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It’s hypocritical to oppose CISPA but support gun control legislation (rubbingalcoholic.com)
29 points by rubbingalcohol on April 18, 2013 | hide | past | favorite | 64 comments



The gun violence legislation that a minority of Senators blocked yesterday would have required background checks on all gun sales, instead of only sales from registered brokers as is currently the case. The reform is supported by nearly 90% of the American public, and 85% of gun owners.* To compare this to CISPA -- which overrides much of existing privacy law to essentially end the notion of online privacy -- seems absurd.

*http://www.quinnipiac.edu/images/polling/us/us03222013x.pdf/


I would argue that a majority of Americans do not understand exactly how a current firearm procurement actually works.

It's like asking if cars should have safety features. Of course you the vast majority of people will respond yes.

The idea that in order for my father to give me a rifle, we would have to go to a federally licensed dealer (pay $50-100 for them to process us) to avoid becoming felons is absurd. A number of amendments to proposed legislation have sought to deal with this issue, but the champions of gun control really don't care.


FUD: The proposed legislation that (technically the proposed amendment, which was co-authored by my Senator, Pat Toomey) explicitly excluded transfers of weapons within a family -- those remained unregulated. Nevertheless, the amendment received only 54 votes out of 100.


That wasn't the only amendment up for a vote, and before being absolutely sure that carve out would hold up it would need examination in light of e.g. the "advertised on the Internet or any publication", and how the courts interpret it and many other parts of this at best very badly drafted amendment.

To the extent we were able to analyze it in the time we had, it was clear Toomey had no experts helping him (the list of qualified lawyers is rather small, after all, but the errors, if they were that, in what were supposed to be pro-RKBA provisions were telling). Whereas part of this law was lifted straight from the horrible Schumer bill it was proposing to amend (that would go a lot further, its definitions of "transfer" were lethal), not surprising given that Schumer was also a co-sponsor along with anti-RKBA Kirk and drama queen trending anti-RKBA Manchin.

Requiring NICS checks for all "transfers" was very much up for discussion (heck, even quasi-relevant to Newtown, except of course transfer by murder and theft is already illegal), so making that point in a general discussion is hardly illegitimate, let alone FUD.


You clearly know more about it than I do. However, masonhensley's claim that "the champions of gun control really don't care" is plainly false. Perhaps the wording was wrong, but the clearly stated goal was NOT to prevent transfers within a family.


I think it's a defensible statement. I grant you that no champions of gun control voted against Manchin-Toomey-Sauron (as we've been calling it as of late :-), excepting the special case of Harry Reid since Senate rules then allow him to bring it up again, but you don't have to step back very far.

E.g. without the poison pills and gotchas in Manchin-Toomey-Sauron (again, details on request, and, yes, I probably do know more since I read all of it :-), it would have had a much better chance of success. But it's the "champions of gun control" who we assume e.g. inserted the nullification of the Firearms Owners' Protection Act (FOPA) of '86 provisions for protected interstate travel at the same time they were ostensibly strengthened.

Seriously, my move from Massachusetts to Virginia in 1991 would have been felonious if Manchin-Toomey-Sauron had been in effect then. Well, I suppose I could have arranged with two FFLs, one in each state, to ship my guns, but I hope you're getting the general point, it wasn't a "clean" bill, and that wasn't the fault of nominally pro-RKBA Toomey, except in his decision to sup with the devil in the first place (especially without a top flight food taster (serious pro-RKBA lawyer---lawyers would be an asset when dealing with the devil :-)).


This is indeed an important point to make, and I'd never considered it -- thank you. While I think background checks should be mandatory on all gun purchases, I would agree that as a citizen, to support the second amendment, gun purchasers should not have to pay for these background checks and licenses entirely themselves.

This is a time when, though it might not be my personal taste, I believe that a portion of taxes should go to either subsidies or the elimination of fees for these sort of checks.

Such a program would ensure that gun owners chip in (through their taxes), and that a portion of everyone's taxes would be used to ensure both safer gun record keeping and the ability of gun ownership & transfers.

I know nobody likes the idea of more taxes, but does this seem an equitable solution? Interested in your opinion.


By the same logic, the idea that in order to give a car to one's teenage child one must go to a government office and get said teenager licensed is also absurd.

Lets not forget that guns are devices whose primary function is to kill things very efficiently. I'd argue that if you're not willing to spend $50-$100 and wait a few days, then you're not treating that kind of transfer of power with the respect it deserves.


Sorry, but you can give a car to anyone. You're not responsible for making sure they are a licensed driver, or that the car is registered. That's the recipient's problem, and as long as they aren't driving the car it's perfectly legal for them not to need either of those things.


Better still, they can even drive the car! Just can't drive it legally on the public roads. But they can drive it all they want on private property. If we treated guns like cars, a 14-year-old could buy as many guns as he wanted with no waiting period and possess them and keep them at home and use them at home and transport them elsewhere and use them freely at a private shooting range or in an emergency.


"Do we really think that some civil liberties are better than others?"

Yes, we do.

This argument raises some interesting points, but it rests on several false equivalencies. The first is that all liberties are equal in weight, impact, those protected and those affected, etc. This is noticeably untrue, even at a passing glance. Consider the First and Third Amendments, for example. Would anyone credibly argue that the right not to have to quarter soldiers in one's home is equal to the rights to protected speech, a free press, and freedom of religion? No. The latter set of rights is much more broad, encompassing, foundational, and frequently relied upon. The former is incredibly specific, and has become less germane over time. Both are protected liberties, but their impact weights are different.

The second false equivalency is that all items written in the Constitution are equivalent in validity, timelessness, applicability, and contextual universality. A piece of paper written in the late 18th century isn't a living, adaptive, self-improving organism. Society is the living, adaptive, self-improving organism. We follow the principles of the Constitution, but we amend it (hence, the purpose of Amendments themselves) as situations arise and circumstances require adaptation. The Constitution is the code; we are the recursively self-improving expression of that code.

Please note: capital-L Liberty should not be conflated with specific liberties. An intelligent and self-improving society makes its best attempt to preserve all liberties under the rubric of Liberty, but recognizes that some liberties conflict with others, and that some have net-beneficial or net-detrimental social outcomes, and that the status thereof fluctuates over time and within specific contexts.


Not to sound like a gun nut, although in some more liberal areas of the country I might qualify as one, how do you propose protecting the other amendments without the right to keep and bear arms?

Whether the gun control legislation possibly violates those rights is a different question, and frankly is pretty silly considering how easy it is to manufacture many of the things that legislation attempts to control.


How to propose to use arms to protect the other amendments? What would you do with a gun to protect us from CISPA?


There's a maxim with many variations, I'll use "soap box, ballet box, jury box, bullet box".

If a government abuses such legislation in a sufficiently intolerable way, and our exercise or attempt to exercise the first three fail, we have not just the right but the duty to use the force of arms to overthrow it.

Well, at least if you believe in the principles expressed in the Declaration of Independence, e.g. "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...."


The British gov't didn't have tanks in 1776. You'll need to start demanding the right to bear nuclear weapons if you want to throw off the U.S. gov't.


Did you know that there are things as anti-tank weapons, or that it's official US Army doctrine that an armored force that attacks a city will get its posterior kicked (they're useful in supporting infantry in urban warfare, and infantry close support is required to keep tanks safe from a lot of the former). And you're betraying more than you realize by focusing on weapons as a proxy for tactics; professionals focus on logistics, and I would hope its relevance in supporting armored forces in this context is obvious.

As it was, I've read about, and am about to read a book that covers this, that after we chased the British out of Boston, when they returned in force and landed in New York we got a most unpleasant surprise from their new mobile artillery forces. We proceeded to lose very badly for quite some time.

As for nuclear weapons, they're only relevant if you expect the government's response to be the nuking of opposition cities. If you think that's likely, you've certainly made the case that our government could get evil enough to require its (very careful) overthrow.


And you're betraying more than you realize by focusing on weapons as a proxy for tactics; professionals focus on logistics

Oh, ok then you shouldn't mind eliminating some types of weapons like assault rifles. Any revolutionary force attempting to throw off a tyrannical U.S. gov't will just use tactics and logistics.

As for nuclear weapons, they're only relevant if you expect the government's response to be the nuking of opposition cities.

Exactly. So nukes should be legal to own just as much as assault rifles. There is no other way to throw off the U.S. gov't. But only crazy people would think nukes should be legal - so that whole throw off the gov't argument is rubbish, and assault rifles won't help there either.

to require its (very careful) overthrow

My point was in fact that there is no such thing as an armed "very careful" overthrow of the U.S. gov't. Such a thing is complete nonsense, like unicorns.


Like the Vietnamese had?


If the Vietnamese were invading the U.S. and about to eliminate the U.S. gov't from existence, they would have been nuked.


The reason why you don't see people try to quarter troops is because of the 3rd amendment. You can't say it doesn't apply to today's society. The reason why today's society adapted to its current form is because it was agreed that it was a very important issue. How is society supposed to self-improve if we dismiss the way we iterate on it?

Try practicing the first amendment without the third. It won't go so well for you. While I accept the argument that some liberties conflict, some also rely on each other. Most all of the first ten amendments are interdependent.

The system as a whole is what brings the stability and net-benefit. Not cherry picking which ones we feel apply the most to the day at hand. You can argue that freedom of speech is important all you like, but it doesn't mean that it stands on its own without others.


"The system as a whole is what brings the stability and net-benefit. Not cherry picking which ones we feel apply the most to the day at hand. You can argue that freedom of speech is important all you like, but it doesn't mean that it stands on its own without others."

You're misreading me.

I'm not arguing for cherrypicking some and dismissing others. I'm arguing that they have different weights. The first amendment is more important than the third, even if they are interdependent. I'm not saying we throw out the third because of that.

[By the same token, I should emphasize that I have not even stated my opinion on the second amendment, let alone called for its revocation.]

I'm simply responding to the author's assertion that all the amendments are equal, therefore, we don't have the moral or intellectual right to accept one without accepting all. That's reductive and fallacious logic.


I guess if I had to restate my point it would be this: We can't determine the equality or value of the Bill of Rights liberties because they are interdependent and it many cases an "apples and oranges" comparison. You can only derive their value as a whole.

Now that said, I do agree that the original post is fallacious. I don't believe it is a take or leave it scenario because as you pointed out, we can rewrite the code to better solve the issues at hand.

It was my bad for overstating the idea of dismissing specific amendments. I did not misread you. I was trying to make the point that highlighting one amendment over another doesn't do you any good. If the first relies on the third, then how can one be more important? Lack of equality does not equal importance.


I don't understand the whole "things were different in the 1800's when they wrote the 2nd amendment" argument. Isn't that why they added the whole Amendment process? The process has been used twenty-something times to great success.

I'm frustrated with people advocating reinterpreting an aspect of the Constitution when they don't have the popular support needed to amend it.


While I am pro gun control, I actually agree with you here: we really should have a constitutional amendment to nullify the second amendment.

One of the big problems with that is that culturally, the first ten amendments are bulletproof. If the second amendment had been "the right to own slaves shall not be abridged", I think we might be in the same position today of creatively reïnterpreting it rather than besmirching something we have unwisely clad in the nominative armor "Bill of Rights".


"I don't understand the whole "things were different in the 1800's when they wrote the 2nd amendment" argument"

That's not the argument I'm making. I think you're misreading me, or perhaps I was not perfectly clear. Let's give the reader the benefit of the doubt and assume it's on me.

"Isn't that why they added the whole Amendment process?"

Yes, and that's part of my point.

I'm not arguing for a reinterpretation of the Constitution. I'm arguing against the idea that everything in the Constitution is of equivalent weight and is equally sacrosanct, unchanged by time and circumstances. Amendments are our remedies to said change, if/when the need arises.

The author's insinuation -- that you have to take everything in the Constitution at equal value, or else you're a hypocrite -- is a false equivalency.


Sorry, I did misinterpret your point. Thanks for being so polite about it. /hat-tip

I agree that the importance and relevance of the Constitution does change over time and I agree that Amendments are the tool to deal with those changes.


"that you have to take everything in the Constitution at equal value, or else you're a hypocrite"

That's not the authors point. The authors point is that you have to take the Constitutions statements as having equal legal force. You are quite entitled to disagree with them to varying degrees, and you are entitled to advocate that the 2nd Amendment should be removed. But you are a hypocrite if you say "The 2nd Amendment is open to interpretation and we can totally ignore it but the 1st or 4th or 14th are sacrosanct".

When you argue that you can ignore the 2nd Amendment because you don't like it, then you've basically tossed out the whole document. Why should the government pay any attention to those inconvenient 4th and 14th amendments when "90%" of citizens support ignoring the 2nd?


Yeah, but things _were_ different in the 1700s when they wrote it. At the time there was no standing army, each state had a militia and citizens were often responsible for providing their own equipment. The 2nd amendment seems to have been aimed mostly at state governments, sort of a "when we need your militia, you'd better have one we can use".

The reading where being armed is a protected right of each individual _is_ a reinterpretation, and a fairly recent one at that. http://backstoryradio.org/straight-shot-guns-in-america-2/ (podcast, but well worth the time) has a wonderful summary of how this view has evolved over the last 2.5 centuries.


>How is it that we can be enraged over a privacy bill that erodes the Fourth Amendment, but completely fine with a gun control bill that erodes the Second Amendment?

Because while just about everybody publicly holds the Constitution up as holy scripture, they really just care about using it to get what they want. I don't care about the right to bear arms. I think it's a dumb, outdated provision that never should have been added in the first place. Speech, privacy, not being forced to incriminate yourself - these are all immensely important rights that every human should have. Owning weapons, on the other hand - what are we, cavemen? And don't tell me that it's so we can fight the government if it ever gets too much out of hand. We're long past that point. Any serious attempt at revolution today would be over in less than a week, the leaders assassinated by unmanned drones.

So I will play lip service to the second amendment insofar as I don't want precedent set that will weaken the parts of the Bill of Rights that are actually important. But don't tell me I'm a hypocrite because I care about privacy and also think that violent criminals shouldn't be able to easily buy guns.


> Any serious attempt at revolution today would be over in less than a week, the leaders assassinated by unmanned drones.

To which I answer, Iraq and Afghanistan. Certainly the insurgencies there would not be considered "successful" revolutions, but they have made the political price of occupation higher, AND forced concessions from the US and local governments.

That said, I don't relish contesting the US Armed Forces violently.

OTOH, fending off a group of small-time thugs is a perfect application for a firearm.


Mistercow's focus on tactics is a mistake; as the saying goes, "... professionals focus on logistics". And while not one of those (poor eyesight kept me out), I can't help but notice that the logistics tail for those drones is all in the US, and of course the pilots flying them. Who have to go home at the end of the day.

As for the US Military, a lot if not most of the scenarios posited have much or most of them on the side of the "revolution", but much more likely a counter-revolution.


Just curious, but why bother fighting a privacy act if you think that the government could not be overthrown in revolution? If the government wants it, they will take it since nothing can stop them.


This is the idea behind checks and balances. The government isn't usually a unified force. The FBI might want to do something like read your email, but Congress can stop them with legislation. If they do it anyway, the courts will decide what's what.

A well functioning government is a framework that fills what would otherwise be a political void with powerful entities pitted against each other so that most of their power is canceled out, allowing the majority to nudge the remainder in whatever direction it sees fit.

But if you try to overthrow the government, suddenly all of that power will be united against you, and you will not stand a chance.


"But if you try to overthrow the government, suddenly all of that power will be united against you, and you will not stand a chance."

What makes you think many parts of this very un-unified government (you didn't even get into federalism including state and local divisions of labor) won't also be on the side of those wishing to overthrow it?


In that case, I don't see how private gun ownership preceding the revolution would be particularly relevant anyway.


Then your imagination is seriously limited.

Let's just look at my home town of Joplin, Missouri, in solidly Red State America. Only a few hundred police for 50K residents; as a hypothetical, what do you think would be the difference between their revolting alone, vs. with thousands of just as well armed civilians? Who's RKBA they strongly support, in words and deeds, I might add.


This is why I left the right-left paradox a long time ago.

Look, either you believe your right to self-ownership, or you don't.

Self-ownership includes the right to protect one's self and property and the right of free speech. These are not mutually exclusive.

Anyways, the way to decrease 80% of 'gun violence' - whatever that is - is to end the war on drugs.


tl;dr: it's hypocritical to support one amendment without supporting all of them completely.


It's unfortunately common to defend the sancticty of the Constitution, rather than recognize it as a means to preserve values of Liberty and Justice for all.


Yeah, this one really got me:

> Do we really think that some civil liberties are better than others?

Yup.


"tl;dr: it's hypocritical to support one amendment without supporting all of them completely."

More specifically without supporting every "constitutional literalist"'s interpretation of them. Because, obviously like any proper religion, there's only one possible interpretation and it's held by the person who has it right. All others are heresy and lies.


That's how I read it. I can't believe someone would call that an argument.


If your argument is that you only support individual items that you "like" in the bill of rights, what is your argument for supporting any of them? Either they all deserve to be defended, or the argument just devolves into "I support that because it might affect me!"


This is crazy talk. There's absolutely no reason the constitution couldn't be right about some things and wrong about others.


But our elected officals are sworn to uphold the constitution, not what they feel is right and wrong about it. If something is wrong, it has to be amended. Until then, it isn't crazy.


Something isn't amended by divine providence; it's amended by enough people opposing it relative to the number that support it. Saying you have to support it until it's amended is crazy talk. Saying you have to abide by it is something else entirely.


And we have a linkbait title of year winner.

Now ... if the Congress has decided that some citizens should not have firearms (felons,people with mental health issues) and that is in compliance with the second amendment then a law that only enables better enforcement of said decision is not eroding said amendment.

CISPA - the cloud should be codified as an extension of one's home. With all the protections that come from it - if the landlord could not voluntarily open the door of a tenant's apartment without court order for a policeman then google should not be able to give my emails to US without one too.


"then a law that only enables better enforcement of said decision is not eroding said amendment"

That's a debatable point, as long as you're willing to consider the prior restraint issue, but the amendments considered yesterday that had a chance of passing* went a lot further than that modest goal, with provisions that were unacceptable to gun owners (details on request).

* That weasel wording because I don't know why Democrats, and only Democrats plus the two independents who caucus with them, voted against Grassley-Cruz-Graham (http://www.senate.gov/legislative/LIS/roll_call_lists/roll_c...). Well, they do have the excuse that it dropped that day and no one had time to see what it really said, but that doesn't seem to be a modern hinderance to voting on laws.


It's also unwise. Anti CISPA types have a lot of natural allies in the Right to Keep and Bear Arms (RKBA) camp, but we've been forced to devote all our political mindshare and effort into beating back the greatest threat we've faced in perhaps a couple of decades. Heck, I only vaguely knew it had come back and was being considered, not that all the House action was happening yesterday with wrap up today, just like the Senate gun-control action on the same days.


Many (most?) countries have nothing like the U.S. second amendment and in most countries (at the very least, members of the OECD), gun violence is NOTHING compared with that of the U.S.

Many (most) citizens of these countries are opposed to any type of CISPA legislation, for very good reasons.

Arguments based on comparisons of amendments of the U.S. constitution are looked upon as very parochial and ignoring very important issues as seen from other countries.


I don't know about you, but I worry a lot more about overall rates of violence vs. "gun violence". Not to mention what denying the right of self-defense does to the balance of power between "citizens" (really subjects) and criminals.

Then we might parse the statistics. E.g. what happens if you grade the US minus the South?


I live in a city, in Canada. I would feel completely safe sleeping with the doors unlocked. I've lived in small villages in Canada where everyone leave their house door and car doors unlocked - and nothing happens. I've lived in Montreal (second largest city in Canada) and felt completely safe walking downtown at midnight - not because I was particularly brave, but because it is safe. I remember visiting Yale and being told "not to go further than a block in that direction as it is not safe".


It's hypocritical to both support and oppose liberty


A contextless and monolithic "Liberty" is one of those dumb polarizing concepts, like "you're with us or you're against us".

It's fine to support "liberty" but to not take into account your subjective understanding, interpretation, and practice of the concept, come on now. Just saying the word does not make society a better place. It's not a magical power phrase.


That's not what hypocritical means.


To clarify, the hypocrisy lies in the fact that the Twitter 'internet activists' are supporting freedom for their kind and to protect their common ground (the Internet), while simultaneously lamenting that the freedoms of another coalition ('mouth-breathing, NRA-card-holding gun nuts') are not further imposed upon.

The Constitution in this case is irrelevant; rather, this boils down to the preservation of individual liberty, regardless of what your beliefs are regarding the 2nd or 4th Amendment rights.


If one purports to serve liberty in any form, and secretly opposes pieces of it, this is hypocritical. If one purports to pursue the best society we can manage, one is not necessarily constrained to making decisions based solely on what they do to liberty - even if you believe that the choice that maximally preserves liberty is always what leads to the best society, in your view the person in question would be mistaken, but not hypocritical.


A comment response I posted on the blog. It could use some more fleshing out, links to support, etc. but I think I captured what I feel. Apologies for the verbosity.

----

I appreciate your viewpoint, but I think you have a simplified idea of the context and history surrounding efforts at gun control legislation.

The Second Amendment reads: "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."

Therefore, I have no problem with people owning as many weapons as they need...in the context of a well-regulated militia. Unfortunately, the Second Amendment has, over a long period of time, been co-opted and transformed from "a well-regulated militia" to "everyone should be able to own an assault rifle". This is, by no coincidence, backed by the NRA, who long ago became less about the rights of gun owners and more about the interests of gun manufacturers. (can't blame them; it's where the money is.) I don't see the type of gun control proposed here as eroding the Second Amendment in any way; however, supporters see any legislation that doesn't make it easier to get any gun as eroding the amendment. It has become a symbol, rather than people considering it in its context. Even strict interpreters of the constitution should find it hard to ignore the phrase "well-regulated militia". And it's not an answer to say "oh, in today's context that would totally mean any citizen who wants a gun."

Outside this context, I see guns for hunting as fine and guns for personal protection as fine, because I think we can agree that removing those would impede upon safety and liberty. However, outside of the context of a well-regulated militia, I fail to see a scenario where a citizen would need an assault-class weapon designed for a theater of war, even in a distressing scenario of personal attack.

Also, background checks are not an invasion of privacy, though that's a convenient claim to make. Whenever someone could impact the lives of others (e.g. teachers, government workers with sensitive information), they are required to undergo a background check. I see no reason to oppose background checks anytime someone is going to own something that could end my life and the main purpose of which is to inflict deadly harm. 89% of Americans agree with me on that, including the majority of both the GOP and the NRA's member base. And yet, the legislation was defeated -- not by a vote, but by the inability to break a standard filibuster practice that now routinely requires 60 votes for a law to pass.

The issue of privacy as a civil liberty and bearing arms as a civil liberty are completely separate amendments, and need to be considered in their separate contexts. The issue of privacy could have been applicable, if the gun legislation contained a national gun registry. There's a legitimate argument to be made there, and it would have made me slightly squeamish too. However, the law specifically did not include such a registry and would not lead to one; even John McCain and several other senators (with A ratings from the NRA) said as much. A misinformation campaign was spread to poison the bill based on fear, and it got the minority riled up, and was just enough to cower the senate.

I do think that an actual hypocrisy exists in this debate, but from a slightly different perspective -- time and time again, the same groups that claim they need guns to protect against the government, also rally to stop the military's budget from being cut in the slightest, claiming it endangers our security (despite the fact that our military budget outpaces the closest 10+ nations combined). The same folks who envision needing a small arsenal to protect themselves against the government are the same people who are totally OK with drones, seemingly without thought that those are the same weapons that would be used by a hostile government against them. Thus, the fantasy lives on -- folks stockpile weapons in a fantasy to play the hero against the tyrant, and at the same time support all the tools of supposed said tyrant. These are not the majority of gun owners, but they number a large portion of those who rally around the ownership of assault and military style weapons for use by civilians.

I understand the inclination to make these sorts of arguments; it's easier to say "it's everyone's fault, really" -- than to get down into it and be drawn in the sometimes vile world of partisan politics. I've been to a shooting range, and I don't demonize those who desire to own guns. But at some point, a reality has to become clear -- people are dying because we're doing nothing. We can argue about what should be done, but when near-universal agreement exists on something as simple as a watered-down background check, and it still can't pass congress, we've gone a little too far my taste.


The supreme court has found that the peoples' right to bear arms has nothing to do with being in a militia. It's the right of the people, not the right of the people in the militia, to bear arms.

> I fail to see a scenario where a citizen would need an assault-class weapon designed for a theater of war, even in a distressing scenario of personal attack.

The guns used in these shootings are most definitely not designed for battle. They may look similar, but functionally they are quite different.


The problem is that the first phrase has been held to be mere preamble, i.e., the goal for the second half of the Amendment. Unfortunately, the way it is written, the first phrase is clearly not a condition of the latter phrase and indeed, many past and present SCOTUS justices interpret the second half as barring any restrictions on gun ownership, including restrictions on felon ownership.

This is why courts have upheld the right to bear arms despite the existence of the National Guard and various other historical lawful militia.


"and indeed, many past and present SCOTUS justices interpret the second half as barring any restrictions on gun ownership, including restrictions on felon ownership."

Name one, let alone a few, who seriously put that forward. No right is absolute, just like the sainted freedom of speech famously doesn't extend to falsely shouting fire in a theater.

I also fail to see how the plain language restricts the first phrase to the goal as opposed to a goal. You think the Founders didn't believe in personal self-defense???


Scalia, Thomas, and Alito have voiced such opinions at some point in their careers. Scalia and Thomas made these comments at various Federalist Society gatherings. It's genuinely scary how they interpret the second amendment.

I should have been clearer: the first phrase, as currently construed, is just a preamble, and as such has no legal weight. It lets us know what the Founders wanted the 2nd Amendment to accomplish, but it places no limitation on the actual grant of rights in the Amendment. That could change in the future with a different balance of justices, but that is unlikely to happen anytime soon.


Could you be a little more specific, and point me as specifics how they were "serious". Serious is District of Columbia v. Heller which Scalia wrote and was joined by the other two. The opinion acknowledged the traditional restrictions on gun possession. (My Google fu wasn't up to the task, e.g. "federalist society" Scalia OR Thomas felons possession gun or firearm, and limited in time to before Heller came out.)

Also, were they talking about the serious traditional felonies, vs. the Three Felonies a Day (http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/...) that as the book description puts it, "The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day." ?

As for the preamble, it was a sop (in modern political terms, a blessed compromise) thrown to those who preferred militias to regulars; they lost that argument in the Constitution (Article I, Section 8: "The Congress shall have Power ... To raise and support Armies...), in large part to the opinions of those like George Washington, who's professional opinion on this had particular weight.

He was again the indispensable man, without his influence the 1787 Constitution would have been a non-starter, but that said, the Bill of Rights was a condition by the Anti-Federalists for accepting it.

And in turn the Federalists were right when they said the Bill of Rights would just end up establishing high maximums to Federal power, as you acknowledge in your last sentence.


Err no.




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