I've been a relatively big ACLU donor, big enough to have been appointed an "Individual Giving Officer." I've met with some of their leadership.
They've begun taking positions against individual civil rights. They've always been anti-2nd amendment, which I can understand, but this has escalated to the point that I think they're often on the wrong side of 1a issues as well.
I won't donate to them anymore. I regret that I did in the past.
It’s a shame because society needs examples of institutions that represent values as important as free speech. If we want to move forward we have to tolerate nazi speeches as long as they obey the law.
When institutions like that disappear it’s a lot harder for individuals to keep up the fight.
The hard thing about defending Nazi's marching is that people have to understand that it sets a precedent for the Black Power movement to march or women's rights movements to march or pro-choice movements to march. If you let these horrible people's rights be stripped away, then when a new power sits in the driver's seat, those causes that you care about can be stripped away because of the short sighted, greedy view taken.
“I disagree with what you say, but I will defend to the death your right to say it”
The issue is, of course, the thorny problem of allowing illiberal speech. What would the above author say if someone told them: "I disagree with what you say, and I'll make it illegal to say and jail you for it in the future"
Are you, the original author, supposed to defend their right to threaten your freedoms with your own life?
From this paradox emerged the current debate over de-platforming and "free speech" because people are nervous that their liberties are at risk, and thus they shouldn't tolerate intolerance.
Personally I think it's tricky. We have many, many examples of nations where illiberal leaders abused their freedom of expression to gain power only to pull up that protection behind them and become a dictator while crushing dissent. We really only have a few counter-examples (namely the United States) where free speech absolutism has survived multiple regimes.
The model of free speech that is currently popular on the Right, namely freedom from public backlash as the result of open expression, is juvenile and not enumerated in the Bill of Rights. You have the right to say whatever you want from the perspective of the State, but you do not have the right to an audience or to escape the consequences of your speech. Nobody should ever be arrested for their political opinions, but this idea that the left has gone "woke" or mad by cancelling people they disagree with is simply their right as individuals. So long as the Government isn't making it illegal for you to appear on TV or have a cell phone provider (for example), there's no such thing as being cancelled by the government from a 1st amendment perspective.
On the left there's a bit more nuanced debate that basically pressures private institutions to cancel and de-platform actors that the left feels are attacking the foundation of their institutions. This is all above-board from a legal perspective, but can feel illiberal because it is largely mob-rule. Nuance is discarded and lives can be ruined by accusations that aren't researched in-depth before being blasted out into the world of social media. Here there also needs to be restraint, but again it's not like Verizon is cancelling someone's cell phone access because they had a bad tweet. It's ironically a very capitalist movement where the fear of affiliation hurting the economics of a business causes them to release a statement or "cancel" someone for their speech. Turns out being a racist isn't a great marketing tactic in our capitalist world.
In sum I think the danger to our democracy is still greater from actors who seek to use freedom of expression as a ladder to the top, and then kick away that ladder once in power. It's the biggest weakness of open democracies, and one that should be guarded against carefully. Thankfully a strong commitment and defense of the 1st Amendment from both parties should thwart strongman attempts. We need to make sure that political tradition stays alive.
Free speech is a social value to be upheld not just by the government but by the larger society and the people that comprise it.
Private companies have the legal right to deny their platform as they see fit, but it is illiberal and censorious to deny it on the basis of viewpoint.
I think private companies can deplatform whomever they choose and be as "woke" as they choose to be. The only obligation a corporation has is to its stockholders, like it or not. They aren't public squares, much to the dismay of many of the people who cry foul.
The ACLU can also take this path, but I think it's truly a shame. And there is no such thing as "free speech absolutism", not even in the US. The litmus test (to my understanding - I'm not even close to a lawyer) is the call to action, where it would be legal to say, "I wish someone would burn this place this place down" as opposed to "Let's burn this place down" during a protest might be illegal (I may be wrong in this example - ask a real lawyer).
I also don't believe in a repercussion free society where you can post anything on social media and face no societal backlash. We are social creatures and dictate socially acceptable behavior as a group, at large. If you take a stance that goes against the grain, right or wrong, there will be social repercussions. People have to understand that before they post, and I hope they do. Sometimes standing up for what you believe is worth it. Sometimes making a crappy joke really isn't =)
>They've begun taking positions against individual civil rights... this has escalated to the point that I think they're often on the wrong side of 1a issues as well.
Isn't this because civil rights of one individual are often in conflict with the civil rights of another?
A common example is the baker tasked with making a wedding cake for a gay couple. Should the baker have the civil right to practice their religion which does not condone gay marriage? Or should the gay couple have the civil right to not be discriminated against for their sexuality? You can't take a position in this situation without being against someone's civil rights.
As the political environment in the US becomes more polarized, these conflicts become more common and the apolitical path becomes less tenable.
EDIT: I wasn't trying to start a debate about this specific court case. But the fact that simply mentioning it did spark that debate basically proves my point. There is no universal agreed upon line between the civil rights of one individual and the civil rights of another. When these conflicts arise, the ACLU's work will be inherently political because an apolitical compromise is rarely possible.
> Isn't this because civil rights of one individual are often in conflict with the civil rights of another?
Kind of, yes. I think where things go off the rails is where projection and extrapolation come into play.
Recall: one of the key defining cases of the ACLU was their defense of (actual) neo-nazis marching in Skokie in the 70s.
Contrast this with the ACLU in 2017 arguing that San Francisco should prevent an alt-right protest because of theorized violence (the protest went forward. No violence materialized). Volokh wrote a bit about it here: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
There's a lot of inconsistency in the modern day ACLU. I think they've walked some of it back in the last few years, but from 2016-2020 I think they kind of lost their mind and I saw a lot of strong advocacy for these sort of projected societal norms -- don't let the bad people protest -- rather than the staunch defense of individual rights no matter who the individuals may be.
I want an ACLU that isn't polarized by politics. With a focus on individual rights.
You are leaving out some important context. The ACLU statement against those alt-right protests came in the immediate aftermath of a similar rally in Charlottesville that resulted in violence and death. People have a right to protest whatever their political viewpoint. However they don't have a right to incite violence. The ACLU no longer believed that these protests would be peaceful so they came out against them.
You can argue that the ACLU made the wrong decision because maybe they were misinformed about the nature of the protest and whether it would lead to violence. But the principle behind their decision seems clear and obvious. They will support peaceful free speech and not support speech which incites violence.
In particular, it's worth remembering the ACLU was backing the protestors at Charlottesville when it happened. They felt like they had blood on their hands.
For the record I am pro-gay marriage, but your example is BS. The baker in your example was willing to bake them a cake. They were never denied a cake. What the baker was not willing to do was bake them the exact cake that they wanted, claiming that fancier cakes were artistic expression and not the same as the standard priced on their menu cakes, and that forcing them to create an art piece cake they didn't want to make was the equivalent of compelled speech. It would be the equivalent of going to a restaurant and asking for something non-standard and off menu (say change a meal to vegan or gluten free), being denied that, and then claiming the restaurant violated your rights. Or going to an artist who sells t-shirts with their standard art and saying they denied me service when they wouldn't let me commission a custom piece that they didn't like to content of.
This discussion has been rehashed over and over again, but you're wrong on the facts of this case.
The owner claimed that he would bake any cake, but the evidence shows he refused before they discussed any styling or even what the cake was. He would sell them cupcakes or prebaked items, but wouldn't bake any cake, arguing it was compelled speech. The problem is that in the absence of asking for a cake which specifically mentions gay people, the owner's line of argumentation works equally well for refusing to cook a burger for black people at a diner. By being a business owner in a community, you give up certain civil liberties because you have increased power to infringe upon the civil rights of others.
Your analogies all fail because they consider situations where the customer asks the seller for a different, non-standard product. But that didn't happen; they were refused before any products were discussed.
> By being a business owner in a community, you give up certain civil liberties because you have increased power to infringe upon the civil rights of others.
Big [citation needed] here. The Constitution doesn’t say you give up your rights by being a business owner and participating in the economy.
Owning a business is not a right, though. Public commerce is pervasively regulated in all sorts of ways that might plausibly constitute "speech". The first amendment guarantees your right to make your opinions heard to all who want to listen. It doesn't say anything about making a buck doing it.
Owning a business is most definitely a right. One of the highest. It falls under 'life, liberty, and the pursuit of happiness' and is explicitly a right given by the constitution. It is on the same as familial association which is also a right legally recognized as being granted by 'life, liberty, and the pursuit of happiness'.
It comes from Locke, actually, and the third right enumerated was explicitly "property". But this is strawmanning anyway. I'm not saying the government has the right to seize property (that's covered quite explicitly under the fourth amendment). I'm saying that there is no right to operate a public business without regulation.
And sometimes regulation says "you can't police what your customers say with your product". Which is why I have a hard time taking some people seriously on this argument, which is so precisely analogous to the Twitter situation where they stand on the other side.
(FWIW: I think Masterpiece v. Colorado was absolutely correctly decided. Twitter doesn't have to put anything on their cakes that they don't want to say.)
Sorry, I'm a little confused by your post(I didn't follow this story originally and was, um, indisposed when it all happened so I don't know any of the larger social discussions that occured at the time other than a few newspaper articles). I'm was raised by hippies to be a diehard libertarian with a son who has had a lot of judgements and pain in his life because of who he is (and who he is is amazing so f all yall who judge him without knowing him). So this is kind of an existential crisis for me. I'm really really grateful to read all these thoughts.
I was absolutist about individual rights. But this discuss has me seeing that the absolutist view can allow people to be denied basic freedoms too (like how blacks were in the past). Each side is actually advocating for rights in this scenario, no matter which side I take. Before I would say the government can't limit rights, so tough luck to people who have theoretic constitutional rights but can't actually take advantage of those rights because society as a whole denies them to them over something arbitrary (race, sexual preference). Now I'm not sure. Our Government was created to ensure rights are protected from the tyranny of the majority as much as to protect from government tyranny (hence religious freedoms, freedom of speech, etc). This discussion has me seeing that protecting protected classes need a way that they can actually experience the rights given to them by the constitution and that is no different than the government enforcing freedom of religion.
I'm kind of at the point of seeing that past freedoms (to discriminate) resulted in non government imposed limiting of peoples (minorities, those with non-standard sexual preferences) basic freedoms (freedom to travel, be in public life, associate, have the same life experiences as others).
I think you are saying that businesses shouldn't have compelled speech but that the government can regulate business so that protected classes have their basic rights to enjoy/live life actually made available?
Sorry, not trying to be dense, just possibly adjusting some major life long beliefs.
Constitution doesn't matter when it's federal law. Title II of the Civil Rights Act of 1964:
> Outlawed discrimination based on race, color, religion, or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; exempted private clubs without defining the term "private".
Then cite where the constitution explicitly protects discrimination against protected classes.
The problem citing the constitution here is it's an argument from ignorance. You can't ignore federal laws just because the constitution doesn't say anything about them.
> Constitution doesn't matter when it's federal law. Title II of the Civil Rights Act of 1964
> The US constitution overrides other US laws, not the other way around.
> Then cite where the constitution explicitly protects discrimination against protected classes.
That reply was not about protected classes, per se. Please don't strawman off constructive criticism. Acknowledge you made a bad assertion or ignore it as irrelevant to your point.
- Asking where the constitution talks about protected classes is a loaded question, because it's protected by federal law.
- Stating the constitution overrides federal law is an argument from ignorance, because the constitution doesn't say anything about discrimination against protected classes to override it with.
Selectively ignoring the context of this conversation (i.e. "it's not about that per SE") to make my comment look like an unrelated straw man is cherry picking.
The problem with constitutionalists declaring freedom of association here is that the courts have repeatedly, undeniably upheld that the federal laws protecting civil rights are more important than the centuries old document (or, in a way, linked to the 14th amendment).
> Constitution doesn't matter when it's federal law. Title II of the Civil Rights Act of 1964
> The US constitution overrides other US laws, not the other way around.
> Stating the constitution overrides federal law is an argument from ignorance,
It is not an argument from ignorance. There was no argument about discrimination made. There was a reply (a correction) to point out a flaw in your argument. You are intentionally trying to pretend there was no error in your own argument by circling back to an orthogonal point. It was simply incorrect on its own to say "Constitution doesn't matter when it's federal law." I don't understand why you are bending over backwards, to defend something that doesn't matter to the points that matter to you, at all.
You have been striking out against people who are trying to help you have a stronger argument, by pointing out weakness. That's something worth thinking about in the future. GL with whatever.
The US Constitution guarantees freedom of association, i.e. the freedom not to associate, to discriminate on any basis you please. The CRA removes that right for a delimited number of protected classes but doesn’t remove it generally.
Can you point to something establishing what you say it true?
The specific situation you reference would seem to totally be a violation under my argument but taht doesn't invalidate my argument (especially since I did not mention a specific baker).
In the situation I presented would you grant that no rights are violated?
You claimed "the baker in your example was willing to bake them a cake. They were never denied a cake". That's 1) referencing a specific baker (the one GP mentioned with a definite article) and 2) a positive claim about that baker.
>In July 2012, Craig and Mullins visited Masterpiece, a bakery in Lakewood, Colorado, and requested that Phillips design and create a cake to celebrate their same-sex wedding. Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but advising Craig and Mullins that he would be happy to make and sell them any other baked goods. Craig and Mullins promptly left Masterpiece without discussing with Phillips any details of their wedding cake.
>The parties did not dispute any material facts. Masterpiece and Phillips admitted that the bakery is a place of public accommodation and that they refused to sell Craig and Mullins a cake because of their intent to engage in a same-sex marriage ceremony.
The distinction Masterpiece argued was that they were discriminating against Craig and Mullins on the basis of gay marriage, not on the basis of being gay. See e.g. Elane Photography v Willock for why this argument doesn't work.
Even taking that line on face value (although I would argue that the rest of the quotes portray a different story), the distinction between "standard service" and "custom work" is nigh-useless when divorced from the content of the custom service, which weren't discussed ("Craig and Mullins promptly left Masterpiece without discussing with Phillips any details of their wedding cake."). If a diner said "we'll make you a hamburger, but we won't make one without onions", and said that only because of a customer's race, that would be transparent discrimination.
In other words, you can refuse custom work that goes against your principles, but you can't refuse custom work to someone that goes against your principles. And in the Masterpiece case, the content of the custom work wasn't discussed.
Thank you for your persistence. I know it probably seems obvious to you but this helps my thinking. You can refuse work that goes against your principles, but you can't refuse custom work to someone that goes against your principles. I still think it takes agency away from artists in a way I am not comfortable with but because people suck it is probably a needed tradeoff or else people will couch unfair behaviors as artistic discretion.
Not the place and way off in the weeds, but I wonder how this plays out with a wedding photographer, who is required to be at the event that they might be against.
Frig, I wish there was a different example I'm really not trying to defend the baker. I'm trying to understand expanded (government) limits on freedom that we didn't have in the past that are paradoxically needed in order for people (gays, minorities) to have freedom (marriage, free association, ability to just do the same things I take for granted) that they didn't have in the past. Not trying to be a monster here. Just trying to understand things. Bringing it back to the article this is we need something like the ACLU as an organization to navigated these things in a way trusted by people on all sides of the political aisle.
The Colorado Court of Appeals actually mentions a case involving a wedding photographer decided by the New Mexico Supreme Court, Elane Photography LLC v. Willock.
NM SCOTUS decided even more strongly, arguing that the New Mexico Human Rights Act, "prohibits public accommodations from making any distinction in the services they offer to customers on the basis of protected classifications. The NMHRA does not permit businesses to offer a limited menu of goods or services to customers on the basis of a status that fits within one of the protected categories." (I'm Quoting Lexis, not the ruling)
I'm not sure I agree with this ruling, but it's unclear whether it would have been decided the same way if the Court had interpreted Elane Photography's services as an artistic work rather than a utilitarian service. NM SCOTUS had a few arguments, but basically it decided that anti-discriminatino laws aren't compelled speech because Elane Photography could just decide not to be a company performing a service:
>However, unlike the laws at issue in Wooley and Barnette, the NMHRA does not require Elane Photography to recite or display any message. It does not even require Elane Photography to take photographs. The NMHRA only mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation.
>The Barnette Court noted that the dissenting students’ choice not to salute the flag “[did] not bring them into collision with rights asserted by any other individual.” 319 U.S. at 630. That is not the case here, where Elane Photography’s asserted right not to serve same-sex couples directly conflicts with Willock’s right under Section 28-1-7(F) of the NMHRA to obtain goods and services from a public accommodation without discrimination on the basis of her sexual orientation.
>The same situation is true in the instant case. Like the law in Rumsfeld, the NMHRA
does not require any affirmation of belief by regulated public accommodations; instead, it requires businesses that offer services to the public at large to provide those services without regard for race, sex, sexual orientation, or other protected classifications. Section 28-1-7(F). The fact that these services may involve speech or other expressive services does not render the NMHRA unconstitutional. See Rumsfeld, 547 U.S. at 62 (“The compelled speech to which the law schools point is plainly incidental to the [law’s] regulation of conduct, and it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out. Dale also was decided on freedom of association grounds. Id. at 644. Elane Photography has not argued that its right of expressive association was violated. by means of language, either spoken, written, or printed.” (internal quotation marks and citation omitted)). Elane Photography is compelled to take photographs of same-sex weddings only to the extent that it would provide the same services to a heterosexual couple. See id. at 62 (speech assisting military recruiters was “only ‘compelled’ if, and to the extent, the school provide[d] such speech for other recruiters”).
To get back to the root of the issue, the Civil Rights Commission's decision was only reversed because the majority believed they had demonstrated hostility towards Philips's religious beliefs. The majority actually affirmed the constitutionality of the statute he was originally sued under, and the general constitutionality of anti-discrimination laws that protect gay people. Justice Kennedy explicitly said that the First Amendment does not protect a right to discriminate against protected classes under public accomodations law.
That is a huge misrepresentation of the facts of the case. Of course he refused before they discussed any styling: the same sex couple wanted a wedding cake. It didn’t matter what styling it had, making any such custom cake for them would be an implicit endorsement of their behavior, which was contrary to his deeply held religious beliefs.
> It would be the equivalent of going to a restaurant and asking for something non-standard and off menu (say change a meal to vegan or gluten free), being denied that, and then claiming the restaurant violated your rights.
It would be the equivalent of going to a restaurant and asking for something non-standard and off menu (say change a meal to vegan or gluten free), being denied that, noting that they seem only seem to be denying black patrons off menu orders, and then claiming the restaurant violated your rights.
And? Ethnic restaurants do this all the time with same ethnicity patrons and not me as a white guy. Shoot, they often even have a seperate menu for the right ethnic group that I never even get to see.
I’ve been to restaurants like this, like one where The husband and wife owners were Vietnamese and Cambodian, and the wife used to cook Cambodian dishes for people that wanted it, and had a Cambodian menu.
It wasn’t anything sinister. It just wasn’t something they advertised but found it to be a novel additional income.
It was a Vietnamese restaurant cuz people seek that cuisine out more than Khmer food.
But if even I asked for the Khmer menu they’d hand it to me, even though I’m a brown clearly Indian dude (who grew up with a few Cambodian friends)
They sure do deny it, it's happened to me may times. Or they allow it once or twice, but then later on they told me I can't keep ordering it because it's too much work and not on the normal menu.
I'm not saying it's sinister. Personally, I think it's reasonable. You have a standard business that you provide. And maybe those recipes are more generic to appeal to a larger customer base, but when someone from the home country comes in wanting the taste of home, you make them that special because you want to out of hospitality, and separate from your standard business. Is that illegal? Should you have to make that for everyone?
Some places will accommodate you, but some won't. Maybe because they only make a limited amount of those items, or because they are more labour intensive, or because they include more expensive exotically sourced ingredients and aren't a westernized recipe, or as happened with an ex-girlfriend, because it's a pretty acquired taste, and you should believe them when they say you aren't going to like that, they aren't just being hipstery.
As long as they provide me and everyone else their standard service, I think it's legitimate. But under what is being talked about here it would be considered an illegal racist practice.
Wow, keep voting me down and ignore that this is a real world example that happens all the time. Making accommodations for off menu items at ethnic restaurants is often determined by race but it isn't being done out of racism.
>What the baker was not willing to do was bake them the exact cake that they wanted, claiming that fancier cakes were artistic expression and not the same as the standard priced on their menu cakes, and that forcing them to create an art piece cake they didn't want to make was the equivalent of compelled speech
This is just semantics of a legal argument. It is not some universal truth that ordering off menu puts any additional ethical strain on someone. If the baker would make those customizations for a straight couple and not a gay couple then the civil rights of the gay couple are being infringed.
Come on man, if I list services, and am willing to provide you those services, how did I deny you service? If I am not willing to go above and beyond to make you special creative accommodations that is not a violation of your rights.
If my religion does not allow me to do drugs, and you want me to cover a cake with marijuana flowers instead of the standard roses, I am required to do that? Am I denying you service when I say I will sell you a cake with standard flowers but I'm not spending 16 hours custom making marijuana icing flowers? Putting the standard icing on a cake is a service and should not be denied, but 16 hours making something custom is art and I should have a choice if I want to put that creative energy into what you are asking for.
Service was not denied, commissioning a custom work of artistry was. No rights were infringed.
You're conflating discrimination on the basis of the product being created vs on the basis of whom the product is being sold to.
The cake being commissioned was not materially different from any of the other cakes the baker made. What was materially different was who he was selling it to.
I am a computer geek and suck at words, but I thought that is what I said. If you provide a standard service, you can't deny that service to people. If you have something different, say a wedding cake that takes tens of hours and is a one off custom work of art, that is different.
I do custom software development. What is the line for what work I am compelled to take on versus what projects I can choose not to do? Would I be required to take on making a grindr clone if my only objections was religious?
You don't have to take bad faith arguments at face value.
When the baker says that his wedding cakes are a custom work of art tailored to each client, he's bullshitting you. He simply wants to discriminate against gay people. It really is that simple. There is no material difference between drawing flowers on a cake for a gay wedding and drawing flowers on a cake for a straight wedding, the same as there being no material difference between drawing flowers on a cake for an interracial wedding and a non-interracial wedding. When people make up false pretenses to justify their discrimination, your job as a rational human being is to identify it as such, not be a sucker.
I absolutely guarantee that if a straight couple had came in, commissioned a regular wedding cake, and then once the cake was done said "Oops we're not gonna buy it, can you sell it to our gay friends' wedding instead?", the baker would not have sold them the cake at that point, because again, it's about who he's selling it to, not what he's making.
Dude, have you bought a wedding cake? Mine was $2500. WTF? We had a dedicated time slot where we had our own private cake tasting to determine what cake we wanted and they establish a relationship with you and understanding of what you want and spend days making our cake. I don't see how that isn't a work of passion tailored to an individual's request. I don't think you understand the process and are assuming it's something it's not.
Nice use of a lot of derogatory comments though. That convinces me, I mean I don't want to be a sucker or a non-rational human being. You know people can have a different opinion and you don't have to degrade or otherize them. I'd rather keep my too much good faith in people's arguments that take on your toxicity.
If he refused in your hypothetical situation then yes, that would be discrimination 100%. I don't think your hypothetical is what happened though.
Who cares how long the cake took. I’m a programmer. Most projects take far longer than a cake takes. Maybe you don’t believe coding is partially an art form, but I do. I can’t imagine discriminating against people would make sense as a programmer just because projects usually take dozens upon dozens of hours.
—-
By deciding bad faith people aren’t bad faith, you’re effectively, screwing over the victims of discrimination. Which effectively “degrade or otherize them”.
“I'd rather keep my too much good faith in people's arguments that take on your toxicity.”
What does this mean?
These are the exact sort of stuff that people say to defend bigoted grifters on Joe Rohan’s podcast like Ben Shapiro. Something like “Rogan says Shapiro is a genuinely good dude. Why assume he is speaking in bad faith when he pushes everything his billionaire fracking backers believe and thinks gay or trans people are awful…but that’s just against his Jewish faith which he is not consistent on any way. Since he isn’t consistent in general”
Except one of the (standard) services of the bakery was "custom wedding cakes". And he didn't refuse to make some specific art that depicted homosexuality or whatever, he refused to make any custom wedding cake for a gay wedding. As in, they could have requested the exact same cake as a straight couple - let's say white, three tiers, pink icing - and he would have refused.
Just like if your 'service' is making meals to anyone who comes into your restaurant, you can't deny black customers. This seems like the same thing to me.
But it doesn't seem like the same to me. If he refused to sell a cake out of the display, it's an obvious violation. If he refused to take an order for a wedding cake, obvious violation. It looks like to me he refused to meet for a consultation on making a custom cake, which is something different. Maybe I am convoluting the process I went through with something different.
When I got married we could either fill out an order for a cake, and say we wanted white frosting, white cake with raspberry, to serve 200 people, etc by filling out their standard wedding cake form. Or, we could do a custom cake, where we had our own individual tasting of cakes and talked with the person about the details of what we wanted and design the details of the cake. The second option was not their standard service nor a standard cake, the first was. The first can not be denied, the second can (though your still a shitty person/business if you do). It's no different than an artist with a gallery. Anyone can buy their paintings, but anyone can't commission a piece. The artist has, not regency, I can't think of the word, but they have a say on who they take commissions from.
The point is this is why we need the ACLU. Someone who is willing to take the other side in uncomfortable/ugly discussions, so that we keep our rights. It is easy to give up rights. It's hard to get them back. I'm super uncomfortable with this discussion because I don't agree with the baker or what he did. But I think we need to be willing discuss infringements on rights, even when we agree with them.
It certainly is an uncomfortable discussion, although that often means it's an important one. I suppose I'd question whether the ACLU (or whoever) should push for the rights of the baker or the couple, since they seem to be at odds. Generally I think people have a right to run their business how they want, but also that people have a right to be free from discrimination based on their sexuality/race/gender/etc. I also don't agree with the baker, but I think I'd be uncomfortable with the state forcing him to create specific art.
I do see a distinction between denying a particular commision and denying someone even the option to request a commision though. If he refused to make a cake that said 'Jesus loves gay marriage' I probably think that should be allowed. But refusing to make any custom cake at all for a gay couple seems much different.
And comment is why we need the ACLU in it's old form.
Dude, do you not see no one is arguing for being pieces of crap, but that rights can easily be curtailed long term from an initial starting point of everyone agreeing we shouldn't be pieces of crap. You know, the saying 'the road to hell is paved with good intentions'.
No crap. Which is why we are discussing the boundaries of rights in the context of an organization that's purpose is to ensure that those boundaries don't get pushed to the point of infringing on other rights in either direction. In a free society we need someone willing to stand up for the unpopular side. I support gay marriage. I feel like a piece of crap in this discussion because the person I am defending disgusts me and is garbage. But I feel like there is a larger discussion that should be had.
If political speech is banned in the 6 months before an election do I have free speech?
If I am forced to do work I don't want when I am self employed and affluent enough to choose, do do I have life, liberty, and the pursuit of happiness?
Bringing religion into the gay cake thing is just gish galloping. No one should be forced to make any cake, no questions asked. (And no, WElL yUo CoulD jUST sTOp MaKInG ALL caKeS does not work, that's just force with a pretty bow on top.) But by bringing irrelevant religion into it, this gives the slavers - er, excuse me, the people who think it's okay to force other people to do things - the moral high ground of defending against a bunch of fundies. Just fucking stop trying to force other people to conform to your beliefs, even if those beliefs are as morally righteous as LGBT rights. Not making someone a cake is not violence.
No one has a "civil right" to discriminate in the United States. The default law in the United States is that discrimination is illegal. The Civil Rights Act of 1964 spells out protections against discrimination on the basis of race, religion, sex, or national origin.
Sexual orientation is not explicitly protected, but that does not mean you have a "civil right" to discriminate against gay people. You just... have a right to be an asshole.
> The Civil Rights Act of 1964 spells out protections against discrimination on the basis of race, religion, sex, or national origin.
Only in specific, enumerated contexts, such as employment and public accommodations.
You have a civil right to associate with whomever you want to, for whatever reason you want. You also have a Constitutional right to live according to your religion even when participating in the economy.
Public accomodations includes hotels, restaurants, and other institutions open to interstate commerce, per Title II.
The baker in question claimed they were an artist (separate from their bakery/restaurant public accomodation) and that they had the religious freedom to discriminate against sexual orientation based on their religion.
The court ruled that artists are not compelled to create for whomever they want, but did not say that people can discriminate against other protected classes based on their religious beliefs.
A bakery is generally not a restaurant under Title II, which defines that to mean an establishment “principally engaged in selling food for consumption on the premises.”
Only if it also has a restaurant that serves food primarily for eating on premises. The bakery in masterpiece cake shop might have incidentally had a restaurant, I don’t remember, but a wedding cake caterer ordinarily wouldn’t fall under the Civil Rights Act.
The ACLU site explicitly says that they don't recognize the 2A as an individual right.[0]
> Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that view. This position is currently under review and is being updated by the ACLU National Board in light of the U.S. Supreme Court decision in D.C. v. Heller in 2008.
> In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia. The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment.
I am sad about this set of facts about the ACLUs position. Longer than the ACLU has held its opinion, the Constitution and the writings of the Founders, both before and after its ratification, ascribe all of the rights in the Bill of Rights to individuals, including the 2nd Amendment specifically.
I have long been an ACLU member and donor. Despite my differences of opinion on some matters, I have been grateful that they have fought in the name of rights in a great many cases. I do wish they would take a broader view on their mandate on Civil Liberties, today and tomorrow.
Ironically, Hamilton was both wrong and right here. He was right that by enumerating rights in the BoR that it has empowered the government to view those rights as the only ones that are untouchable (and not even that.) However, he was wrong that the COTUS would stand on its own to protect individual rights due to its strict limiting of the government's ability to infringe those natural rights -- which it very much has done.
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788
Later in life, even:
“The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.” – Thomas Jefferson, letter to John Cartwright, 5 June 1824
> Longer than the ACLU has held its opinion, the Constitution and the writings of the Founders, both before and after its ratification, ascribe all of the rights in the Bill of Rights to individuals, including the 2nd Amendment specifically.
This isn't even remotely true. The 10th Amendment, for example, explicitly concerns the rights of the states and not the individuals within them.
The phrase "well-regulated militia" should be a giveaway to you: individual human beings are singular, not plural, and the concept of a "well-regulated individual" doesn't make much sense either in the language of the framers. We've so profoundly distorted the original language as to effectively erase "militia" entirely[1].
No, if you read the antifederalist papers, you will find the text from which the bill of rights originated which more clearly show that it is an individual right.
> 7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people of any of them, unless for crimes committed, or real danger of public injury from individuals;...
* The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18,1787)
Both the first and forth amendments also use the wording "the people" to refer to an individual right.
Moreover, the militia is and was intended to be every able bodied male.
> The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
> (b) The classes of the militia are—
> (1) the organized militia, which consists of the National Guard and the Naval Militia; and
> (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
There's a reason the anti-federalist papers are not part of our legal and cultural canon: the anti-federalists lost. Their sole victory (a good one!) in our Federal government is the Bill of Rights, and even that was Pyrrhic in nature.
> Both the first and forth amendments also use the wording "the people" to refer to an individual right.
That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person." It's a particular kind of institution, one that the 2A recognizes must be well-regulated. That's why 10 USC isn't the "gotcha" that armchair scholars think it is: the general body of the population is the opposite of a well-regulated militia, even if they are perfectly eligible for service in either a militia or the armed forces.
And note: I'm not claiming that "well-regulated" means that the framers meant "full of regulation." The framers were clasically educated: their understanding of the world "regulate" is the non-personal version of "moderation," meaning something closer to "striking a balance." There is nothing particularly balanced about either a complete ban on arms (you will note that no liberal democracy on Earth actually does this) or our current clown show of private militias showing up to protests strapped with assault rifles.
Sure they lost, but we can look to their writings for aid in our understanding of the meaning. I'm not saying that the quote is binding in itself.
> That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person."
This is a weird take. There is no indication or grammatical reason that "people" and "militia" are convertible.
If you read the various state versions of the 2A many are more clear than the federal that it applies to individuals. There is a state court case
https://en.m.wikipedia.org/wiki/Nunn_v._Georgia
Also the infamous Dread Scott decision mentions it:
> It would give to persons of the negro race, who were recognised 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.
10 USC was not supposed to be a gotcha. It is showing that just as at the time of the founding, all citizens were expected to keep and bear arms, and thus also know how to use them so still does federal law reflect that.
Quick note: people are not protesting with "assault rifles" because one is defined as select fire and they are very expensive to acquire. Although I do wish that this was not the case.
And Heller, and non-binding opinions of it from the last 200 years.
If I interpret the first amendment to only apply to brown eyed people, and then defend that very odd interpretation, am I still a defender of the first amendment?
If you interpret the 4th amendment's "papers" to mean only tree-based sheets, not documents which might be electronic, are you really a defender of the 4th amendment?
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
That page neither argues that, nor supports the view that, "well-regulated" means well armed or well equipped.
The page argues that it means something like "running well", but the examples they give seem to me to fit better with a slightly different meaning that also matches the etymology of the word (in Latin a regula is a rule; it comes from the word meaning to rule or govern). I think "well-regulated" means some combination of: well organized, well governed, well adjusted, well controlled.
In the Second Amendment it may or may not have specifically the sense of "well organized/governed/adjusted/controlled by the nation's government". But it's definitely not just talking about a militia that has enough weapons, or a militia that is good at shooting the people it wants to shoot; a well-regulated militia is one that is well organized and that makes good choices about who to shoot and why.
(It also seems clear to me that "well-regulated" is not there to be any part of the point of the Second Amendment. I think it's mentioned in passing, possibly exactly to reassure people who might otherwise worry that the 2A is trying to set things up so that armed mobs terrorize everyone. "For a free state to remain secure, it needs a militia -- yes, yes, of course it has to be a well regulated one -- and so the people must be able to have weapons.")
> It also seems clear to me that "well-regulated" is not there to be any part of the point of the Second Amendment.
That's how I read it as well. In fact, I consider the whole first part of 2A ("A well regulated Militia, being necessary to the security of a free State,") as more of a quick justification that has no legal bearing on the actual right that follows ("the right of the people to keep and bear Arms, shall not be infringed.")
So, essentially, "A well regulated Militia being necessary to the security of a free State [begets that] the right of the people to keep and bear Arms shall not be infringed."
> It also seems clear to me that "well-regulated" is not there to be any part of the point of the Second Amendment.
Well, it's critical to the point in that a working militia can serve a purpose, and a broken militia can't.
Contemporary documents make the point of the Second Amendment very explicit - its purpose is to prevent the United States from maintaining a standing army. But that's not what it does or what it claims to do; that's just the reason it exists.
> Contemporary documents make the point of the Second Amendment very explicit - its purpose is to prevent the United States from maintaining a standing army.
It's worth noting here that this is frequently cited and correct, but misses a critical point: this was before permanent paramilitary police forces, and one of the main reasons for fearing the establishment of a standing army is that this armed force with a distinct and insular culture from the citizenry would inevitably be used for internal security as well as against external enemies; the fear of standing armies is perhaps most accurately understood as a fear of permanent, insular domestic security services extending so far as to fearing permanent defense forces that could be turned to that purpose.
I mean, you don't have to tell me. I'm on the record stating that the police are, by all definitions that do not refer to the actual word "police", a military body. Calling a soldier an "officer" doesn't mean he's not a soldier.
> not there to be any part of the point of the Second Amendment
Given how few words the Constitution uses to describe things, I have to assume there is a point of some kind to every word in the document. We've chosen to interpret all of these words in 2A to be irrelevant, but if the writers of the document intended that, why did they put them there to begin with?
> 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.
Then, the next time it appeared, it was reworded as
> A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
Before being whittled down to nix religious exemption and leave ambiguous who runs the militia
> 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.
Judging from the Congressional record nobody focused on the fact that the militia clause got flipped between meetings, so take from that what you will.
The thing that no one seems to remember about the 2A is that it was meant to establish a militia as opposed to a standing army, which was seen as an inherent threat to liberty. Obviously opinions on that subject have changed over the years, particularly after the militia let DC burn.
That does seem like a justifiable interpretation, and I'm inclined to agree. They mentioned militia for a reason. And it makes sense -- if the point of arming the citizenry is as a check on federal tyranny, then a militia is how it will have to happen. The idea that the 2A is about self-defense seems a very recent interpretation.
> 7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people of any of them, unless for crimes committed, or real danger of public injury from individuals;...
* The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18,1787)
I don't think it's actually just arms and equipment. It means 'well-ordered.' It's the ability to call up organize and elect leadership from the people at need, among many other things.
For example, Article I Section 8 provides Congress the power
"To make Rules for the Government and Regulation of the land and naval Forces;"
It's in a similar manner that the 2nd should treat 'regulated' militias.
More like 'appropriately armed' or 'properly equipped', no? "well-armed" and "well-equipped" imply a surfeit of arms and equipment, whereas well-regulated connotes balance or homeostasis
Remarkable. The Founders totes protected the right to bear arms because of "racism," and not because they had just used the right to bear arms to found for themselves a new country free of the British monarchy. That makes total sense.
Collapsing the entire history of a nation into a narrative about a minority within the nation.
You forgot the part about it dating to the English bill of rights of 1689, a country that never had slavery on its shores and no non-whites to oppress.
American white southerners (and white northerners for that matter) were scared out of their minds about the possibility of a rebellion comparable to the Haitian Revolution, which was contemporaneous with (edit: to clarify, took place during the ratification of) the Bill of Rights. https://en.wikipedia.org/wiki/Haitian_Revolution
A guarantee that “well regulated” militias under local control would not be taken down by the federal government was certainly related to slavery. Maintaining wealthy landowners’ power and protecting from slave revolts or other uprisings of disempowered people was perhaps the #1 purpose of those local militias.
> American white southerners were scared out of their minds about the possibility of a rebellion comparable to the Haitian Revolution, which was contemporaneous with the Bill of Rights. https://en.wikipedia.org/wiki/Haitian_Revolution
Wasn't a war for independence in which widespread civilian firearm ownership played a part in winning also kind of contemporaneous with the Bill of Rights?
Played a part in winning? Yeah and I'm sure the tens of thousands of French troops, muskets, the entire French Navy, and a billion livres had something to do with it too. The militia fared so well in 1815, as well.
>American white southerners were scared out of their minds about the possibility of a rebellion comparable to the Haitian Revolution, which was contemporaneous with the Bill of Rights. https://en.wikipedia.org/wiki/Haitian_Revolution
That's not accurate. The Bill of Rights was passed by Congress two years prior to the Haitian Revolution.
Virginia voted the Bill of Rights into effect in November/December 1791. The Haitian Revolution was in August.
Both (a) worries about a national government changing the status of slavery against local landowners’ wishes and (b) worries about slave revolts were important for Virginian antifederalists. Maintaining a local militia was a hedge against both.
You are right that the ideas in the Bill of Rights come from earlier. The Virginia Declaration of Rights (1776) was the main source of the text of the 2nd amendment: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”
Likewise, the Haitian Revolution was not the first slave revolt.
When Virginia finally ratified, they didn't modify the words. The words were the same from years earlier.
I read her book, by the way; I ended up also reading two others over the last week that I think were more compelling, and made her points in a more definitive way. She's totally right that, especially in the Carolinas, slave revolts were one fear that led people to want guns; in fact, a part of the revolution becoming so bloody there was due to that fear; the British governor took the powder away.
The people interpreting her (this was not something she said, at all) are not correct in thinking that this created the full foundation of antifederalist thought, but there was definitely an undercurrent of it in the deep south and to a lesser extent in Virginia.
Unfortunately, she misrepresented some things that appeared to support her conclusion, including the data around gun ownership in the 18th century. No fabrications, just not telling the whole picture. It's a problem endemic to pop history.
I'm still going through my old notes from the letters between the major political players from 1785-1790 and looking for references there so I'm not ready to concede the Henry stuff or that this is the reasoning behind the 2nd's inclusion.
It’s not “funny”. But to borrow your phrasing, it’s almost as though gun access, gun control, gun violence (and threats of violence), gun rights advocacy, and gun-related law enforcement were and continue to be racist, along with quite a lot of the rest of US policy and society. If you read (or even read about) the book you are lazily mischaracterizing you would see that the racism of gun control is discussed there at length.
There is indeed a consistent principle there – white supremacy (and more generally, rich straight white male supremacy). All of the rest – “public safety”, “free markets”, “job creation”, “economic growth”, “liberty”, “equality”, “patriotism”, “justice”, “respect for the law”, “meritocracy”, “republicanism”, “accountability”, “fiscal responsibility”, “originalism”, “family values”, “Christianity”, “truth”, etc. – are secondary, swappable, and dispensable smokescreens. At a glance these post-facto “principled” justifications seem contradictory and hypocritical, but that’s only for listeners who take any of them at face value.
Those who quick-change their claimed fundamental philosophical principles whenever convenient routinely turn around and (to use your term) smear anyone opposed to them.
> gun rights advocacy, and gun-related law enforcement were and continue to be racist, along with quite a lot of the rest of US policy and society… There is indeed a consistent principle there – white supremacy (and more generally, rich straight white male supremacy).
As a non-white immigrant to American, this uniquely American form of self flagellation is remarkable to me. Of all the things I find noteworthy about America and its history, I think of those other things you listed. The “racism” is among the least notable of characteristics. Historical slavery and dominance by the ethnic majority is what America shares with countries in Africa, Asia, and the Middle East—not what sets it apart!
Sometimes, though, I feel guilty for pushing back on this sort of thinking. This depredation of one’s own history and cultural heritage is incomprehensible to me as a foreigner, but maybe this zealous self loathing is actually what drives America’s distinctive capacity for self improvement.
Ah yes, we should all instead celebrate mass murder, slavery, mass incarceration, torture, etc. Hooray for the Battle of Wounded Knee!
While we are at it we should be cheering for children to be shot at school mass shootings, women to die in dangerous pregnancies they were forced to carry to term, innocents to rot in prison after crooked cops planted drugs on them, transgender teenagers to be lynched, and elderly homeless people to die on the street after being defrauded of their life savings.
Because caring about what happens to other people would be “self flagellation”, a deep waste if we could instead spend that attention on working for a big suburban McMansion packed with servants where we can train our own children to be entitled little shits, to prepare them to come out at the top of the coming social turmoil when global warming starts to really wreak havoc. Just don’t let those kids get near public school teachers, Tucker told me they are all pedophiles.
>But they recognize that the second amendment was written with racist intent
That's a pretty weird argument; I get the Patrick Henry thing with the Virginia Declaration of Rights but that doesn't even establish the 2nd amendment as we know it.
Hell, we actually have the reasoning here in Federalist 46:
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. "
I'll read her book to see what she thinks I suppose because she's a prominent historian and surely knows more than me but it still feels strange.
Sure, but did they write the first amendment with racist intent? It isn't as if everything a racist does is motivated by their racism, they aren't putting the kettle on to make some tea to really show those [insert racial minority here] what for, or buying new jeans to put [insert minority here] in there place. There aren't racists planting bushes in their garden specifically to be racist. They are just racist people planting bushes because they want bushes in their garden and the racism is entirely unrelated.
You're quoting the Nevada chapter of ACLU, now the parent organization. ACLU itself has consistently taken the position that the Second Amendment does not confer an individual right to own firearms.
1a issues have gotten a lot more complicated in recent years as people try to use 'free speech' as cover to rally for causes that marginalize, harass, and ultimately remove rights from others that the ACLU also wishes to protect.
They are basically experiencing a "Paradox of Tolerance" problem at an organizational level and still haven't really figured it out, and to be fair it's a tough problem.
If someone says they don't want millions of illegal immigrants pouring into the country, are they "rallying for causes that marginalize, harass, and remove rights from others?" If someone says they don't support gay marriage on religious grounds, are they engaging in hate speech?
What issue is free from being percieved as an attack on someone else?
Want to put price controls on rent? You're stampeding on property rights. You are marginalizing landlords!
Want to create a company and hire people you want to hire? You're discriminating against those you don't want to hire.
So on, and so forth. All contentious issues involve granting the advantage to one party over another. That's why they are incendiary.
If we don't have free speech, then people will go underground and you'll have subterranean political battles with a banal surface counterpart. In other words, public speech will become completely insincere and everyone will be holding a knife behind their back while they wear big gregarious smiles and say the nicest things.
This has already happened. Free speech has already been effectively eliminated by dumbing down the population. We cannot expect any nuanced public debate. All political speech is reduced to slogan after slogan, "hope and change," laws that have catchy names like "the Patriot act," etc.
It's practically already gone and the underground pressure that one would expect in such a dysfunctional political climate is already at an eruption point.
I don't know what free speech means when most people are too stupid to understand anything above grade school level.
For free speech to serve its function, certain conditions must be met. One such condition is that the population must be educated. If this condition is not satisfied, demagogues can easily abuse free speech by playing on people's weaknesses and lack of understanding. Another condition is that the people must be moral. If they are purely self-serving and not interested in pursuing truth and moral judgments, then free speech will just be used for vicious partisan wars.
We may still "have free speech," but the conditions that make it functional aren't being met.
It's like a marriage where one spouse is secretly unfaithful. Sure, they are "married," but the foundational condition of fidelity has been violated. It's a marriage in name only, an empty formalism.
We have free speech in name only. The conditions which allow free speech to be an effective regulatory mechanism of public tensions are unsatisfied--just like a wife or husband that cheats.
how is it any more complicated now than during skokie or brandenburg v. ohio? the aclu threaded the needle, successfully in my opinion, for decades and it is only in the trump era where they seem to have reneged on a maximal commitment to preserving civil liberties based on the 'who' of the case. i believe that change has been to the detriment of everyone.
I don't accept that this is new. This has always been the tension in this debate. It was the tension when they supported the Nazi's right to march in Skokie and it was the tension for 200-years-worth of arguing about it before that.
And it's a tension that the ACLU once took a clear (and extremely controversial) position on.
I hear the Paradox of Tolerance whipped out in discussions of how best to curb free speech before it harms others. I'm always genuinely curious about this, since it seems to me that this curb is already really well-defined: free speech does not imply free action inspired by that speech.
We already have laws against speech which causes imminent and material harm (e.g. libel laws, incitement of violence), and beyond that it seems like the Paradox of Tolerance doesn't actually apply here: nobody is advocating that we should tolerate the whole slippery slope of action, most advocates (myself included) carve out tolerance explicitly for speech alone.
Speech inspires action. There is a lot of legally allowed action that can still cause plenty of harm, and speech can stimulate that action.
I don't have a solution, but we can't pretend that speech isn't much more powerful in today's society - if it were the profession "social media influencer" would not exist.
IMO we have systems today (social networks) that make previously unspreadable speech pathological by creating a brain-virus-spreading environment (which is why things go viral, literally). Furthermore the environment favors evolution towards short, poorly thought out, poorly reviewed, "engaging" (and enraging) yellow-press like content.
I really think it's true that speech isn't much more powerful in today's society. We just don't remember how powerful it was in the past, because the problems caused by free speech are precisely the kinds of problems that the grand narrative of history tends to smooth out. We talk about pathological Internet speech causing political violence, for example - but do you know about the years-long bombing campaign by the Weather Underground in the 70s, or the time in 1954 when five congresspeople were shot on the floor of the House?
It is more powerful because it reaches more people - and furthermore it has exponential amplifiers (social networks) that encourage the most pathological kinds of it.
Pathological medical misinformation causing widespread damage certainly isn't a new phenomenon. Do you know about the lobotomy trend, where 40,000 Americans had their brains sliced apart for no good reason? (Have you seen the news clippings of deniers and snake oil ads for the Spanish Flu?)
Precisely, and this is genuinely scary. At the time, there was no sophisticated evolutionary environment that spreads "information" at lightning speed with a fitness function tuned for "engagement" and bad ideas still found ways to spread.
Nowadays a random tweet can (sometimes accidentally) mobilize a mob with pitchforks.
What I'm trying to say is that there was such an evolutionary environment. The 60s were full of deadly riots mobilized by some minor rumor - the Watts riot, for example, killed dozens of people in response to rumors of police misconduct in a drunk driving arrest. We just don't normally think about it this way, because when we look back at history the Watts riot is always interpreted as a facet of "race relations in the US, 1960-1970" rather than a standalone event.
Are you saying we had systems for spreading rummors that were just as efficient and sophisticated as today's, 40 years ago?
I'm not sure I have the right words to explain what kind of environment I mean. A platform such as twitter is a directed graph with billions of connections, all operating instantly. Tweeting is effortless, retweeting even more so. For many people this means sending something to thousands (sometimes millions) of others to see needs less than a couple of seconds of effort.
My claim is that the radical increase in efficiency and volume comes with radically new problems of scale.
I'm saying that it was easy to get a rumor seen by thousands of people if you wanted to (just tape a poster to a local utility pole), and the slightly lower startup costs in a social media world don't seem to be producing any radically new problems. This makes intuitive sense; any rumor exciting enough to provoke a real problem is gonna be exciting enough that people are willing to make flyers for it. There are certainly things I see on social media that I don't like, but none of them seem like they fundamentally couldn't have happened without social media.
Is that irony, though? Not that I downvoted the parent comment or anything, but inasmuch as downvoting is saying "I don't think your comment is of high quality", that's totally not inconsistent with free speech.
There's a difference between saying "I think XYZ is wrong" and saying "I don't think people should be able to say XYZ", and downvoting feels much more like the former.
Yeah, I'd prefer engagement instead. Thought on these things must be refined, and we should probably do it fast because the knee-jerk solution (censorship) is taking over really fast.
Its the same problem as the yellow press, and we'll probably arrive the same solution (people learning to completely ignore random bullshit they read on social media)
> I don't have a solution, but we can't pretend that speech isn't much more powerful in today's society
I am not actually convinced of this: speech is a lot more spreadable today, but there is also a lot more of it from a lot more angles. Just as a greater supply of currency drives price inflation, a greater supply of opinions drives speech inflation: your opinion can spread across the world in seconds, but people give far less of a damn than they used to.
> Furthermore the environment favors evolution towards short, poorly thought out, poorly reviewed, "engaging" (and enraging) yellow-press like content.
I can think of no period in history where this wasn't the case. Bread and circuses have been the go-to of those in power since the dawn of history.
Social media is an environment for spreading brain viruses. Here is how it works (with Twitter as an example, even without an algorithmic timeline):
A person tweets something. They have N followers
A subset of those followers may see the tweet (the equivalent to getting close to an infected person), and a further subset of those will click retweet (the equivalent to getting infected)
The proces then repeats with their follower's followers and so on (exponentially)
As such, Twitter is an environment where various ideas and their mutations are generated in a similar manner to viral organisms, and the "fittest" ones survive and spread exponentially. You could probably even calculate the R0 of a tweet (i.e. average number of retweets, quote tweets etc caused by a previous tweet)
All of this in turn means that the fitness function of the environment is incredibly important. Now, would you say Twitter as an environment encourages carefully checking information with other sources or for contradictions before clicking retweet? Or does it favor tweets that provoke a quick emotional reaction and a retweet within a couple of seconds of reading them?
Note: for specific harm, I posted an example of what social media can do to people (link is on threadreader https://threadreaderapp.com/thread/1458881015917678594.html). I realize its long, but its really hard to explain the problem without seeing the effect in its entirety, especially given how we all (me included) hold free speech in high regard. (Yes I still do, but I now also understand how easily it can be abused to cause immeasurable harm in our new social media environments, and I think we must be at least aware of this)
Nah, you're just making things up and haven't provided any valid evidence to justify restrictions on free speech. Stupid people have always believed stupid things since long before social media. Remember the days of forwarded hoax email chains?
Words are not harmful, unless they're a specific and credible threat or incitement to violence. People claiming otherwise are defining down "harm" to such an extent as to make the term meaningless.
Once people start saying speech is violence I exit the conversation. Generally said by the most white bread privileged people because they've never experienced actual, real violence.
The ironic thing here is that the main reason you've seen that kind of claim is because social media tends to spread the most outrageous / novel / radical kinds of speech (in turn further causing radicalization among the recipients of it)
More discussion about vulnerability to cognitive biases, speech that abuses and exploits them. https://www.youtube.com/watch?v=jzzjbSkrLCQ and how social media design supports and reinforces this kind of speech over others.
To see what I mean by harm, read the threadreader link.
My best idea so far is similar to the solution we had for yellow press and tabloids. We learned to recognize and be aware of manipulative kinds of journalism. If we are all careful, more aware and more skeptical - especially on social media - there will be less opportunity to be duped.
But this is a very old game of indirectly signaling one's pretensions of superior human quality by implying that things others consider harmful are do not qualify as harms to themselves, and thus less important than the freedoms that they desire to have, some of which may inflict those harms on others.
Welcome to the Dungeon (c) 1986 Amjads (pvt) Ltd VIRUS_SHOE RECORD V9.0 Dedicated to the dynamic memories of millions of viruses who are no longer with us today - Thanks GOODNESS!!! BEWARE OF THE er..VIRUS : this program is catching program follows after these messages....$#@%$@!!
Yes. And you can prevent whoever you want from posting on your website. Legally, social media platforms are under no obligation to uphold free speech.
There are two discussions happening about this, though. One is simply a critique of the social media platforms, i.e. they may be legally entitled to do this, but is it actually the right way to behave? The second is a question regarding whether or not it should be legal. To be clear: it is legal. But given that these are functionally monopolistic entities, and they do operate as the de facto town square, should they be made to accommodate broader speech?
I think ISPs are supposedly regulated by net neutrality. But again, are you trying to talk to me about what is legal, or what should be legal, or what should be encouraged? Because those 3 aren't the same, and I'm a little bit annoyed at the fact that you seem to be leading me to your point an inch at a time with the implication that I haven't bothered to think this through.
Well, it still is an extremely easy concept. The examples you gave about businesses and magazines is that they can decide to not adhere to freedom of speech and they aren't obliged to do so legally. If they ban content the dislike they are not practicing freedom of speech. Still simple.
But you’re ignoring their own freedom of speech. If party A wants to voice something through party B, and party B does not want to express it, their freedoms of speech are in conflict. You cannot resolve this without one party not being allowed their freedom of speech.
And if the answer is it’s always in party B’s court, then you make the situation very difficult when it comes to social media and even direct messaging platforms between two private entities.
I have specifically said that they have no obligations. But if they silence an opinion because they don't like it they don't adhere to the principle of freedom of speech.
I don't think social media platforms have any legal obligation to allow anyone to state anything. It was a culture that had formed on the net in most places. I has no relation to the law or the US first amendment in any way. It was a foundational rule for the exchange of ideas and that always requires freedom of speech.
Also, almost every institution that want intellectual exchange has to adhere to the principle because it is a fundamental part of dialectic. Many educational institutions are falling short here lately, but at least most are improving again. But that is a completely different topic.
People that silence others without a justification are rightfully looked down upon in my personal opinion because they are not capable of intellectual exchange. And these ideas are also enshrined in human rights for a reason, although these are sadly also not really legally binding.
"people try to use 'free speech' as cover to rally for causes that marginalize, harass, and ultimately remove rights from others" Isn't that the point of the article? The ACLU used to promote free speech for Nazis. Now its political.
To be fair to the ACLU, the interpretation of the Second Amendment as granting an individual the right to have personal guns independent of a militia is a very recent interpretation (Heller, 2008). It's also had disastrous consequences. It would be like expecting the ACLU to soon advocate against women's bodily rights in a few years because a new Supreme Court decision changed the long-held interpretation of the Constitution.
It’s not a “recent interpretation.” There was a long period during the 20th century when a narrow view of the second amendment was favored, but in earlier eras it was regarded as a personal right. It was actually liberal scholars like Akhil Amar that did critical work laying the foundation for Heller: https://newrepublic.com/article/73718/second-thoughts
> The key subject-nouns were simply different ways of saying the same thing: at the Founding, the militia was the people and the people were the militia. Indeed, the earlier draft of the amendment linked the two clauses with linchpin language speaking of “a well regulated militia, composed of the body of the people.” The linchpin was later pulled out as clumsy and redundant. A modern translation of the amendment might thus be: “An armed and militarily trained citizenry being conducive to freedom, the right of the electorate to organize itself militarily shall not be infringed.”
Recall that the Constitution bars maintaining a standing army in peace time. The Framers obviously thought that the way to go was to round up a bunch of armed yokels (sorry, citizens) in times of war, instead of maintaining a permanent army. That is, in fact, what they did during the Revolutionary War.
There's contours to that--I kind of think that the Swiss system where you're required to have guns, but there are measures for keeping them secure in peace time would be Constitutional. But random individuals need to be able to own guns without belonging to a formal "militia" because random individuals are supposed to be the militia.
Correction: until 2008 in Heller, the Supreme Court had never clearly and definitively ruled the 2A is an individual right. It had previously referred to the 2A as an individual right in dicta (non binding opinions) that date back to the 19th century, and many courts and legislators back to the 19th century had also done so.
The interpretation of the 2A as a “collective” right associated with membership in the national guard/militia is largely a creation of 20th century lawyers.
That said, I personally believe the 2A as intended by the founders is likely no longer suited for the modern world and some amendment to limit its scope would be reasonable.
I personally believe the 2A as intended by the founders was to protect against an orwellian government which is why it’s more important now than ever. Most recent example: Ministry of Truth. Who’s truth? Well whoever happens to be in power. This is called the rule of man not the rule of law.
> I personally believe the 2A as intended by the founders was to protect against an orwellian government...
Orwellian is an anachronism here.
It was probably meant to protect to right of the people to engage in a violent revolution when required, and enacted by people who had literally done so to create the United States.
> It was probably meant to protect to right of the people to engage in a violent revolution when required, and enacted by people who had literally done so to create the United States.
This is how I learned 2A. More or less, no government can last forever and at some point governments will need to be overthrown and set anew. Sound familiar?
> We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
They even provided some basic criteria for when might be a good time:
> Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
I was taught that 2A was the tool that ensures that this section of the Declaration of Independence would still be relevant to their new government.
If you believe this, does the 2A give people individual rights to own tanks, missiles, nukes, chemical weapons?
If not, why? Where are the limits in the constitution on the types of arms a person can own?
This is especially relevant if the goal of the 2S is to be able to stand up to the US armed forces.
Or is it your view that the goal of the 2A is for a poorly armed mob to be able to rise up in collective suicide against better armed better trained government forces?
> Or is it your view that the goal of the 2A is for a poorly armed mob to be able to rise up in collective suicide against better armed better trained government forces?
You need to define the hypothetical 'sides' here a little better. Is this armed mob fighting for principles that many members of the 'government forces' agree with? Would this government force be willing to kill large numbers of their neighbors and fellow countrymen?
A surprisingly effective resistance can be made by an outnumbered/outgunned 'mob', assuming they have some basic weapons. Home field advantage and guerrilla warfare go pretty far. See: Vietnam, Afghanistan, Ukraine.
As a follow up - If Vietnam, Afghanistan, and Ukraine are related to the 2nd Amendment necessary rebellion theory, then the implication is that the insurgent weapons in those wars are covered by the 2A.
Very interesting.
A personal right to fully automatic weapons, SAMs, tanks, anti-tank, etc.
Yeah, I don't think so.
Militia is used 6 times in the Constitution and collected amendments. I tend to think that it means the same thing in the 2A as in the 5 places.
You and I actually believe the same thing, I just believe 2A is linked to early militias, and in the event that there were infighting in the US that early component would be needed again. I also believe 2A reinforces state power with respect to federal power, and balancing them is important.
You on the other hand are an egotistical ass with 220 karma and behavior to boot.
> If you believe this, does the 2A give people individual rights to own tanks, missiles, nukes, chemical weapons?
Yawn.
But I suppose you want an answer, so how about this: infantry weapons that a regular citizen can reasonably afford and practice with (i.e. shoot on a regular basis).
So military-style automatic rifles, machine guns, etc.
> If you believe this, does the 2A give people individual rights to own tanks, missiles, nukes, chemical weapons?
This question seems loaded, especially after how you started it with "if you believe this" when I already stated the foundational belief I have, but I'll take your question in good faith.
Citizens can already own rockets and missiles? Yes, they can, which is why there's private space companies. That has very little to do with 2A. As far as I'm aware an FFL (Federal Firearms License) would not give you access to chemical weapons. It's also not that hard for citizens to produce chemical weapons with household cleaners, but that also is beside the point.
2A, and pretty much anything below an FFL, is mainly the subject of my discussion. With an FFL a citizen can purchase pretty much any weapon, including a tank, or explosive.
> Where are the limits in the constitution on the types of arms a person can own?
Various states have attempted to circumvent the federal governments monopoly on this law, but I guess you could start to form some specific criteria by looking here: https://www.atf.gov/firearms/apply-license You'd have to cross these with state laws; some are very permissive, others not.
> This is especially relevant if the goal of the 2S is to be able to stand up to the US armed forces.
I mean, it's not that hard. The Taliban did it and they mostly had assault rifles, REX, grenades, and rockets (the anti-tank kind, not the artillery kind). I'll also address this in the next answer.
> Or is it your view that the goal of the 2A is for a poorly armed mob to be able to rise up in collective suicide against better armed better trained government forces?
There are several types of militias, two predominately in the US [2]. The first is a private militia [3]; to my knowledge in current day most of these are just extremists, but in a scenario that necessitated separating from the federal government I would assume people would start forming their own legitimate militias. How effective a militia would be would likely depend on their knowledge of tactics that the US military would employ. The second type is the state national guard [1]. State guards are trained by federal military but serve the states and are under the states command. National guard numbers, when fighting a federal power, would not be sufficient though. Supply lines would likely be disrupted and choked as well, so citizens and their weapons would be needed.
The short of it is no, I don't think it'll be just some randos running around fighting and causing an insurrection. It'd be coordinated state action alongside citizen militias if things came to that. To me, though, all these things help keep the government in check because the power of the federal government is not larger than the sum of collective state action.
Edit:
I also don't really appreciate the "fantasy" comment. I'm a U.S. citizen, I don't want any of that to happen. History shows that the influence of militias and participation was key in forming the US and was key throughout the politics of staying together as a country. Private citizens having access to weapons was key to early militias and you can't really separate the two at any point in history. For a more contiguous history: https://angrystaffofficer.com/2017/03/20/a-short-history-of-... (this does leave out that states actually have laws regulating private militias, though that's the only thing I could find wrong with it)
> It was probably meant to protect to right of the people to engage in a violent revolution when required, and enacted by people who had literally done so to create the United States.
If this was the actual interpretation being promulgated legally then there's all sorts of weird follow ups to it: i.e. any ruling or law which increases the level of security and protections of government institutions against some definition of an armed citizen militia would be against the spirit of the 2nd amendment because you're reducing the ability of the citizenry to engage in a successful violent insurrection.
This is a perfectly sensible precedent: if the Second Amendment is interpreted as an intent to allow armed revolution, then for some legal definition of a "just" revolution the arms of the citizenry must allow them to fight and win, and this could be reasonably interpreted therefore as "the government may implement no security measures which make it so safe it could not be overthrown".
> If this was the actual interpretation being promulgated legally then there's all sorts of weird follow ups to it...
Not really. You can only go places like that if you use an interpretive framework were words can be stretched past the breaking point and speculations piled one on top of the other to take you anywhere where you want to go. A lot of people think that's not a reasonable way to interpret the law, and they do have a point.
> This is a perfectly sensible precedent...
If that's "perfectly sensible precedent," cite the case that established it.
The entire concept of judicial review is built on this benchmark - "if this, then why not that?"
That it is not established is because the SC has definitely not interpreted the 2nd to mean "power to overthrow the government" - but it has mostly managed to do that by completely disregarding the first half of the 2nd's wording in favor of "citizens may own small arms" - which is oddly specific given the rest of the phrasing, but that was the conclusion they drew from Heller[1]
I'm responding to the claim that the "founders" intended it for armed insurrection: did they? Because the Court does not interpret it that way, and if it did then you do in fact have to answer questions about why any limits on owning hardware sufficient to overthrow the government are allowed.
A claim about Founder's intent in the constitution isn't some idle statement: the purpose and reason for the Supreme Court is to carry through interpretation of that the intent of the constitution for law of the land, otherwise why bother saying it? If we're going to ignore law and precedent then none of this matters.
> The entire concept of judicial review is built on this benchmark - "if this, then why not that?"
Even so, your interpretation had another fatal flaw: you weren't balancing any interests.
But in any case, it's still a nonsense straw man.
>>> This is a perfectly sensible precedent...
>> If that's "perfectly sensible precedent," cite the case that established it.
> That it is not established is because...
Then it's not a precedent.
> I'm responding to the claim that the "founders" intended it for armed insurrection: did they?
The founders literally committed armed insurrection, and IIRC it's pretty well documented that the understood the necessity of armed revolution in certain circumstances. I believe there are even some direct quotes in this thread. I can also recall off the top one that spoke positively of a rebellion every 20 years:
> God forbid we should ever be 20. years without such a rebellion.... And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.
I was very clearly referring to the fact that if the 2nd amendment were to be taken as an intent to allow citizens to revolt against the government then it is not clear on what grounds the seemingly absurd corollaries of that, as a legal position, would be dismissed. Which you haven't addressed at all except to say "but it's not actually precedent yet!"
It is not - because the Supreme Court has very obviously in Heller not interpreted it that way. So I don't know of what value anyone can argue this was the intent because the body defining the law of the land and the interpretation of the constitution does not agree with you.
But even if we grant the SC is not the be all and end all, you still haven't managed to actually address why that position would be absurd? What use are firearms against a Federal government which, to take an extreme example, gives itself Dune-style shields for all officers and personnel, but not civilians. Why are limits on arms, actually suitable to overthrow the government - so say, maybe a whole lot of Javelin anti-tank missiles as they are currently proving useful - not within the remit of the 2nd?
How so? It's not a word that would have been known to the founders, but neither is "2A". It makes no sense to claim that when we talk about the founders, we can't legitimately use our own language but must instead use theirs.
> How so? It's not a word that would have been known to the founders, but neither is "2A".
"Orwellian" is specifically modern ideological term with a lot of specifically modern connotations (e.g. a technological surveillance state) that are misleading when talking about people from the 18th century. My sense is it's a whole lot narrower than what the founders had in mind.
On the other hand, the Second Amendment was literally written by one of the founders.
> It makes no sense to claim that when we talk about the founders, we can't legitimately use our own language but must instead use theirs.
Use anachronisms all you want, no one's stopping you. It just that by leaning on them, you're likely spout nonsense and either confuse yourself or confuse others.
Also, there's important differences between "modern language" and "anachronism."
One person's "Orwellian" is another's "Law and order".
Civil asset forfeiture is pretty Orwellian, IMO, not to mention a direct violation of your Fourth Amendment rights, yet I haven't heard of anybody using their Second Amendment right to protect themselves from it.
Generally speaking, the word for people who try using their Second Amendment rights to protect their Fourth Amendment right against civil asset forfeiture is "corpse".
I thought my implication was fairly clear, but to be explicit: If you brandish guns against police who are attempting to seize your property through civil asset forfeiture, they will shoot you, and most likely kill you.
The founders idealized the Roman Republic and sought to create a system where the central government would never have the power to seize control as Julius Caesar did.
But I don’t think turning out to the streets with AR-15s is an appropriate response to the government forming an ineffective propaganda office (ministry of truth). We’ve seen the awful cost of civil war both here at home in 1861-65 and recently in countries such as Syria and Libya. Violent revolution should be the absolute last resort especially in a world where total war is practiced and not the relatively civilized and small-scale warfare of the American revolution or the 1688 English Revolution.
In practice, the US government has committed atrocities throughout history against citizens and the 2A did little to help (genocide of native Americans, discrimination against Germans in ww1, Japanese internment in ww2, Jim Crow and slavery, the civil war itself where armed citizens just joined whatever side they lived on, etc.)
> But I don’t think turning out to the streets with AR-15s is an appropriate response to the government forming an ineffective propaganda office (ministry of truth).
I don't think the founders envisioned that at all. Your rifle is for sitting behind your door and waiting for the tyrannical government to break down your door and realize that the first person to breech is probably going to die. It's a deterrent to ensure that law enforcement is willing to do the bidding of said corrupt government. Guns are not meant to be for menacing the public. They're for defending life and property. And yeah, property.
If "Disinformation Governance Board" bothers you more than "Department of Homeland Security" did, you may be responding to what "they" want you to more than you think you are.
I love how government is obviously incompetent, but only until something they do sounds conspiratorial.
> The interpretation of the 2A as a “collective” right associated with membership in the national guard/militia is largely a creation of 20th century lawyers.
This is Daughters of the Confederacy "states rights" levels of historical revisionism. The origins of the Second Amendment were rooted in quelling a potential slave uprising [1]:
> The Virginians were slave-owners. Jefferson had inherited 175 slaves and had purchased a few more. Henry ultimately had 76 slaves. Madison had dozens of slaves. Militia was necessary because from them, “slave patrols” were formed to keep order. Virginians also wanted to avoid what had happened during the Revolutionary War: slaves were invited to join the Continental Army and thereupon became free. Henry even feared that abolitionists would find a way to use the Constitution to manumit all slaves. “In this state,” Henry emphasized, “there are two hundred and thirty-six thousand blacks, and there are many in other states.” It, therefore, was of paramount importance that State rights to maintain militias unregulated by the federal government be included as an amendment, if Virginia were to ratify the Constitution.
> So the Second Amendment was born. Not to protect individual rights from encroachment, but to guarantee states the right to keep armed militia free from federal interference, in order to maintain control over black slaves. Not the noble motivation one might have hoped for. But the truth about the need for a state Militia and the intent of the Second Amendment.
“That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;”
> So the Second Amendment was born. Not to protect individual rights from encroachment, but to guarantee states the right to keep armed militia free from federal interference, in order to maintain control over black slaves.
This is completely unable to explain why Free states in the north had a similar provision in their state constitutions recognizing the right to keep and bear arms. For example, was no need for slave patrols in Massachusetts, whose 1780 constitution contained this clause “The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.”
True, but those who say the 2A is a “collective” right for the militia would not usually say that any male aged 17 to 45 should be able to purchase an AR-15 via their membership in the unorganized militia and Selective Service card.
The collective right concept attempts to turn the 2A right into the idea that Congress shouldn’t pass a law to take away weapons from its own soldiers and army, which makes very little sense.
> The collective right concept attempts to turn the 2A right into the idea that Congress shouldn’t pass a law to take away weapons from its own soldiers and army, which makes very little sense.
Very well said. The utter incoherence of the concept makes it clear that the interpretation is wrong. It's like interpreting the First Amendment as protecting Congress from preventing itself from assembling and not the people's right to protest it.
> To be fair to the ACLU, the interpretation of the Second Amendment as granting an individual the right to have personal guns independent of a militia is a very recent interpretation
I'm sure they've heard about it, though, so that's no defense. The question raised in that article is: should they be picking and choosing which rights they defend? The admirable thing about the ACLU was that they would always defend civil liberties, because the loss of any of those is worse in the long run than the distastefulness of supporting someone you may disagree with in the short run.
>...because the loss of any of those is worse in the long run than the distastefulness of supporting someone you may disagree with in the short run.
This argument doesn't hold water when we are talking about 2A though. Kids getting their heads blown off isn't the same as having an uncomfortable conversation with a Nazi.
Personally, I don't really care about gun rights. But I care very much about trying to deny the 2nd Amendment without a Constitutional Amendment. If that right can be cast aside as being outdated or inconvenient, what about our other rights?
Which one is next to be discarded? Free speech? (That's under constant assault today.)
Constitutional Rights were changed in 2008 when Heller became the law of the land, no Constitutional Amendment. We all lost our freedom from guns. Hundreds of thousands of Americans have died as a result. All on the whim of the court? All because a single kid with an AR-15 that he stole from his aunt was somehow envisioned by the founders of the US?
> the interpretation of the Second Amendment as granting an individual the right to have personal guns independent of a militia is a very recent interpretation
IIRC, in colonial America, the militia was understood as basically "all male citizens," and its members typically used personal weapons.
That makes the text and structure of the Second Amendment make a lot of sense: if a militia is necessary for security, and an armed populace is required for a militia, then to protect the militia you have to protect the right of the populace to be armed.
When you remove the immediate context of the sentence and squint real hard you can almost read a "well regulated militia" to mean a completely unregulated individual.
They've begun taking positions against individual civil rights. They've always been anti-2nd amendment, which I can understand, but this has escalated to the point that I think they're often on the wrong side of 1a issues as well.
I won't donate to them anymore. I regret that I did in the past.