The Renewed 2nd Amendment

Monday, March 02, 2009

This is my third and final installment in a series of blog entries on guns and the second amendment. I promise no more, for the foreseeable future. I was planning on blogging about how the anti-gun movement has lost some steam since the Heller decision and wanted to discuss some aspects of that. I was in the middle of writing a response to Andy's comment on the previous entry, when I decided to include it in this post.

As is evident by the responses on this blog, I think the gun rights movement owes a fair amount to the intellectual honesty of most liberals. An article called, Liberals, Guns, and the Constitution makes this point very well. I wrote a paper on the 2nd Amendment for a Con Law seminar 4 or so years ago. The collective rights theory was definitely in the minority, but there were some prominent advocates. This isn't the case any more and that position seems to be on its way to history books and out of public policy and modern scholarship. The article mentions an excellent article by Sanford Levinson, called The Embarrassing Second Amendment. Levinson is, by no definition, a conservative.

I don't think this means that we are about to see AK47's being given to children on every corner, but I am hoping that we can see a more reasoned discussion. I would also like to see the laws regarding guns to respect liberty and the Constitution and protect rights while also ensuring the safety of the public.

Andy raised many points in his response to my previous post. I thought it should be included here, since it touches a great deal on rights:

I don't understand why anyone needs to own an assault weapon unless they are in the military.

This goes back to my original point. Individual liberties are not subject to the individual first demonstrating a need. This is just not the way it is done in a free society. Never has and never should be. I can think of a variety of reasons...some compelling, some not compelling. This makes no difference.

Can't use them for hunting.

The 2nd Amendment has absolutely nothing to do with hunting. It isn't mentioned anywhere in the Constitution, nor is it mentioned in any commentary published it at that time. I doesn't appear anywhere in the Federalist papers. As much as I enjoy hunting, I understand that the legislature can regulate it in any way it wants, including an outright ban.

Hand guns or even semi-automatics will do for burglars and protection.

I am confused here. An "assault rifle", as defined by the AWB, is a semi-auto. If you are thinking machine gun, they are already highly regulated and out of reach of most people, in terms of how much they cost. What do you think and assault rifle is?

All things are basic rights, but Congress has the right to decide what the basic rights are.

No.they.don't.

All things aren't basic rights. The Bill of Rights lists certain rights, but fundamental rights don't owe their existence to the gov't, they are inherent to a free people. A religious person would say they come from God. A non-religious person would say they are inherent to all humans by our nature.

The gov't certainly has the ability to pass laws and regulate a variety of acts, but they cannot infinge upon basic liberties except for rare circumstances and under very narrow means.

I think the 2nd amendment allows for freedom to bear arms, but not the freedom to bear assault weapons.

I think the 1st Amendment allows for media outlets to publish unpopular views, but unless you are an employee of them, people should be arrested for speaking out against the government. This is a silly example, but you are saying the same thing. An assault weapon is an 'arm'.

The Brady bill was put in to ensure safety of the people.

1. It didn't lower crime or improve safety. There have been several studies that have proven this.

2. We need to be careful as to what we do in the name of safety. Some Asian country (IIRC, North Korea) instituted a curfew for everyone which had the effect of dramatically lowering crime. Do you think this is a good idea. I can guarantee if we allowed warrantless, random searches, we would catch many criminals and seize a great deal of contraband. Should we negate the 4th Amendment.

I think that it should be re-enacted. So do most Americans

Irrelevent, if we are talking about a fundamental liberty.

It only expired because the radical right in Congress let it.

This not how I remembered it. There was certainly support amond anti-gun groups and some in Congress, but most were content to let it die.

And there was an uproar.

More like a whimper.

13 comments:

Smitty 4:19 PM  

As steves pointed out a few posts ago, "need" is not a test for a liberty or right. We just get them, ridiculous or not.

I don't need to type "DEATH TO AMERIKKA!!!" But I can. I don't need an AR-15 or Cold War-era AK-47, but I can own one. Mrs. Smitty or my buddy LaDron don't need to vote, but they can (and should, but should is different than need or can).

Our constitutional rights are maybe thought-up by Congress, hisotrically true on some (but not all) occasions, but they have to pass a majority in Congress and have to be ratified by each states' legislature (or con con). That's a whole lot of "the people" getting to decide what their rights are, and I am glad for that, because if it were up to a Bush II-era Congress, we'd have all sorts of Terry Schiavo-based constitutional rights. (Here is how you amend the Constitution...no small task, and has very little to do with Congress)

The Brady Bill was another knee-jerk legislative over-reaction to a Secret Service guy getting shot in the head. Tragic, debilitating, and all of the other negative emotions that apply to it are certainly fair and true, but Andy knows as well as anyone, being a legislator of sorts himself, the tendency of legislatures to enact laws via emotional response; just look at how many new felonies are enacted in October of an even-numbered year. Bills in search of a problem...etc.

One more point about "public safety" restrictions on our constitutional rights, and then I'll quit: a book called "Perilous Times,Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism" by Geoffrey Stone. The overarching theme of this book, as I understood it to be when I read it, was that when we restrict a freedom, or, right in th name of safety, when we come to our collective senses and re-libertize that right, it never quite comes back as robust as it once was. This book, obviously, focuses on the 1st Amendment speech freedom but the idea of the book is universally applicable. In many times in our history we have in some way ,limited a freedom, and in every case it has been a slippery-slope, leading to further restrictions on other rights (since a precedent is established), and weaker rights altogether when the short-sighted public safety measures are finally lifted.

Bob 4:28 PM  

"I don't understand why anyone needs to own an assault weapon unless they are in the military."

This goes back to my original point. Individual liberties are not subject to the individual first demonstrating a need.


I thought Steve's response to Andy was pretty compelling, but then I thought, government does regulate speech. You cannot yell fire in a crowded room. Couldn't they also regulate the type of arm you have? Statute doesn’t allow the average person to own a howitzer either, so at some point someone drew the line. It seems to me pro-gun groups draw the line at howitzer, where gun control groups are drawing the line at machine guns. They are both drawing lines, so there IS regulation taking place.

Bob 4:30 PM  

...or my buddy LaDron don't need to vote, but they can (and should, but should is different than need or can).

Is Smitty playing the race card?

steves 4:33 PM  

I'll have to check out that book Smitty, do you still have it? The Sedition Acts were terrible pieces of legislation. I'd like to think if they were passed now that the Courts would smack them down pretty fast.

As for public safety, I am reminded of Franklin's quote:

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.

steves 4:44 PM  

Bob, I have never argued that it is an absolute right. What I am arguing is for a level of scrutiny for gun laws that is the same as what it is for 1st, 4th, and other parts of the BOR. Gov't can regulate speech, though they it has to be very narrow and there has to be a compelling governmental interest.

As a point of clarification, the AWB of the 90's and the one that Holder is discussing have nothing to do with machine guns. Machine guns have been regulated by the NFA of 1934 and the FOPA of 1986. It is very difficult to purchase one.

In a nutshell, you have to get approval from the BATFE. You submit a fee, copies of your fingerprints and the required forms. Then you wait anywhere from 6 to 9 months and they send you a special stamp that you can use to purchase a specific gun. Since the supply is fixed, the cost is high. An M-16 will run yuo about $15,000. If you want a 30's era Thompson, expect to pay around $30,000. A POS Mac-10 will run 4 or 5 grand. Get the picture. FWIW, there have been numerous studies done on NFA guns and no one has been able to trace any of these guns to a murder in the last 80 or so years, so this is not a very dangerous group.

The guns covered by the AWB are semi-automatic.

I did some reading up on the Mexican drug violence problem and found many references to things like machine guns and RPG's. These are not found in any gun store and most experts believe they cartels are stealing them or buying them from the Mexican Army.

Mike 7:22 AM  

All things are basic rights, but Congress has the right to decide what the basic rights are.

No.they.don't.

All things aren't basic rights. The Bill of Rights lists certain rights, but fundamental rights don't owe their existence to the gov't, they are inherent to a free people. A religious person would say they come from God. A non-religious person would say they are inherent to all humans by our nature.

The gov't certainly has the ability to pass laws and regulate a variety of acts, but they cannot infinge upon basic liberties except for rare circumstances and under very narrow means.


Well-said, Steve. The Constitution -- which established Congress -- was based on the notion that we all possess inherent rights. And by contract, we the people allow government to exist, to monitor certain highly circumscribed areas of life. And nothing more.

Article I of the Constitution lays out exactly what Congress can do. "Determine people's rights" is not one of those powers.

And then the Bill of Rights lays out clearly what Congress cannot do. And take away peoples arms is the second right listed.

Smitty 2:28 PM  

I read some of the judges' comments in the recent case and what really struck me as the "death" of the collective rights theory is that in the 1st amendment, "the people" are identified as having an individual right to speech, assembly and religion. But then 16 words later, "the People" is collective. 46 words later "the people" is individual again. And in the 10th amendment "the people" and "states" are treated seperately. Did the framers intend for the 2nd amendment to stand alone? Doubtful, especially gien that the constitution separates the people, as individuals, from the State as a collective. Hard to argue that, especially when of all rights, being a blogger, I am unwilling to acknowledge free speech as a collective right!

Tony 9:29 PM  

Steve,

Good post. I know you and I have tangled before on the "need" for an assault rifle, and I saw your point then, and see it even more clearly now.

Hunting really is a non-issue, though many of my conservative friends will say the second amendment is all about "the right to arm bears" (pronounce bear "bar" with a guttural "r" from way back in the throat). Owning an assault rifle is simply about that; owning an assault rifle.

Joel 10:26 AM  

Obviously ignorance as to what constitutes an "assault rifle" is an issue here. I encounter several "ban the assault rifles" people who, when pressed, can't even define what constitutes such a weapon. Most think you're talking about fully automatic machine guns, like Uzi's or some such thing.

I can hit a gun show this weekend and modify my 30.06 hunting rifle into a cool looking "assault rifle" just by buying a kit and a "do it yourself" DVD. Have I now transformed by "acceptable hunting rifle" into an "unacceptable assault weapon" just by modifying the stock, barrel and clip? NO, it's just a cool looking, much less effective hunting weapon now. Have I increased it's ability to be used in a crime? I don't know how. It shot bullets before, it shoots them now. I can conceal it better now, I guess, but you can saw off a shotgun if you really want fire power that is more easily concealed in a coat. A sawed off shot gun isn't an "assault weapon."

I don't get the fear here, just take a look at the stats, as mentioned by steves earlier. You want to ban guns that are actually used to commit crimes? Then you have to ban hand guns. They're the most accessable and the easiest to commit crimes with, but also the easiest to use for personal protection, so there is a catch-22.

I believe that if an assault rifle ban were to go into effect it would have no statistical significance on crime, and this would be pointed out immediately. Once that comes to light, congress, instead of lifting a clearly ineffective law, will simply say that the law didn't go far enough. Then they'll want a ban on all rifles over a certain caliber, or rifles which are capable of shooting accurately over a great distance. Then the debate will be on "sniper capable" weapons, which ALSO are statistically insignificant when it comes to crime... eventually they're examining hand guns. I hate slipery slope arguments, but there you go...

Bob 10:41 AM  

A sawed off shot gun isn't an "assault weapon."

Aren't those illegal?

B Mac 11:33 AM  

Did the framers intend for the 2nd amendment to stand alone?

Good point Smitty, but as Devil's Advocate I would counter with the fact that the 2nd amendment is the ONLY amendment that countains a statement of legislative purpose. I.e., it is BECAUSE a well-regulated militia is necessary for the security of a free state that the government shall not infringe. The rest of our Constitutional rights are stated as absolutes; this is the sole right that is qualified. Moreover, it is SPECIFICALLY qualified in terms of the collective security of the free state and the necessity of a regulated state entity.

I personally believe that Heller was right, and the right is an individual right. Where I differ with Steve (and most everyone who agrees with Heller) is that I believe that individual right to be limited to the individual's relationship to the federal government.

FWIW, many states (including Michigan) protect the right to keep & bear in their own state constitution.

Joel 12:02 PM  

Yes. ILLEGAL sawed off shotguns are used in more crimes than otherwise LEGAL assault rifles.

My point was, with respect to the argument that assault rifles are somehow more dangerous because they're easy to conceal, the reality is that it's cheaper to saw off a shot gun (which provides more close range fire power) than to purchase an assault rifle (the legality of which is irrelevent since we're talking about a criminal committing a crime anyhow). Likewise, it's easier to saw off a shot gun than it is to modify an existing rifle.

Andy 10:15 AM  

(I wrote this before reading all other comments. I have been away from computer for the last few days)

My responses are below. I apologize for comments I made regarding automatic vs. semi-automatic weapons. Clearly out of my expertise. I have shot handguns and shotguns. Never auto or semi-auto weapons. I stand corrected by Steve or Noah on any of that.

My responses on this issue of rights (which I clearly disagree with Steve and, apparently, a few others):

This goes back to my original point. Individual liberties are not subject to the individual first demonstrating a need. This is just not the way it is done in a free society. Never has and never should be. I can think of a variety of reasons...some compelling, some not compelling. This makes no difference.

By this logic, I should not only be able to own an AK47 and a rocket launcher, I should also be able to snort cocaine, litter wherever I want, not educate my children, burn down my home, etc.

Individual liberties are generally guaranteed by the constitution, but defined by Congress. That is our system of government. I have the right to free speech (1st amendment) but not the right to exercise my free speech by yelling FIRE in a movie theater. I have the right to self expression, but not the right to trample on other rights. Rights are generally placed in the constitution, then defined by the Congress. And when the Congress goes to far, the Supreme Court overrules them (i.e. Congress shall make no laws in respect to religion). That is our system of government.


The Bill of Rights lists certain rights, but fundamental rights don't owe their existence to the gov't, they are inherent to a free people. A religious person would say they come from God. A non-religious person would say they are inherent to all humans by our nature.

This is not true. We are not a society based on religious or natural law rights. There are certain rights that are true for religious and non-religious people (like murder), but these rights have been codified in the law that governs us. The bible also allows for slavery and many other things that have been allowed for centuries and we forbid. There are some states that recognize common law (Michigan is not one of them), but that would be law based on centuries of legal interpretation. We are not governed by some hazy set of agreed upon laws. And thank goodness. The Christians would have one set, Jews another, Muslims yet another, and non-religious even others. Our laws are set by us, in a federalist way through our Constitution and our Congress and our state and local laws. Not by some fundamental rights. Fundamental rights are those that are codified.

Irrelevant, if we are talking about a fundamental liberty.

The will of the people is not irrelevant. We are a majority rule society. The only time majority does not rule is when the majority oppresses the minority (i.e. separate but equal), but this decision is made by our Supreme Court who is deciding if Congress or states have overstepped their bounds. If a majority of people, as shown through their elected Congress, decide that safety is more and the Brady Bill should be re-established then only the Supreme Court can decide if that breaches the 2nd amendment. And they did not do that when the Brady bill was in effect. So this is absolutely relevant!

This not how I remembered it. There was certainly support among anti-gun groups and some in Congress, but most were content to let it die.

Some in Congress were content to let it die, that’s true. In fact, the Congressional leadership were content to let it die. The Newt Gingriches of the world. But there was an uproar. I remember lots of editorials, letters to the editor, calls from both Dem and GOP organizations (remember, Brady was a Republican), and lots of other efforts. Yes, there were some who wanted it to die and they were in leadership in the House and Senate, but this did not die with a whimper. The Brady Bill people lost, but they put up a fight. They couldn’t get around House and Senate GOP leadership at the time, though.

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