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Right to bear arms

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  • EverKing
    Eternal Companion
    • Jan 2004
    • 985

    #31
    Originally posted by Pietro_Mercurios View Post

    I wasn't suggesting that you had, nonetheless it does seem that the highest court in the USA is meeting out some very partial justice these days. Making decisions that, one way or another, will have a serious impact on the US & rest of the World.
    Yeah, the imbalance under the auspices of "enumerated" vs. "un-enumerated" rights or more accurately in the latter case, that of Abortion, what the current court decided is not a right at all, is troubling to say the least. I get the argument they were trying to make under Dobbs, that there is no indication Abortion is a protected Right and that Roe was questionable for placing it under Privacy but even though I understand the argument I completely disagree with it. Just as I agree with the principle of turning such a contentious issue back to the People and their representatives in the Legislature yet I think doing so after 49 years of established case law is horribly short-sighted. I guess the one silver-lining is that this may spark States to formally add some level of protections to access to care into their Constitutions or at least Statutes. I can only hope that disasters is the deep-red states are kept to a minimum and that within a few years some balance is realized.

    This issue with Bruen overturning the New York May Issue law was less about Federal over-reach into State Law and more about upholding the standard in Nebbia v. New York (1934) (although I don't believe it was directly cited by the decision, it should have been as the core of the argument against the 'proper cause' rule follows in line with it) that while protected rights are not absolute, restrictions on them them under Due Process "demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained." In the context of Bruen, the New York laws were applied in what was argued to be arbitrary and even capricious ways. I suspect, however, that the Conservative Court chose to skirt around the Nebbia standard because they tend to be more absolutist in reading and likely would agree more with Nebbia's dissent that the government shouldn't be allowed to regulate private business so by avoiding citing it (and thereby affirming it) they left themselves more room to work in the future should any cases of Gov't v. Private Business come before them. Frankly, if they ever get such a case and decide to overturn Nebbia we'll immediately be in some Rand'ian capitalist shit-show, if you'll forgive my language.

    In any event, it is that "unreasonable, arbitrary, or capricious" standard that I came to, independently before I ever heard of Nebbia, in my opposition to things like so-called Assault Weapons Bans--or even the regulatory description of what classifies a firearm to fall under said regulations--as they are truly unreasonable and arbitrary and in application often capricious with little to no "real and substantial relation to object sought to be attained" (that of public safety). I am more than open to improved and increased regulation so long as the regulations make actual sense in context and fall short of full bans (which, let's be honest, can only be effective when paired with comprehensive confiscation).
    "In omnibus requiem quaesivi, et nusquam inveni nisi in angulo cum libro"
    --Thomas a Kempis

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    • Heresiologist
      Mothra Worshipper
      • Jan 2012
      • 1074

      #32
      Originally posted by EverKing View Post
      Out of curiosity--and frankly because I am absolutely loving this conversation and the challenges/nuances it has brought--how do to you, personally, interpret the 2nd Amendment? I think if we step back to this, most basic question, it will help understand from where our following positions come.
      I'd never write a sentence the way the 2nd A is written, unless I meant that "well regulated Militia" for the "security of a free State" is a crucial part of the right to bear arms. For myself, those two prefatory phrases completely trip up the "Individual Right to Keep and Bear Arms" position.

      I also thought there was an article (maybe two) with some sub clauses somewhere in the US Constitution that outline how militias are to be organized, disciplined etc by the government (specifically, Congress).

      Comment

      • In_Loos_Ptokai
        Abrogate all rituals
        • Apr 2007
        • 814

        #33
        It's part of the general duties of the United States Congress, as outlined in Article 1, Section 8 of the US Constitution, to with
        To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
        To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
        To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
        To provide and maintain a Navy;
        To make Rules for the Government and Regulation of the land and naval Forces;
        To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
        To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
        As you can see, the US Militia are NOT a private army of any sort, but are a public institution, to be under the US Congress' thumb, and to be paid for by federal taxes. And since it's Congress, not any other government institution, and most certainly not the executive branch, ie, the President, ... I'll leave you to guess what I think of President Trump calling up a private army to murder his Vice-President.

        So the US Congress paid for, and supervised that shooter in Uvalde? Sandy Hook? Las Vegas? What insurrection was that Uvalde shooter suppressing? What invasion was he repelling?
        sigpic Myself as Mephistopheles (Karen Koed's painting of me, 9 Nov 2008, U of Canterbury, CHCH, NZ)

        Gold is the power of a man with a man
        And incense the power of man with God
        But myrrh is the bitter taste of death
        And the sour-sweet smell of the upturned sod,

        Nativity,
        by Peter Cape

        Comment

        • EverKing
          Eternal Companion
          • Jan 2004
          • 985

          #34
          Sorry, this long. I am responding to both Heresiologist and In_Loos_Ptokai. Please, bear with me and allow a little patience and grace while I try to explain what I read in the Constitution, in an attempt not to argue or even change your perspective but rather to illustrate my own.

          Originally posted by Heresiologist View Post
          I'd never write a sentence the way the 2nd A is written, unless I meant that "well regulated Militia" for the "security of a free State" is a crucial part of the right to bear arms. For myself, those two prefatory phrases completely trip up the "Individual Right to Keep and Bear Arms" position.

          I also thought there was an article (maybe two) with some sub clauses somewhere in the US Constitution that outline how militias are to be organized, disciplined etc by the government (specifically, Congress).
          I understand where you're coming from with that but it ignores the contemporaneous understanding of "well regulated," "Militia," and ignores that later key phrase "right of the people."

          Originally posted by In_Loos_Ptokai View Post
          It's part of the general duties of the United States Congress, as outlined in Article 1, Section 8 of the US Constitution, to with
          To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations...[quote clipped for brevity]

          As you can see, the US Militia are NOT a private army of any sort, but are a public institution, to be under the US Congress' thumb, and to be paid for by federal taxes. And since it's Congress, not any other government institution, and most certainly not the executive branch, i.e., the President, … I'll leave you to guess what I think of President Trump calling up a private army to murder his Vice-President.
          Here again is that mention of Militia in the US Constitution but in this context you can gain a hint of that afore mentioned definition of what the Militia is by the phrasing "calling for the Militia" and it provides a clearer understanding of "well regulated" by the use of "organizing, arming, and disciplining, the Militia."

          The US Militia was never a private army and anyone who makes that argument is even more misguided than one who thinks the Militia is equivalent to the modern Armed Forces or even the National Guard. Although, in the latter case it is explicitly defined, in statute, that the organized Militia includes the National Guard (per Title 10 U.S. Code § 246(b)(1) the same statute also includes 10 USC § 246(b)(2) defining the unorganized militia, "which consists of the members of the militia who are not members of the National Guard or the Naval Militia." The Militia, as whole, in 10 USC § 246(a):
          consists of all able-bodied males at least 17 years of age and...under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
          So, the Militia has independent existence outside of active service. That is why I pointed out the phrase "calling for the Militia" from which we may infer the permanence of the Militia (it does not, for example, say "forming the Militia" or "creating the Militia"), it provisions the "calling" of something which is already there. (Incidentally, in my state of Minnesota the State Militia is further defined as including all "able bodied citizens" (MN 2021 190.06) and so is not just limited to men). So, even if you consider the Militia clause as limiting access to the right, the Militia is a pretty broad group that, as a limiter, would produce its own problems: because I am exempt from from military service due to medical reasons (i.e. not "able bodied") does that mean I can no longer exercise my rights? What about when I am 46 years old? What of my sister-in-law who lives outside Minnesota and therefore may not be part of her state's Militia; does she have limited rights due to being female? Would she then gain the right by identifying as male?

          The "organizing, arming, and disciplining" (i.e. regulating) is left to Congress to provide for as done originally in the Militia Act of 1792 and more recently in the Militia Act of 1903 and amended in various National Defense Acts which form the National Guard, the Reserves, and so on. In here, "provide for" means Congress has the authority to pass the laws needed for this regulation of the Militia, not that they have sole control over the Militia.

          The authority to raise or call up the Militia is explicitly given to the President and/or the Governors of the states but with various caveats and restrictions around it. Of course, what Florida Man attempted was in everyway illegal as far as I'm concerned and I would love to see him face the full power of the law and never be seen again.

          Now, all of this talk of what exactly constitutes the Militia as understood at the time of the passing of the Bill of Rights and the 2nd Amendment is largely semantic. The needs have changed and the organization of the US Military is dramatically different that it was 230 years ago. Still, it helps to support the argument that the opening phrases of the Amendment are merely prefatory and explanatory rather than limiting clauses. Indeed, the original phrasing, as proposed by James Madison (who explicitly stated that Amendments should be limited to protecting individual rights) was:
          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.
          By placing the "militia" clause after the actual limit on infringement it stresses the the "right of the people" more than the reasoning behind it. Even here, we have to accept that Madison would have understood the Militia to be all able-bodied men that could be called up in defense.

          Perhaps most tellingly is that the first legal provisions for the regulation of the Militia, the Militia Act of 1792, explicitly states the members of the Militia were required to provide their own arms and ammunition (and even further limits what type of arms should be provided including provisioning that it must be capable of firing balls of at least 18 gauge caliber, or 0.637 inch / 16.19 mm, which was the lower-end of the standard military arm of the day--the French Model 1777 as adopted by the Continental Army and later the US Army was about 14ga/.69"/18.5mm bore but as was typical of muskets usually fired undersized balls due to wadding/patch and ease of loading). Here we can gather the intent was to ensure that members of the militia (meaning all able-bodied men) would have a weapon equivalent in capability to the prevailing arms of the Military of the day.

          One final thought regarding the idea that the Second Amendment only applies to an Organized Militia (in the modern sense of the National Guard, etc.) acting in direct Service of the State: if that is the case, does the absence of such a protected right for those serving in the Regular Military mean that there is no guarantee members of our Armed Services will be properly armed? That's a silly argument of course, members in active service will expect to be appropriately armed; but, if that's a given expectation why the need to guarantee members in active service of the Militia will also be armed? Active Service, is active service whether Regular or Militia.

          The core of my argument is not in the opening "militia" clause but in the phrase "right of the people."

          "The People" is used only twice in the original US Constitution (Preamble and Art.I § 3), five times in the Bill of Rights (in Amendments I, II, IV, IX and X), and twice more in Amendment XVII (re-defining how Senators are selected). In each case it refers to the whole collection of individuals that make up those within the United States. The limits of who is and is not included among "the People" is on-going (All people living within the boundaries of the nation? All persons subject to the laws? All citizens? All those legal to vote?) but as far as I know it is always taken as an expansive collection of individuals rather than a specifically limited group in toto.

          More specifically, the full phrase "right of the people" is used only three times: Amendments I, II, and IV.
          1. "...the right of the people peaceably to assemble..."
          2. "...the right of the people to keep and bear arms..."
          3. "The right of the people to be secure in their persons, houses, papers, and effects..."

          In these instances, even if we exclude II, it invariably protects against violation of an individual right. Arguing otherwise, that "right of the people" refers only to a collective right under specific circumstances would also mean that our protections against unlawful search and seizure as guaranteed by IV would also have to be collectivist as would the right to peaceably assemble. By that argument, Congress could pass a law saying that the Police can freely search your private effects unless you are a member of a specifically protected group.

          Further, these three can be differentiated as "natural rights" as opposed to what I call "granted rights" by the same phrasing. An example of a granted right is in Amendment VI, "In all criminal prosecutions, the accused shall enjoy the right..." There, it is the Federal Government giving the right to a "speedy and public trial, [etc.]" rather than limiting the Federal Government (and via Amendment XIV, State Governments) from passing laws to inhibit exercising a right which a free person intrinsically has as one of "the people."

          Taking Madison's original phrasing, historic understanding of "Militia," the historic requirements for the Militia, the modern statutory definition of the Militia, and the limited use of the specific phrase "right of the people" together produces preponderance of reference and evidence (such as it is) which to me is sufficient to support the understanding that the Second Amendment protects an Individual Right, rather than a collective right restricted to active service in the Militia.

          Originally posted by In_Loos_Ptokai View Post
          [continued] So the US Congress paid for, and supervised that shooter in Uvalde? Sandy Hook? Las Vegas? What insurrection was that Uvalde shooter suppressing? What invasion was he repelling?
          No. No. No. None. None. Respectively.

          Just as well ask what traffic law the driver of the truck in Nice was obeying. It's a nonsensical argument. In each case it was the action of an individual, possibly deranged in some way, facilitated by situation and access to a tool used in an illegal manner.

          Don't get me wrong, I know what you're going for there: how can we justify those individuals having access to the tool used? That is, access to small-caliber semi-automatic rifles in the three cases you cited. That's something I struggle with as well, to be honest. I concede the potential danger of ready access but I think it boils down to where on the scale of liberty you balance it. The root of my struggle is in the question: where do we inhibit the limit of the many for the actions of the few? 1:100,000? 1:1,000,000? 1:100?

          Taking AR platform and derived rifles, there are an estimated 19.8 million such in circulation in the U.S. currently (Business Insider. 2022). Does the handful of such rifles that may be used in single actor mass-shooting events or even those that may be used in perpetration of any crime constitute a sufficient portion of the total to restrict access to all the rest? Do the number of people espousing violence on social media constitute a sufficient portion to shut down and block access to the platform for everyone else?

          Maybe. I honestly don't have any answer to that. I do, however, prefer to err on the side of liberty over collectivism; though I accept other philosophies have validity.
          Last edited by EverKing; 07-28-2022, 06:43 AM.
          "In omnibus requiem quaesivi, et nusquam inveni nisi in angulo cum libro"
          --Thomas a Kempis

          Comment

          • EverKing
            Eternal Companion
            • Jan 2004
            • 985

            #35
            A follow-up thought occurred to me. All of the above captures the argument in favor of the Constitutional definition of an individual right to keep and bear arms but there is another, more fundamental question at the heart of it all, the extra-Constitutional question which delves into philosophy: does such an individual right actually exist?

            If we assume my above analysis is correct (and I accept that is a big assumption), that even those who wrote the US Constitution and 2nd Amendment understood it as an individual right, it does not necessarily follow that the Constitution itself is correct in acknowledging that the right is natural. But then we have to identify how natural rights (that is, rights intrinsic to a free person) exist. Are they fundamentally inclusive (an individual in liberty has all possible rights with limits) or definitionally exclusive (an individual in liberty only has specific rights)? If the former, what are the limits? If the latter, what are the rights?
            Last edited by EverKing; 07-28-2022, 06:35 AM.
            "In omnibus requiem quaesivi, et nusquam inveni nisi in angulo cum libro"
            --Thomas a Kempis

            Comment

            • Heresiologist
              Mothra Worshipper
              • Jan 2012
              • 1074

              #36
              I think we are fast approaching "how many guns can a free person juggle on the tip of a bullet" territory.

              This is why I used the word "sectarian" earlier in the discussion. There's no right answer to the question of what the 2nd Amendment means. Interpretations have never been unified and they have changed over the years, decades and centuries since the US Constitution was written. There is no unambiguous support within the US Constitution for any of the interpretations. Right now, EverKing's position appears dominant. Time will tell how long it remains so.

              Comment

              • Heresiologist
                Mothra Worshipper
                • Jan 2012
                • 1074

                #37
                Originally posted by EverKing View Post
                A follow-up thought occurred to me. All of the above captures the argument in favor of the Constitutional definition of an individual right to keep and bear arms but there is another, more fundamental question at the heart of it all, the extra-Constitutional question which delves into philosophy: does such an individual right actually exist?

                If we assume my above analysis is correct (and I accept that is a big assumption), that even those who wrote the US Constitution and 2nd Amendment understood it as an individual right, it does not necessarily follow that the Constitution itself is correct in acknowledging that the right is natural. But then we have to identify how natural rights (that is, rights intrinsic to a free person) exist. Are they fundamentally inclusive (an individual in liberty has all possible rights with limits) or definitionally exclusive (an individual in liberty only has specific rights)? If the former, what are the limits? If the latter, what are the rights?
                I'm more inclined to believe the views of historians who claim the writers of the US Constitution were primarily concerned not with individual rights (especially the enumeration of them) but with limiting the federal government's powers (while permitting states many of the powers denied the feds). I suppose this also puts me in the camp that believes the "founder's" original intention was that the states could regulate firearms as they saw fit.

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