevin | 15:47

Wednesday, June 04, 2003  

Sorry, been very busy recently.

This thing is getting slightly out of hand, and needs to be cut down to size, so I'm going to be a bit brutal.

1. You've failed to convince me that the Second Amendment grants US citizens a blanket right, without restrictions to keep and bear arms. I feel that you're mixing and matching quotes from Blackstone and Tucker, blending their opinions (and let's remember that's all they are) with your own interpretation. Basically, I don't interpret the Second Amendment as having removed the limits, implied by the English Bill of Rights, on the right to keep and bear arms.

However, even if we completely set aside that whole argument (i.e. over what the Founders originally intended the Second Amendment to mean), I would still have cause to maintain my position, because limits have been imposed by the US government on who is entitled to keep and bear arms (e.g. felons are excluded), how arms may be borne (e.g. not concealed) and what arms may be kept and borne (e.g. the assault weapons ban). If these limitations are unconstitutional, then why have they not been struck down in the courts, or, if the courts are failing to uphold the Constitution, why hasn't there been a revolution?

Skipping over the digression on the nature of government and the differences between a monarchy/dictatorship and a republic/democracy.

2. You write:

When it comes to the Second Amendment there is no evidence that anything other than an individual right to arms was intended, and abundant evidence that an individual right is what was intended.
I disagree that the issue is that cut and dried. To me, mention of a "well-regulated Militia" in the Second Amendment places the right to keep and bear arms enumerated therein, into a particular context.

However, I must admit that I am conflicted, because you have pointed out that the source of the right to keep and bear arms is the British Bill of Rights, which says that people "may have arms for their defence". I guess the question is whether they were talking about individual self-defence, or as defence against an invading army.

On the subject of Dred Scott, aside from the fact that I find it very difficult to accept an argument based upon a quote from a court judgement which upheld racism, I believe that the main reason behind the court's concerns was the perceived threat to "the peace and safety of the State" posed by negroes who would be able to organise themselves politically and, presumably, into militia. Basically, I can't accept Dred Scott as proof of an individual right to keep and bear arms.

Aside: I find it interesting that there is no uniformity of gun control law across the United States. That's actually reassuring to me, because it indicates that the laws (relevance: "as allowed by law", "for a lawful purpose") governing the right to keep and bear arms aren't imposed by the federal government, although this now means that I'm going to have to go and read up about the Assault Weapons Ban, which I understand was imposed by Congress, but I digress...

3. US v Miller. On the subject of the NFA, let me just be clear that I understand what the NFA meant - that shotguns with barrels shorter than 18", rifles with barrels shorter than 16" and fully-automatic weapons, were subject to what was effectively a stringent and expensive licencing and registration regime, whereby a person could not own such a weapon unless they had the permission of the local head of law enforcement. Am I correct?

I'd have to read more about US v Miller before I could definitively agree or disagree on whether or not the judgement can be interpreted to mean that there is no individual right to arms outside militia service, but what I would assert, from the information you've provided, is that it does indicate that the link between a well-regulated militia and the right to keep and bear arms was present in the minds of the Court, in the same way that it is present in my mind.

4. Laurence Tribe's comments do provide food for thought, but like Blackstone and Tucker, he's merely a commentator (just as we are, in this approrpriately-entitled blog). I'm far more interested in the conflicting judgements passed down by the Fifth and Ninth Circuit Courts. I assume that the next port of call in both cases would be the Supreme Court? Are we likely to see a definitive judgement from the judiciary on whether the right to bear arms is an individual one?

The dissenting opinion you quote is very well-written. I particularly like (and agree with) this portion:
The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
However, I don't think that interpreting the Second Amendment as guaranteeing the right to keep and bear arms in order to ensure the existence of a well-regulated militia would create the risk that the people of the United States would face "these contingencies" unprepared.

By the way, out of curiousity, are liberals (as you use the word) pro- or anti-gun control?

5. You write: "Your interest in regards to the public right to keep and bear arms strictly concerns public safety via the reduction of the use of firearms in violent crime through the offices and efforts of legitimate government."Actually, I wouldn't really agree with this. I just find it interesting to explore:
  • the obsession with the right to keep and bear arms,
  • the anti-establishment feeling which appears to be associated with that obsession,
  • the apparent failure of the pro-gun movement to consider the consequences of poorly-regulated gun ownership,
  • the application of my "rights and responsibilities" thoughts to the right to keep and bear arms, and
  • the general cultural and moral differences between how things were when the US Consitution was written and today.

    I actually think that the best way to reduce crime, including gun crime, is to drastically reduce tolerance of crime and to punish criminals far, far more severely than they are punished today. I think far too much consideration is given to the rights of criminals and far too little to the right of innocent people to enjoy life, liberty and the pursuit of happiness.

    Anyway, back to the subject in hand.

    The Tytler quote is excellent and incredibly thought-provoking, particularly in light of the current US administration, which came to power most controversially and which has recently announced huge tax cuts. I would guess that the US (and possibly the UK also) is currently somewhere in the region or apathy, approaching dependency, on Tytler's timeline. Would you agree? Do you think that perhaps that timeline is inevitable, that, like Shakespeare's seven ages of man, civilisations must go through that type of cycle and that parallels can be drawn between this and what Jefferson was thinking when he said that "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants"?

    You raise an interesting issue when you decide that you cannot trust the courts to follow the rule of law. Surely if that is the case, then the entire foundation upon which the United States was founded is crumbling?

    I think that comparing the situation in Britain to the situation in the United States is like comparing apples and oranges. As you pointed out, there are differing attitudes to the government, and despite some interesting anonmalies, (e.g. the fact that the English Bill of Rights, which is supposedly part of Britain's written "constitution", guaranteed the right British citizens to possess weapons for self-defence) the simple fact is that people do not feel the need to take steps to protect themselves against the government.

    As an aside, I recently had a conversation with someone who opposed the war in Iraq, who asserted that Tony Blair has too much power, with respect to being capable of ordering the British armed forces to go to war. I pointed out that, as an officer in the British Army, my loyalty, like all officers in the armed forces, is to the Crown, not the Prime Minister, so in the event of a situation where the government (personified by the Prime Minister) ordered the armed forces to do something, without the agreement of the Queen, I would not have to follow those orders. Obviously, this is highly hypothetical situation, but theoretically, if a British government ever tried to overthrow the Queen, the armed forces should theoretically rally around the Queen.

    However, I digress.

    I agree with you that rights imply responsibilities. So, I have the right to freedom. But if I abuse that freedom to commit crimes, my right to freedom can be rescinded and I can be imprisoned. I have the right to drive a car, but I also have a responsibility to drive safely and avoid endangering other people. If I fail to fulfil that responsibility, if I drive dangerously or while drunk, my right to drive a car can be rescinded.

    The way I see it, there are certain limitations placed on these rights, for public safety, such as the speed limit. Such limits are placed on rights when people consistently fail to exercise their rights responsibly and, unfortunately, in today's society, here in the UK and, I believe, in the US, people are increasingly failing to exhibit a sense of responsibility.

    Why is society changing in this manner? Well, that's the question, and I have some very vague ideas about discipline, sense of duty and other qualities which I associate with the military, Which, given that Switzerland still has compulsory military service, is one of the reasons I find it interesting that the respective levels of gun ownership in the United States, Switzerland and Britain don't reflect the respective levels of gun crime.

    To be continued...

    posted by Jack | 16:09

    Tuesday, June 03, 2003  

    Jack? Are you still there?

    posted by Kevin | 02:50
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