A Liberal Case for Gun Rights Sways Judiciary
 

http://www.nytimes.com/2007/05/06/us...pagewanted=all


Nice to see someone with a brain working on this.

As opposed to the opponents who don't have brains?

There's plenty of brainless ones on both sides of the issue.

Agreed

Reading this for the umpteen thousandth time I've have a new thought.

The bill of rights was written to convince the people they could live with this government without being afraid of it.... it would not oppress them. Are they saying, Hey, the states must have a government force (militia) for security, but you can have guns too, so you don't have to fear that force?

I never thought of it that way before.

So the people might be scared of the people? Is that what you mean?

I'm not scared of the people, and remember this was written in the 1700s.

Yes, but I'm just trying to understand what your new thought was. Was it so that the people could defend themselves from the militia (being made up of the people) if they felt the need to?

Yes, exactly. They didn't trust any authority and the bill of rights was to assuage those fears. Militia is made up of some of the people

By the way, 2005, US population = 296,410,404, victims of all violent crime = 1,390,695. that's why I'm not scared.

That's a lot of people. We only have about 20 000 000 in our whole country.

That's the 2005 number it's well over 300,000,000 now.
20,000,000? We have almost that many illegals.

Well, a bit over half that many, at circa 11,000,000.

Aliantha, the history of the capital-M Militia's legal status in the States, through several Federal-level acts about it, pretty much is as the George Mason (a Founding Father) set it forth: that the militia is the whole of the people, less certain officers. The prominent exceptions being judiciary, certain federal employees like customs officers, and serving members of the armed forces IIRC. And after leaving these posts or positions, the persons revert to being militia. Current US law describes such persons as the Unorganized Militia (USC Title 10, Sec's 310-311). Militia Acts specifically refer to the male population, but present law would likely be read to cover female volunteers also, should any legal question arise. It does not contain any coercive feature either; activity in the unorganized militia at any rate is a volunteer proposition, and I think largely it has always been, though reference to conscripting militia personnel for national service may be found. This seems to me to move the conscripts in question from the militia to the Regular Army.

The National Guard is not quite legally the same as the Unorganized Militia, despite being sometimes spoken of as militia, having its legal origin in the Federal power to raise armies.

A quote:

Drawn from here.

Thanks UG.

Looking at B. (a), I wonder if it could be argued that because the wording states 'males' women have no right to be 'armed' under that law.

No, it means they can't serve in the militia, that's all.

But isn't the basis of pro gun lobyists' argument that they need to be armed BECAUSE they need to provide for a militia?

No, it's because the 2nd amendment says so.

Yeah well, it seems to me that it comes down to an argument about semantics then.

You have the second amendment which says you have the right to bear arms and the amendment was made because the people realized the need for a militia. It's just a circular point from the outside looking in.

What I mean is, the two are tied up together and form part of the same argument because it's unlikely you'd have one if it weren't for the other. Each point supports the other.

Why it was written is a moot point. Only what it says counts.

Do you really believe that?

Fuckin A right I do... about the entire Constitution. It's the foundation of our country and our way of life.

So you don't care why it was written, just that it was?

Because it doesn't matter. All history of this continent prior to the Constitution being written, is just that, history. It could be lost forever and it would have no effect on us...it wouldn't change the Constitution.

It's because of history that your world is as it is today, so in my opinion, it's very relevant. Incidents and actions prior to your constitution being written certainly would have contributed to its contents.

I'm just really surprised that you hold such a view Bruce.

Sure they did, but that's just interesting history. It doesn't change what was written, and that's what we live by.

But what was written is changed and modified constantly, hence the ammendments.

Anyway, I still think that line I mentioned taken in a literal sense, precludes women from bearing arms because as I said, you have the right bear arms because of the second ammendment which was made so the people could have a militia. :)

But the history before the writing of the original document have no bearing on the amendments that have been made since then. Keep in mind, the Bill of Rights which is the first 10 amendments, were not changes, they were part of the original document as adopted by the people.

Aliantha, it's less a circular argument than an inextricable intertwining of every relevant factor.

Women with guns can, for instance, deflate rapists more effectually than women with anything else, period. Even a Doberman might be in the back yard. And even those who fret, "isn't it awful for a woman to have to shoot somebody at whites-of-the-eyes range?" seem remarkably forgetful about how awful it might be to have to get raped, with or without subsequent murder by any of an assortment of up close and personal methods -- rather seldom, in fact, do the rapist-murderers back off and shoot. You hear about them strangling, or stabbing, or bludgeoning.

This cognitive disconnect is one thing that persuades the pro-gun people that the antigun people are completely out of their minds.

The idea of a national militia as a national defense wasn't really very successfully implemented in the United States. Switzerland's military seems a better try at it -- and this has not been tested in any conflict, let alone a outrance. It seems that militia powers of the citizen have their greatest effect in police matters rather than general war. Certainly this is their usual venue.

The point was this UG.

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and . . .

My question was, does this above line preclude women?

So far no one has answered.

I'm really not interested in the whole gun debate...again...ad nauseum...etc etc etc...

That line precludes women from belonging to the militia.
The second amendment does not say you have to belong to the militia to own a gun.
Women were not precluded from owning guns.
Women are not now precluded from owning guns.

We've not answered because we're not certain, not legally anyway. There's been no firm legal precedent.

One of the Acts I quoted puts National Guard women in among the militia -- but not National Guard men. The National Guard is the US Army's and Air Force's reserve component. The US Navy has something quite the same, which they call the Naval Reserves.

Both the structure of the armed forces and womens rights have changed considerably in 200 years.

For that matter, so has the destructive power of handheld weaponry.

This was the point I was getting at. People use the militia argument like it's the be all and end all of the subject, but it's not because there's really no clear definition as to who should actually be in a militia except to say that you have to be male and over 17. Oh hang on, that's a pretty clear definition, cept it doesn't mention that you have to be of sound mind or anything important like that.

If you can't defend the words as they're written, then surely you can't use the argument, regardless of the fact that the culture of American society has changed somewhat during the last 200 yrs or not. For example, let's suppose a dictator somehow came into power (hmmm or is in power) and decided to enforce that act as written because he had an adjenda that was sexist. Where would all the "I stand by our constitution because it's for the good of the country" people be then? Would you think it's worth changing or would you just say, "well that's what it says, so get back in the kitchen you women".

I also don't buy the argument about it being a free country. If it were free, people living there wouldn't be feeling oppressed. It's free for some.

I don't buy UGs line of reasoning on the second amendment. I don't think its a popular opinion.

Which as we progunners never tire of pointing out, and which certain fatuists equally refuse to hear, the principle the Second Amendment supports is that the citizenry were to be trusted with being armed at least comparably to the best equipped armies of the time. Being a principle, it has the property of remaining unchanged with time. Single shot or repeater, fixed cartridge or no, it really doesn't change much when all parties possess them. It's when there is a great disparity that you run into trouble.

I'm not greatly troubled by the fatuists as long as their numbers can be kept minuscule and their notions laughed at by people more sensible (more anti-crime, etc.) than they.

In the 19th century, the government did start regulating crew-served artillery more closely.

In this Republic, as I've said before, the ultimate political power source is the people, the electorate. The electorate's total power is broadcast throughout its numbers, equally portioned out -- dilute, if you like. If any republic reduce the power of the electorate over public matters, it is on the road to becoming something not a republic -- a dictatorship or an oligarchy, and there goes legitimacy by the board. The citizen militia comes in as both a repository and a stronghold of the electorate's power, and makes the staffers of the government -- most of whom are also militia themselves, which seems fair enough -- accountable to the electorate for their actions with their lives and/or livelihoods. With the electorate armed, there is force available. Here is a most effectual check and balance on the State's insensate power. Power in politics is ultimately force, and we consider that the use of such coercive function, such force, be carefully hedged about with safeguards -- including a counterforce, however amorphous, however nebulous -- it's still there.

Against this desire to keep power in check, and what gives us problems both in the old times and now, is that work in the government always will attract those with a cast of mind to rule -- to exert force. Bureaucracy and the state being what they are, this habit of force tends to concentrate and increase, at least slowly, from generation to generation.

Founding father Thomas Jefferson (the President on the rarely seen US $2 bill) foresaw this. About the only solution to it he could see was to have more or less periodic revolutions -- to reset things, as it were. We American libertarians hope, though I don't think we exactly see how, to accomplish similar results by downsizing all government apparatus, at all levels, across the board. Federal-level bureaucracy gets the most attention on this score -- we'd like to reverse what we think Franklin D. Roosevelt did too much of.

Bruce: and the Militia Acts have changed also with time. Note they dropped specification on arms and equipment, such as the Act of 1792 laid out.

Anything available to the military should be available to civilians? Including nukes?

Yes, what I was saying is I don't subscribe to the notion that the second amendment says the people can bear arms to make them available for the militia. That would preclude anyone not eligible for Militia duty, which is not the case. Every 13/14 year old boy was familiar with guns and many if not most had the use of one at will, if not their own. The majority of rural women were familiar too.

Mhm.

I don't subscribe to that notion either, having learned that the 2nd's language does not grant the right to keep and bear arms, but acknowledges that the right inheres in being a human (falls in line with John Locke -- on second thought, in line with Thomas Hobbes), and rather incidentally and in part, a citizen.

And somebody predictably always tries to slippery-slope me on this point. Wearisome, really, in its rhetorical transparency. Nobody ever comes up with something original.

In actual real-world effect, this means sidearms. Selective fire should not be forbidden, as indeed it is not, merely restricted to what I think is an undue degree.

I draw the line at nuclear weapons. Now somewhere on the other side of the line would be my neighbor having a surface-to-air missile battery all his own. I don't have a problem with that unless he tries taking my roof off with it. He's quite crossed the line then.

The reason I draw the line is rather a philosophical one: many weapons may be used as designed and intended in a moral manner. Point weapons, with a small area of effect, may be used, even lethally, in a moral manner. By contrast, a nuclear weapon is an area weapon. It is exceedingly hard to make use of a nuclear weapon as designed and intended in a fully moral manner. At best, look at the pollution problems you get. Not good, is it?

This consideration is also why the fliers of old warbird bombers and fighter planes aren't allowed to drop ordnance, either inert or simulated. Conking the innocent isn't good.

That's because it's a stupid point to try to make. You said that citizens should be able to be armed comparably to the best-equipped militaries. That includes everything from nukes, to MOABs, to conventional missiles, to warships, to fighter jets, down to the handheld weapons. Your claim was that it doesn't matter that newer weapons are more powerful as long as all parties possess them.
That's the distinction that xoxoxoBruce made a while back- handheld weapons that you can "bear" rather than "operate" (Which is why I made the point that the destructive power of handheld weapons is always increasing). Of sourse, SAMs don't realy meet this distinction.So private ownership of missiles would be OK, as long as they aren't nuclear.
How big of an area is too big? Conventional missiles and bombs are also area effect weapons.

There's nothing in the second amendment separating area-effect weapons from point weapons, so it looks to me like you decided that there is a level of destructive power that, outside of the wording of the Constitution, would not be safe to leave in the hands of civilians. I contend that almost everyone makes that decision, and the only disagreement is what that power level is. High-minded pronouncements about principles unchanged by time fall flat.

Well, those disposed to deny the principle in question will claim they fall flat. Neither I nor the philosophers I read are so inclined.

Here's a philosophical point to consider: while the firepower(s) controlled by States have become greatly magnified over the centuries, should they be kept so disproportionate to the firepower(s) in private hands, or should a nearer approach to parity be the guiding idea instead?

(A) We have a philosophical position.
(B) We have a legal/Constitutional position.
(C) We have a practical position.

When losing ground on the (A) jump to (B) or (C).
Getting beat up in (B)? Jump to (A) or (C).
Dead end in (C)? Drag out (A) or (B).

I'd rate them (B), (C) then (A), in order of importance, but I'll bet many people don't agree. In any case, how can you reach agreement, when they are sometimes conflicting, without establishing a pecking order?

B is all that matters.

No, you're so inclined. You sacrificed the principle when it came to nukes. The practical results of upholding the principle changed over time with the advance of technology. A weapon was invented that cannot be safely left in unsupervised hands. The argument is no longer that people should be allowed to own any weapon; it is now that people should be allowed to own the most powerful weapons that it is safe to allow, and any disagreement is over the safety level.

:2cents:

Own all the muskets you want.

But you need A and C to get to desired B.

People are idiots.

Partly true, HM. But consider also Ringer's Paradox: A freedom restricted is a freedom preserved. No shouting "Fire!" in a crowded theater, et cetera.

Absolutely!



:unsure:

Wait a second. Aren't you a...

and so am I!

Yup, and sometimes I'm an idiot... but I separate personal crap from Constitutional matters.
I am personally against abortion, I think it is morally reprehinsible... I am politically pro-choice and have been my entire life. It is very difficult, it takes a lot out of me to deal with people who are actually pro-choice (if you know what I mean)... but it is morally correct for the nation. I know that seems confusing, but makes my point better than anything else I could think of.
I know people, like my wife, who REALLY dislike guns, yet FULLY supports the second amendment and the right to own and carry handguns.

Unless you have a cannon.

If you use the cannon (and the wadding does for the theater what it did for the original London Globe Theatre), they're not going to hear you shouting anyway...

Hello, Mr. Tchaikovsky, right this way please.

IIRC it was a production of Henry V -- with artillery effects. Smouldering wadding got lodged in an overhanging eave, lit it up, and the whole place burned down.

"I wasn't this hot under the collar until I came to France!!"

I've been lit-up a few times with wadding from fx guns, one time in the eye. Clothes on fire is not unusual.