The Second Amendment means exactly what it says. - Jay Maynard

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Wednesday, 14 July 2004


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2206 - The Second Amendment means exactly what it says.

I've commented on this now in two separate entries, so it's time to make one specifically on the topic and concentrate comments here.

Let's look at the Second Amendment:

"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."

I believe that this text means exactly what it says: that the right of the people to keep and bear arms shall not be infringed. That means that the people - as in the First and Fourth Amendments, the citizenry of the United States as a whole, and as individuals - have the right to arm themselves as they see fit, and to carry those arms with them in their lawful pursuits.

Many folks point to the words "well-regulated militia" and say "the National Guard is all that means!". There are three problems with this:

1) "Well-regulated", when the Bill of Rights was drafted, did not carry the meaning it does today of "controlled by specific written rules with the force of law". That meaning of "regulation" is definitely a 20th-century creation, and quite probably post-1950. In the late 1700s, that term meant "well-equipped and well-trained".

2) "Militia" means "everyone able to hold and use a gun". (Yes, the Founding Fathers limited that to men, but I would advocate opening it up to every citizen, male or female.) This is not just supported by the words of the Founding Fathers, but is written into current US law: every male between 17 and 45 who is, or has declared his intention to become, a US citizen is a member of the militia. See 10 USC 311.

3) A basic legal principle is that a term means the same thing wherever it is used in a document. "The people", as used in the First and Fourth Amendments, clearly recognizes an individual right; for it to recognize a collective right in the Second Amendment violates that principle. Conversely, for it to convey a collective right in the First Amendment would recognize the right of the government to have freedom of speech, the press, and religion, and the Fourth Amendment would recognize the right of the government to be free of unreasonable search and seizure by the government - both, plainly silly.

Another argument from those who would deny the plain meaning of the Second Amendment is "but that would allow anyone to have nuclear weapons!". To which I reply: Yeah...so what? Using them would still be murder except in very unusual circumstances. In the early days of the US, the Second Amendment was understood to allow anyone to have any military weapon they could afford and use. There are several records of privately-owned warships and cannon from those days.

The Supreme Court has also recognized this argument: in their ruling upholding the law banning sawed-off shotguns in the 1930s, they held that, since they were not weapons of military utility, they did not fall under the Second Amendment's protection. (They held so incorrectly: sawed-off shotguns were a favorite of troops fighting close-quarters actions, even through Vietnam, and, I believe, are still in the US military inventory. The reason they ruled as they did was that the plaintiff had died between the filing of his appeal and the oral arguments, and nobody argued for the appeal.)

Basic rights are often problematical. I will certainly grant that there are people that feel nervous that their neighbor might be armed. Many of them were quite vociferous in this during the debate over the Minnesota Personal Protection Act, and in the wake of its passage. They conveniently ignored that the bad guys - criminals who, by definition, ignore the law - were already armed, and the only people who would go through the training and permitting process would be the law-abiding citizens who would otherwise go unarmed. Those are not the people one need worry about.

I'm not the first to travel this path. Professor Sanford Levinson of the University of Texas School of Law, a leading legal light of the ACLU who is by his own admission no friend of the Second Amendment, nevertheless concluded that it does mean exactly what it says, and recognizes an individual right. His paper on the subject, The Embarrassing Second Amendment, should be required reading for anyone wading into the discussion.

current mood: [mood icon] determined

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Comments:


From:epitath
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One of the problematic portions of the 10 USC 311 is simply put, the original intention of the Founding Fathers was that "being necessary to the security of a free state" was to mean a free state, not meaning the United States, but to every State of the Union...meaning that militias were to be formed within each and every individual state...This should have never been brought into regulation of US CODE LEGISLATION...
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From:jmaynard
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I'm usually uncomfortable with federal infringements on states' rights (unless it's in defense of a basic Constitutional right), but this one doesn't bother me. 10 USC 311 simply says that everyone's in the militia. It says nothing about how that militia is to be organized or used. it also, as noted, merely codifies something that the Founding Fathers thought was obvious.
From:epitath
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But doesn't the idea of a centralized government bother you? This is exactly why this is problematic and was one of the reasons why the founding fathers had specifically chosen the wording that they did. As for the reasons that the militia was to be under control of each state of the union is should be quite clear. The centralized militia would obviously be under the direct control of the federal authorities. This means that you're giving undue power over the militia into the hands of someone who could use this body of men as a dictatorial powerbase.

Tell me, if everyone is in the militia, then where does the code deal with felons and their ability to arm themselves that is contrary to other parts of the US CODE????
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From:jmaynard
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The counterbalance to the problem of dictatorial control is that the members of a militia would rebel - and be prepared to do so, at least in materiel and in the fact that they were under arms - should an attempt be made to use them for the purpose of furthering that control. This is one reason that the Founding Fathers favored militias over standing armies.

I believe that 10 USC 504's blanket prohibition on enlisting felons would apply here, but I agree that it could be worded better to apply to the militia.
From:epitath
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It's an interesting aside to consider the political air of the time in which the Foundign Fathers wrote the US Constitution and the Declaration of Independence. Most people would be shocked to realize that the men involved would be considered terrorists and anarchists in today's society due to their points of view. I know that sounds far fetched, but it is in fact the truth. If the founding fathers saw the political scene in the US today, they'd look at George Bush and look back upon another George they knew and compare them.
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From:jmaynard
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I don't know that any contemporary president would compare with the Founding Fathers. Some come closer than others; I believe that Ronald Reagan and Dwight Eisenhower would come off fairly well, while others, such as Jimmy Carter and Bill Clinton, would have them reaching for their rifles.

OTOH, the situation has changed since 1790. Whether we like it or not (and the Founding Fathers would not have liked it a bit), we are a world power, and the requirements for that job differ from those of the job of getting a fledgling country up and running.
From:epitath
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With this being true pretty much across the board, the militia preparation rather than a standing Army budget is preferable...especially seeing the way that the US Armed Forces handle urban warfare. The US military would have been better served in Iraq by the 1700's minute men with modern ballistics weapons than the miltary is today...
From:epitath
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The fact that the United States is a world power shows that the model laid down by the Founding Fathers wasn't followed...
From:epitath
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The United States would have been better served as far as it's public interest by remaining a more internal economic block...
From:epitath
Date: - 0000
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I'd think that the idea of a militia would certainly be to the benefit of the United States. If the militia standard had held, a war like the one in Iraq, that ended up as urban warfare would be much better suited to the persons of a militia rather than that of a standing army. Standing armies have a distinct disadvantage on the streets of some city fighting a civilian populace. Over and over the United States has proven themselves unfit for urban combat. This is the very reason that the Iraqi army fell back into the civilian populace and donned civilian clothing...
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From:peterchayward
Date: - 0000
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"Another argument from those who would deny the plain meaning of the Second Amendment is "but that would allow anyone to have nuclear weapons!". To which I reply: Yeah...so what? Using them would still be murder except in very unusual circumstances."

So let me get this straight...you're in favour of people having weapons that they can use for murder and little else? Therefore, the only point of having the weapon is for murder. You're saying that we should freely give people the ability to murder, and the only thing stopping them is the fact that they shouldn't (the same fact which every day, stops millions of people from taking drugs, stealing etc.)
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From:jmaynard
Date: - 0000
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No, the only point of having the weapon is to defend oneself and one's country, at least for law-abiding citizens. In practice, I strongly doubt that anyone would go to the considerable trouble and expense to acquire and maintain one.

Don't forget that those who would use it only for murder aren't going to be stopped by minor details like it being illegal.
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From:foolscap001
Date: - 0000

People have the ability to murder anyway...

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...guns or no guns. If you wish to forbid people anything that can be used to kill, that's going to be a pretty long list. Guess we'll just have to trust people much of the time.

In any case--your argument fails because an offensive weapon can be used to defend by the threat of its use, so your initial premise is false.
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From:jmaynard
Date: - 0000

Re: People have the ability to murder anyway...

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Indeed, that is the basis on which our national defense of the late 20th century was founded. After the first two uses, we never again had to use one. Merely having them was enough.
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From:peterchayward
Date: - 0000

Re: People have the ability to murder anyway...

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I agree with the "threat of its use" part; I didn't consider that.

However, "people are going to murder no matter what" is irrelevant- my argument is that they shouldn't own a weapon that can /only/ be used to murder. Other objects, such as knives, can be used for food preperation. Guns, however, can't be used for other things like that...their sole point is to kill (and, as you said, threaten to kill).
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From:jmaynard
Date: - 0000

Re: People have the ability to murder anyway...

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I own, at last count, five firearms. Not a single one of them has ever been used to murder, or even threaten, anyone. They have all been used, some more than others.

One thing that those who have never done any shooting (and I infer from the fact that you're in Australia that you're among them) don't realize is that, done properly, it is a martial art as much as the Oriental styles of unarmed combat that are more commonly associated with the term. It requires the same focus, the same discipline, and the same mental approach. It also has the same mental benefits: I find that I am quite relaxed and refreshed after a session at the range, in the same way that those who practice the other martial arts report being after a session at the dojo.

No, the sole point of a gun is not to kill. That purpose is entirely assigned to it by the user, just as the purpose of any tool is assigned by its user. The problem is not the tool, but the hand that holds it.
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From:peterchayward
Date: - 0000

Re: People have the ability to murder anyway...

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One thing that those who have never been shot at (and, from the fact that I'm in Australia, I'm happy to list myself among them) is that, even done amateurishly, the primary purpose of a gun is to kill.

To be able to kill with martial arts, you have to have done years of training. To kill with a gun, you pick it up, point, and pull the trigger. And, as it happens, I have actually fired a weapon before.

But let's take Nuclear weapons as you listed as an example before- are you saying that, done properly, the use of nuclear weapons is an art form?

Accidental death- accidental, not just those people who want to kill others- by firearms was the 6th highest cause of death in America in 1999, causing 1 500 deaths. Remind me again how many accidental deaths were caused by martial arts in that year?

I mean, really. Your second ammendment says that if a man who had managed to kill 200 men with a gun and gotten off on a technicality wanted to buy a gun, he's free to. A man who has a sign "Once I get my gun, I'm going to kill as many people as I can" can legally get a gun.

I'd write more, but I've got to leave. I'd just like to finish by saying that ever since I heard about "The Tron guy", I've been a huge fan of yours, and when I heard you had a livejournal, it was the highlight of my day. Even though we disagree on this issue, I remain a fan Mr. Tron Guy.
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From:jmaynard
Date: - 0000

Re: People have the ability to murder anyway...

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No, the primary purpose of a gun is to place a projectile (usually some combination of lead and copper, but other materials are used) accurately some distance away with some amount of energy still remaining. What the user intends for that projectile to do, be it punch a hole in a piece of paper or in the head of a bad guy, is entirely up to the user.

The primary purpose of a knife is to cut. Whether the user intends to cut an onion into little bitty pieces or to cut the throat of an infidel is, again, entirely up to the user.

Accidental death from firearms accounted for only 0.8 percent of all accidental deaths. Ahead of them on the list are motor vehicles (43%), falls (13%), poisoning (13%), suffocation (6%), drowning (3%), fires (3%), medical mistakes (3%), and environmental factors (2%). It's particularly hypocritical for doctors' organizations to be calling for gun bans when they account for many more accidental deaths - by one physicians' study, over 44,000 per year, compared to 776 accidental firearms deaths in all of 2000 in the US (and only 86 children) - than firearms. (No, those numbers don't jibe; I suspect the number of physician-related accidental deaths was based on a study using broader criteria.)

The accidental death rate from firearms is at an all-time low, at 0.3 per 100,000 population per year - down 92% from the peak in 1904. The rate has declined in every year since 1930. In those years, the rate has decreased 76%, while the population has more than doubled and the number of guns has quintupled.

Nobody I know - and certainly not the much-demonized NRA - advocates allowing convicted felons or those with severe mental illnesses to own firearms. US law provides that many civil rights are forfeited by those convicted of a felony, and the right to own firearms is among those. There are over 20,000 laws on the books in the US and its states dealing with firearms, many of them dealing specifically with penalties for felons who possess firearms or use them in a crime. Those laws are woefully underenforced. Even though the 1994 Crime Law (the one with the ban on ugly guns, otherwise known as the so-called "assault weapon" ban) makes it a crime for a convicted felon to attempt to obtain a gun, over 4000 did just that - and not one was prosecuted.

On the other hand, innocent until proven guilty is a bedrock of US law. That man who'd gotten off on a technicality is, under the law, considered as innocent as if he'd never done anything wrong, because unless he was properly convicted, he didn't. The man with the sign is exercising his freedom of speech, and that's not a criminal act either. (Although I wouldn't be surprised if he was unable to buy a gun, since firearms dealers and law-abiding firearms owners are under no obligation to sell to anyone; were he able to, I wouldn't be surprised if he didn't attract the attention of the police to ensure he did not carry out his threat.)

Freedom can be a real bitch - but it's a lot better than the alternatives.

--

Thanks for the last bit. I believe in separating the person from his beliefs. The nicest guys in the world can nevertheless harbor some truly silly notions; that makes them no less of a nice guy. The worst bastards in the world can, nevertheless, be right on some issues; that makes them no less bastards. Larry Niven said it most succinctly: "Ideas are not responsible for those who hold them." The converse is just as true.
From:jmthane
Date: - 0000
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From:jmaynard
Date: - 0000
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See? Nobody's right all of the time, and nobody's wrong all of the time. :-)
From:jmthane
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From:epitath
Date: - 0000
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Gun control is a fallacy...as a matter of fact, gun control should be referred to as Despotic control of the populace.

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