SCOTUS Hears Oral Arguments On Case Determining Whether American Citizens Have the Right to Carry Hanguns under the Second Amendment

March 18, 2008 2:26 PM

Oral arguments were heard today in District of Columbia v. Heller, the first occasion in almost 70 years for the Supreme Court to decide the question, "Just what does the Second Amendment to the U.S. Constitution mean?"
posted by Law Talkin' Guy (104 comments total)

A blog devoted to the Supreme Court liveblogged the oral argument here.

They have an index of their coverage here, where you will find links to a lot of other coverage and analysis, as well as to the transcripts.
posted by prefpara at 2:34 PM on March 18

I went down there and looked around during lunch. Lots of people yelling about stuff. I don't think the justices heard them, though.
posted by MrMoonPie at 2:39 PM on March 18

I saw an interesting position about this over on Gamers With Jobs. If I understood it correctly, the right to bear arms was explicitly granted because it was expected that all able-bodied men would have a gun and would be a member of a militia. That's what the 'well-regulated' part was; they didn't want just any band of thugs to form, they wanted all militias to be created under the auspices of the state that contained them.

Basically, they were trying to be damn sure that every state (which were more 'small nations' by their way of thinking, later changed by the Civil War) had a large pool of armed, trained men to draw on, should war break out. They were trying to be certain that the Federal government wouldn't try to disarm the States and assert power over them. That, obviously, failed rather dismally.

The modern interpretation that people should be able to buy and own guns individually isn't quite what the Framers had in mind, but it's probably closest, overall, to their way of thinking: that at the extremes, political power comes from weapons, and that well-armed States prevent a tyrannical Federal government. Since we've done away with the whole idea of states-as-small-nations, the interpretation that arming individuals will help prevent government tyranny in general is probably the closest we're going to get.

We're long overdue for a Constitutional Convention.
posted by Malor at 2:41 PM on March 18 [15 favorites]

Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The question in front of the court is actually a lot more narrow than most of the news coverage would suggest.
posted by three blind mice at 2:46 PM on March 18

It's a really important case. I read through the oral arguments and found them interesting. I was thinking that a post, as with most of these issues, should wait for the opinion itself. But the value here in this post is the oral arguments. It really shows some interesting clause-bound interpretivism with emphasis on legislative history and original understanding. There were nearly a 100 briefs filed in this appeal, and you can tell that all of the judges were loaded for the argument. But it is just great fun to see how, while these are really important issues, you see things like Scalia asking Mr. Gura to slow down because he is speaking to fast. And you realize that this is a man who is probably incredibly nervous to be talking in front of the Court. It adds a human component to me.

But the oral argument also shows how often the arguments are useless. There is not a member of the Court who did not already know their answer to this issue before the argument. You even had Scalia answering questions of Breyer on behalf of Gura.

So the transcript is great: it has historical lessons about the framing of the Constitution; it has nerdy legalistic constitutional analysis; it has civics lessons on how the judges interact; and it even has some humor and human drama elements.

(Let's see what the opinion ultimately says).
posted by dios at 2:46 PM on March 18 [1 favorite]

We're long overdue for a Constitutional Convention. You said it. But the way the Constitution is deified we'll never see one outside an almost unimaginable crisis.
posted by gerryblog at 2:54 PM on March 18

I would also note that the oral argument showed that the king-maker Kennedy will likely be the deciding vote with Scalia, Roberts, Alito and Thomas on the reading that the right to bear arms extends beyond the right of militias (but not so far as to protect giant machine guns, etc.).
posted by dios at 2:54 PM on March 18

Why does everyone seem to interpret 'arms' as 'guns'?
They were talking about all weapons. Obviously, the framers intended for citizens (well-regulated or not) to be able to have and use nuclear arms, as well as pitchforks.

-We're long overdue for a Constitutional Convention.
That would truly be ugly, unless you found people of the same caliber as those who wrote the first one.
posted by MtDewd at 3:03 PM on March 18

Malor has it, and I've never considered it that way before.

In 1L orientation at Georgetown this year, the professors mooted this case quite handily (it was known as Parker at that point, Heller now) and the most interesting thing about it was the complete lack of precedent. Even seventy years ago (the only other 2nd amendment SCOTUS decision, essentially) they totally took a pass on truly defining what the fourteen words of amend. II actually mean.

Every legal scholar I've talked to thinkds that the court will overturn the D.C. gun ban. Not because of the court being more conservative now, but because even these highly liberal scholars would overturn it themselves, given the chance, and then specify the meaning of the right to bear arms as definitively as possible.

It's worth mentioning that these liberal legal scholars largely want this outcome so that the NRA will have nothing to fundraise on ever again.
posted by Navelgazer at 3:03 PM on March 18

Interesting stuff.

the interpretation that arming individuals will help prevent government tyranny in general is probably the closest we're going to get.



While this argument crops up from time to time, i don't think that the arms that are legally available to you would be much help if you are attempting to stop actual government forces in the act of tyranny. For this line of reasoning to make sense, citizens would need military-grade hardware at their disposal. Mall Ninja's daydreams notwithstanding, I don't see this as being feasible.

( I am not opposed to firearms ownership.)
posted by dubold at 3:06 PM on March 18

I for one wouldn't be entirely sure about how Scalia will come out in this case, despite what his comments during oral arguments might indicate. In my limited experience, lots of times judges (especially appellate judges) will let the argument wander into the realm of hypotheticals and devil's advocate arguments, while they're actually leaning in a completely different direction in terms of the ultimate outcome.

Remember, Scalia was the judge that said First Amendment freedoms of expression could be regulated inasmuch "indecent" speech was contra bonos mores (sixth paragraph from the top contains the salient text). Given his fairly pro-regulation, anti-individual freedoms view as far as the First Amendment is concerned, I'd say it's at least conceivable he might carry that inclination over to regulation of rights secured by the Second Amendment, too.
posted by Law Talkin' Guy at 3:09 PM on March 18

We're long overdue for a Constitutional Convention.

No. God no. 6 little words say why:

"In this post 9/11 world..."
posted by Talez at 3:10 PM on March 18 [11 favorites]

Second dubold.

The idea that you can withstand a government assault based on owning a couple of handguns and a cache of rifles boggles my mind. That should be the one lesson of Waco (and others) that was demonstrated all to clearly.
posted by herda05 at 3:11 PM on March 18

“The modern interpretation that people should be able to buy and own guns individually isn't quite what the Framers had in mind, but it's probably closest, overall, to their way of thinking”

I think so as well. Madison and Hamilton were pretty clear on individual ownership of firearms in the Federalist Papers.
Sam Adams was pretty clear (while pushing for ratification of the bill of rights) that “the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms.”
The 1982 congressional subcommittee report is a pretty in-depth look at the issue.
I’m fairly well convinced individual rights to own firearms is exactly what the founding fathers intended.

Whether that should have bearing on the matter today is another story. I’m of the opinion it’s still necessary. And I’m reluctant to surrender any right I currently enjoy - especially given the government’s recent encroachment on the rights that there is no debate over.

“Why does everyone seem to interpret 'arms' as 'guns'?
They were talking about all weapons. Obviously, the framers intended for citizens (well-regulated or not) to be able to have and use nuclear arms, as well as pitchforks.”

Well, in terms of modern consideration, obviously the framers intended everyone to be able to get on television as well.
Why don’t we then reconsider if the right to speak freely should only be extended to people who own presses or shares in media?
Pretty much where it sits now in terms of practically getting your voice heard. So what do you need that right for anyway?

In terms of the actual issue at hand, I don’t know how you can a priori enforce the law on trigger locks, and other gun safety measures. Oh, I think it’s a good idea. And I’d support making it mandatory to buy them with a firearm.
But what are we going to do, go into some guy’s house to make sure his firearm is safely stowed?
posted by Smedleyman at 3:13 PM on March 18 [1 favorite]

Second dubold as well, and It's nice to see him around again.

I'd just like to say to the idea that a Constitutional Convention nowadays would be a bad idea, because we're just not as wise as the framers were, let me remind you all that the framers included provisions promoting slavery because it was politically expedient.

Let's not put any of it up on a pedestal, shall we?
posted by Navelgazer at 3:15 PM on March 18

We're long overdue for a Constitutional Convention.

No, if something needs fixing, changing, about the present Constitution, we amend it. Thats the whole point of having the amendment ability, to change the Constitution as needed. Sure, it takes a heck of a lot of trouble, but I would certainly hope it should.

As for the hearing today, I'll throw my lot in on the overturning the gun ban. What really rankles me about the whole affair, was that this controversy arose out of NRA supported Congressmen who come from thousands of miles away and would probably prefer to visit the Green Zone than the worst parts of Southeast D.C.. The ban was passed by the people of D.C., and it should have been their right to determine if it should have remained or not. Just because Congress has oversight of the District Columbia, shouldn't allow them to casually ignore the pleas of the D.C. police department, Mayor, and majority of people, in turning the handgun ban into a political issue over gun rights.
posted by Atreides at 3:17 PM on March 18

It's worth mentioning that these liberal legal scholars largely want this outcome so that the NRA will have nothing to fundraise on ever again.

Then the scholars are going to be horribly disappointed. As soon as the Supremes overturn the DC ban and define the 2nd as an individual right, the NRA will, most likely, turn-up the fundraising steam...

Images of the Rockies...a bald eagle soaring high...the flag waving majestically...
"We fought to secure your second amendment rights. But even now, there are those who would attempt to influence lawmakers to amend the constitution...to strip-away the rights given you by our founding fathers. Give today, so that we can all live in liberty tomorrow."
Cue Copland-esque crescendo...grandpa walking with grandkids...super NRA logo

The gravy-train must never end.
posted by Thorzdad at 3:19 PM on March 18

How to people who oppose gun control interpret the "well regulated militia" part? Do they just pretend it's not there?
posted by kirkaracha at 3:20 PM on March 18

Would it be too hard to link to actual relevant passages in the Federalist Papers, as opposed to Wikipedia articles about the Federalist Papers? It's not as if they're unavailable via the Internets.
posted by raysmj at 3:21 PM on March 18

That would truly be ugly, unless you found people of the same caliber as those who wrote the first one.

Well, all right then. I'll send out a call to all of the wealthy slave-owners that I know.
posted by Parasite Unseen at 3:28 PM on March 18 [3 favorites]

I think it's possible to overstate the importance of the second amendment.

If we are to suppose that it is some barrier to tyranny, then how is it that every armed insurrection has failed, badly, at achieving their goals through force of arms, particularly in the past 150 years ?

Related to that point, the woman's suffrage movement as well as the civil rights movement were driven to their conclusion not by force of arms but through other means.
posted by Pogo_Fuzzybutt at 3:29 PM on March 18 [1 favorite]

The idea that you can withstand a government assault based on owning a couple of handguns and a cache of rifles boggles my mind. That should be the one lesson of Waco (and others) that was demonstrated all to clearly.

Waco's lesson is completely apt if you assume that the government will have the full support of the military and all resistance will come from groups small enough to fit into a single compound. In situations of widespread resistance, in which military forces might be divided on the issue, Waco's usefulness as a unit of measurement is a bit less clear. Iraq might be a closer comparison in cases of that nature. Frankly, I hope never to have occasion to find out.
posted by Parasite Unseen at 3:36 PM on March 18 [1 favorite]

How to people who oppose gun control interpret the "well regulated militia" part? Do they just pretend it's not there?

They argue that the first clause is non-restrictive. It would be like saying:

There being nothing on TV, I read a book.

While the second clause may be logically related to the first, it does not depend on it. Whether there was something on TV to watch does not change the fact that I read a book.
posted by MasterShake at 3:42 PM on March 18 [2 favorites]

In Illinois' Constitution, at least:

                         ARTICLE XII

                           MILITIA





SECTION 1.  MEMBERSHIP

    The State militia consists of all able-bodied persons

residing in the State except those exempted by law.

(Source: Illinois Constitution.)

So... about that 'militia' clause again.
posted by vanadium at 3:43 PM on March 18

How to people who oppose gun control interpret the "well regulated militia" part? Do they just pretend it's not there?
posted by kirkaracha at 5:20 PM on March 18

It's discussed heavily in the oral argument that is the subject of the post.

Here are some of the relevant comments from the King-maker Kennedy on the point:

One of the concerns, Mr. Dellinger, of the framers, was not to establish a practice of amending the Constitution and its important provisions, and it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red brief, but that conforms the two clauses and in effect delinks them. The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause. Those were very important clauses. As you've indicated, they're in Article I and Article II. And so in effect the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms.

But the Second -- the Second Amendment doesn't repeal that [the militia clause in Article I section 8]. You don't take the position that Congress no longer has the power to organize, arm, and discipline the militia, do you?

So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.

So look at the text:

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.

The operative clause is the bolded section. It states that the right to bear arms shall not be infringed. That is the instruction to the government. The prior clause about the militia is merely a re-affirmation of the importance of the militia clause.

So if you wanted to unpack the clause, it could be read something like this:

Congress shall make no law infringing on the right of the people to keep and bear arms because, as we noted in Article I section 8, militias are very important to protect the country and to provide for the security of a free State.
posted by dios at 3:43 PM on March 18 [6 favorites]

-How to people who oppose gun control interpret the "well regulated militia" part?

I don't think the amendment says that's the only reason. It's there as a compelling reason, but not the only one.
posted by MtDewd at 3:44 PM on March 18

The last thing we need right now is yet another controlled substance.
posted by kid ichorous at 3:49 PM on March 18

unless you found people of the same caliber as those who wrote the first one.

I think this view is both an unfair shot at modern Americans, and raises the target for 18th-C Americans unfairly high. Firstly, there are many more Americans today; all else being equal, the very smartest and wisest will be smarter, and wiser than those in the smaller group, and only the smartest and wisest would now (and were, then) be permitted to participate. And all is not equal: you, today, have access to all of their ideas. Even if you were only somewhat less intelligent, you'd be able to come to better decisions than them because you have the advantage of access to more information.

Comparing Jefferson and Adams to the guy down the road is unfair to both; I'm not convinced that the general public today are dumber than the general public of the past, only that the very dumbest and most foolish are more so, for the same reason as before: numbers. In any case the role of the general public is only to confirm a decision made by the elected representatives and the experts; just as happened then.

Secondly, the fact that the controversy even exists is itself evidence that the matter wasn't correctly or completely enough addressed; the law missed the point it was intended to hit. Well-drafted law admits no fair-minded controversy; if fair-minded people may differ as to what it means, it is not well-enough drafted. In these cases under common law it is up to the judges, eventually the Supreme Court, to put the controversy down, but if the controversy is still kicking after the court's decision, it is the legislature's duty to give the court more ammunition, by redrafting and amending the law. Which in turn, may come up for review by the court.

The problem is that Americans have been encouraged from childhood to almost worship their Constitution, seeing it as one step down from Gospel, and don't generally think about how the very idea of an amendment implies that the original document had problems that made amending it necessary, which means that further problems may exist. It's been amended a number of times already, including to remove previous amendments. There's nothing about the Second Amendment that can or should make it invulnerable to this process.
posted by aeschenkarnos at 3:58 PM on March 18 [6 favorites]

How to people who oppose gun control interpret the "well regulated militia" part? Do they just pretend it's not there?

I thought this was an interesting comment in the live blog that prefpara links to above:

[Comment From Joe Morello]
I think it's a very fair question to ask whether the first part of the clause has any effect at all. Assume that the First Amendment began with the clause, "a well-edited newspaper..." There would be no argument as to whether the freedom of speech could be abridged for other media.

posted by Armitage Shanks at 3:59 PM on March 18 [2 favorites]

“it's not as if they're unavailable via the Internets.”

My computer is pretty lousy (long story). There’s a lot of the relevent clauses cited in the other link I posted.
And people don’t seem to want to read all that much anyway.
But -
James Madison in Federalist No. 46 wrote:
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. “


Hamilton's Federalist No. 28.:
“That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction.”
And
“If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.”

Hamilton adds:
“The people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!”
And ends:
“When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.”

After Madison's Bill of Rights was submitted to Congress, Tench Coxe (then Secretary of the Treasury) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:
“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”

George Mason (Va. constitutional convention delegate) in objection to the constitution and in support of the bill of rights wrote:
“I ask, Who are the militia? They consist now of the whole people, except a few public officers.”
And during Virginia’s ratification:
“Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised ...to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia...”
And
“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless - by disarming them.”



“The idea that you can withstand a government assault based on owning a couple of handguns and a cache of rifles boggles my mind. That should be the one lesson of Waco (and others) that was demonstrated all to clearly.”

And yet, one old woman can take on and wound three cops. Huh.
Think there’d be any news if she didn’t fire back?

Also - a handful of donut eaters can shut you down if you choose to immobilize yourself. Tactics 101.

But yeah, pretty much the Clintonian wet dream, using federal troops to burn women and children to death for the crime of gun ownership. Oh, but Bush is a fascist for tapping people’s phones? Good on ya.

“then how is it that every armed insurrection has failed, badly, at achieving their goals through force of arms”

Um, cite? ‘Cause I can think of more than a few that have succeeded offhand the JVP (Janatha Vimukthi Peramuna) in Sri Lanka (’89 not ‘71), on U.S. soil - hell, the battle of Athens . 1946 , I think, would be within the last 150 years.

Y’know, there is a reasonable discussion to be had on the role of firearm ownership and the individual in the modern age. This ain’t it. And typically we don’t get much of the considered reasoning from, say, Malor, et.al. Just pretty much becomes gainsaying because the matter is so heated.
I don’t have the time to educate people again and again on this when people insist on saying things like every armed insurrection has failed in the last 150 years or what do you need a gun for? etc. etc.
Want to talk trigger locks, keeping guns out of the hands of nutcases, stuff like that - maybe limiting firearm use amongst our domestic LEA first?
I’m all ears.
But for as much bitching about police brutality as I see here, you’d think you’d be a little leery about the police being more and more heavily armed before we talk about taking firearms away from citizens.
posted by Smedleyman at 4:11 PM on March 18 [7 favorites]

Good lord. Can they just do the 5-to-4 show of hands now, give the gun nuts their bottles and save the money we're wasting pretending we don't know what the outcome of this will be?

Anyway, I live in DC, and even after Roberts makes his pretty speech about how America, Fuck Yeah! can now have as many guns as you want I don't expect to see them in the District any time soon. The Supreme Court also said you have the right to an abortion, and you can see just how well the government avoided making any laws the restrict or increase the difficulty of obtaining those.
posted by XQUZYPHYR at 4:15 PM on March 18

And of course, several people make perfectly reasonable arguments (even tho I obviously disagree dios) right before I post that. Ok, I’m a dick.
posted by Smedleyman at 4:17 PM on March 18

Just to chime in with some context as a former DC resident -- it rankles people that a (formerly) Republican Congress brought this whole issue up in the first place. Handgun violence was what made DC the "Murder Capitol" for years (I think it's Richmond, VA now if you go on a per capita basis, or maybe Atlanta, but anyhoo). Think the 80's in particular -- crack, 15 year-olds murdering 13 year-olds, and a woefully inept, it not downright corrupt, DC government and police force that did little to stem the tide of violence (think Marion Barry). Also, don't forget race -- it was almost entirely black-on-black violence, and the city finally took steps to ban handguns.

Did it make a difference? Well, not really. Then again, you had easy access to guns if you just stepped over the state line into Virginia and made a straw purchase (finding someone with a clean criminal record to buy a couple of heaters, then re-selling them at a profit inside the city). So, IMHO, DC residents have every right to be pissed off by all of this. Scalia talks a big game about states' rights (I know, I know, DC isn't a state, but it should have the right to make its own laws based on the popular will of its residents) but ultimately he's proven that it's all just a rhetorical ploy for him (CA laws on medical marijuana, OR laws on assisted suicide, etc.).

I haven't had the time to look over the arguments as closely as others, so I appreciate the synopses. And while this is hardly the most perspicacious of legal perspectives, allow me to say this -- F*** the NRA. Seriously. I'm not a hardcore anti-gun person myself (far from it, actually) but to see them picking on the residents of a city that put local laws into place in order to try and quell its own problem with violence? It's disgusting.
posted by bardic at 4:25 PM on March 18

Here's one counterargument to the proposition that the "right to keep and bear arms" clause should be tied to the "well-regulated militia" clause:

Today, "in this post-9/11 world" if you will, hostile foreign powers will not attack states using muskets or cannons. In the event a militia is needed to defend a state from military encroachment, the aggressor will use tanks, warplanes, sophisticated bombs, rockets, missiles, helicopters, etc. Interpreting the rights created by the Second Amendment to enable citizens to keep and bear the arms necessary to create a militia capable of effectively defending against that level of attack opens Pandora's box.

Handguns won't even be the starting point. Citizens would be after assault rifles, IED's, surface-to-air missiles, antitank weaponry, and God knows what else. Every Blood, Crip, Latin King, and Eric Harris wannabe could, absent exacting regulation we currently don't have, declare themselves part of the local milita and arm themselves to the teeth with advanced weaponry. It goes without saying that at that point, the last thing we'd need to worry about is defending against attacks from without-- attacks from within would be more than capable of doing enough damage.
posted by Law Talkin' Guy at 4:26 PM on March 18

While we're parsing, how about just the 2nd part:
...the right of the people to keep and bear Arms, shall not be infringed.

I've always interpreted that as saying 'people are allowed to own and use weapons', not 'any restrictions of any kind on gun ownership or use is an infringement'. Does the DC law say you can't keep or bear arms? You can't own certain kinds of guns, and you can't use them in the District, but you are not prevented from either keeping or bearing [elsewhere].

I'm pretty much anti-gun, but I think folks should be allowed to have some...but not anything goes. I don't see any problem with saying that laws that say no assault rifles or no carrying guns in a schoolyard are unconstitutional.
posted by MtDewd at 4:29 PM on March 18

"The people" in every mention of The Constitution has been ruled to be you, I, them, ... all U.S. citizens in every interpretation.

Gun ownership is another God given American right, along with smoking cigarettes, drinking oneself into a coma, driving 85 on the highway, and a host of other potentially self-harmful habits.
posted by buzzman at 4:40 PM on March 18

Law Talkin' Guy: I think that interpretation would be exactly correct. If the purpose of owning the weapons is to make a viable militia, then the militia (the people) should be able to own whatever military hardware is required to be a successful defense force.

If you don't like that interpretation, then amend the Constitution, don't play weasel-word games with what it clearly says.
posted by Malor at 4:40 PM on March 18 [3 favorites]

Law Talkin' Guy and Malor: What you are missing is that even if something is a fundamental right--that is, an explicit constitutional right such as the right to bear arms, freedom of speech, freedom of press--it can still be limited. The fact that it is a fundamental right just requires that any infringement thereof only pass strict scrutiny--it must be justified by a compelling state interest and be narrowly tailored and the least restrictive means.

There certainly would be a compelling state interest in not having citizens with Stinger missiles, and a law banning the possession of stinger missiles by citizens would be narrowly tailored and the least restrictive means by which to prevent people shooting up 747s with Stingers.

The importance that the right to bear arms being a fundamental right is that it requires strict scrutiny to apply. If intermediate scrutiny or rational basis applied, then nearly all gun laws would be permissible.

So I think they will say that a restriction on machine gun passes strict scrutiny, certain limitations on handguns will not.
posted by dios at 4:48 PM on March 18 [2 favorites]

There's clearly a problem in this thing.

Your constitution. I mean, how long has this amendment been argued over? It's all so wishy washy, people interpret it half a dozen different ways, arguments like this come up. There is a problem with it. Fix it. It's broken. Amend the sucker. I don't care how. Give it decent, clear language. I get the feeling people like to keep it vague so they can keep having little bitch fights like this, instead of making a real, sensible decision about the what the public wants, and what's in the best interests of the public.
posted by Jimbob at 4:55 PM on March 18

Malor,

The First Amendment also provides that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right to peaceably assemble, and to petition the Government for redress of grievances."

Courts have long said that statutory and constitutional text is not interpreted in such a way as to produce absurd results, i.e. not with blind literalism. But let's abandon that and apply your literal reading of the Second Amendment to the First Amendment. Securities Regulation is now unworkable since offering unregistered securities is a product of speech which Congress shall make no law to abridge. Hate crimes legislation encounters the same problems as far as racist propaganda is concerned. Ditto for Title VII sexual harassment law, inasmuch as it concerns harassing speech.

Furthermore, because the First Amendment is incorporated against the states through the Fourteenth Amendment, we can't have state laws against fraud, since that's also speech. Same with defamation torts, verbal threats, and so on. The end result is a catastrophically robotic and overbroad application of a law that quite obviously could not have been intended to have that purpose.

Rather than grapple with these sorts of results, the courts have long allowed themselves to interpret statutes and constitutional provisions in a way that might not be consistent with their literal meaning, but that effectuates the ostensible intent of the drafters and prevents unworkable results. I'm sure you'll agree a similar reading of the First Amendment to the one you propose should be applied to the Second Amendment would generate exactly these sorts of unworkable results.
posted by Law Talkin' Guy at 5:02 PM on March 18

Assuming that the SSJs strike down the ban, the concrete question is whether D.C. will be safer when even more people are (legally) bearing arms.

Since D.C. lacks a state's representation, it seems unfair to make it into a pro-gun test case (cf. the pro-gun argument that fewer people would have died at Virginia Tech if the students had been allowed to carry weapons). Though one might well admit that the gun-control test case failed to work in D.C., I don't think that making D.C. into Deadwood City will make life safer for people in its crime-prone neighborhoods.
posted by bad grammar at 5:06 PM on March 18

This is rather straightforward as rights go (just like abortion). Go back to the time that guns (and abortions) were tolerated during the life of the founders. That is the context, and we should never mind intent because there is no such known thing; or rather, screw their intentions if they didn't make them crystal clear. This doesn't let assault weapons and handguns off the hook because the technology didn't yet exist to the founders to even imagine a modern school shooting. In fact, the modern technology is due to the adoption of the bullet cartridge (bullet + powder casing). Modern "bullets" are the things that should be regulated or taxed, in accordance to their demand in facilitating crime. They should be tax free for militia members. Gang members with assault weapons will thing twice about spraying a street corner at five bucks a pop.
posted by Brian B. at 5:08 PM on March 18

Look, the whole "Well regulated Militia" argument...

You get an AK with an inexpertly filed down firing pin. Maybe an RPG and a couple of buddies not being held ex habeas.

They get M1 main battle tanks, UAVs and the entire communications grid.

How do you like them odds, eh?

I call official bullshit on any throwing off of tyranny argument. It's been a pipe dream since automatic weapons and refiled artillery.
posted by digitalprimate at 5:09 PM on March 18 [1 favorite]

We need, in case the occasion comes up, to be able to take our guns and shoot the president and vice-president.

In the pursuit of happiness.
posted by lathrop at 5:10 PM on March 18 [2 favorites]

Ack, on preview, spell check let me down again!

(btw, they get all spell checks too :) )
posted by digitalprimate at 5:17 PM on March 18

Just to chime in with some context as a former DC resident -- it rankles people that a (formerly) Republican Congress brought this whole issue up in the first place.

I'm not sure I follow how Congress was the one that first brought up this issue.
posted by gyc at 5:28 PM on March 18

“then the militia (the people) should be able to own whatever military hardware is required to be a successful defense force.”

Malor, I agree. But in terms of “successful defense force” all you really need is some high powered rifles and stealth.

“How do you like them odds, eh?”
Having faced them? Just fine. And we get to use their communications grid against them. But those candy ass signs and sit ins on the mall, that’ll stop those tanks once they’re in the streets?
No one expects a milita to fight pitched battles, and they didn’t expect even that back then. I mean the Green Mountain Boys were irregulars, a militia (all volunteers pretty much without training) they pretty much just harrassed and skirmished and evaded. Later they became a more formal military unit, but they didn’t go toe to toe with organized infantry when they started.

Same deal today. If I’m there I follow the tank until the TC unbuttons, take him out from extreme distance and fade. Go to church or something where everyone and his brother swears I’ve been all night. But really - a can of gas, some bottles, maybe some RDX I brew up in mom’s basement or some pentolite if I need to thin it out (we gonna ban calcium cleaner and camp stove fuel?), a few rifles to make the infantry support take cover - hunting tanks is fun and easy. (And it’s not like you need a field manual. Jane’s International Review is a wealth of knowlege on the subject)

I suppose tho I’m approaching the question of limitation from the other angle. Given the choice of where to fight, one guy with a good deer rifle can pin down a battalion. So -
“the concrete question is whether D.C. will be safer when even more people are (legally) bearing arms.”

Yeah. I’d have to stand on the ubiquity of machine guns not accomplishing that. On the other hand, the definition of machine gun, assault rifle, etc. keeps getting moved around. Same kind of legal trickery being used (as pointed out) in the abortion question.
posted by Smedleyman at 5:28 PM on March 18 [2 favorites]

“(btw, they get all spell checks too :) )”
digitalprimate, they can have my spell check when they pry it from my cold deed hand.
posted by Smedleyman at 5:36 PM on March 18

....damn!
posted by Smedleyman at 5:37 PM on March 18

I'm sorry, Sedleyman. As much as I have always respected your comments, that's just silly. Seriously silly. You really, honestly, think that five guys trying to "organize" something would get a week into it before being picked up? The paradigm of a shooting war inside the US was over a long, long time ago.
posted by digitalprimate at 5:37 PM on March 18

Securities Regulation is now unworkable since offering unregistered securities is a product of speech

That's commerce, not speech. You can talk about your security all you want. You just can't sell it unless you register it.

Hate crimes legislation encounters the same problems as far as racist propaganda is concerned.

Hate crimes legislation is an abomination where it applies to speech. Punish actions, not ideas. No matter how vile it may be, the answer to speech you don't like is more speech. Punishing actions, on the other hand, is clearly Constitutional.

Ditto for Title VII sexual harassment law, inasmuch as it concerns harassing speech.

Same deal. You don't 'cure' ideas you don't like by pointing guns at people and telling them to shut up.

Furthermore, because the First Amendment is incorporated against the states through the Fourteenth Amendment, we can't have state laws against fraud, since that's also speech.

May I have some of what you're smoking, please?

Same with defamation torts, verbal threats, and so on.

Ideas, and the communication of ideas, should never be punishable. Making demonstrably false claims about people, on the other hand, and threatening violence, are on the other side of the idea line.

The end result is a catastrophically robotic and overbroad application of a law that quite obviously could not have been intended to have that purpose.

In other words, "I want society to be engineered in a particular way, so let's read the Constitution in such a way that I can have the laws I want, OK?"

I'm sure you'll agree a similar reading of the First Amendment to the one you propose should be applied to the Second Amendment would generate exactly these sorts of unworkable results.

No, I really don't.

The Consitution says, about as clearly as it can, that "Because defense forces are important to the nation's security, you can't disarm the people." If you want it to say something else, get it amended.
posted by Malor at 5:43 PM on March 18 [1 favorite]

You get an AK with an inexpertly filed down firing pin. Maybe an RPG and a couple of buddies not being held ex habeas.

They get M1 main battle tanks, UAVs and the entire communications grid.

How do you like them odds, eh?

Iraq called to say "hi." They don't really like the odds, but they seem to have done a pretty good job of grinding down our military.
posted by ryoshu at 5:49 PM on March 18 [2 favorites]

Well, the language and cultural and social and economic difference there of course have nothing to with the homogeneous situation here in the US of course.

Sorry, silly me, thinking that when even commercial companies know more about all of us than the entire intelligence community knows about the most wanted "terrorist" de jure that any insigators would be easy targets.

And, for the record, a couple of guys with high powered rifles against a mech infantry brigade? Yeah, not so much.
posted by digitalprimate at 5:56 PM on March 18

That said, should Red Blooded God Fearing Americans choose to live in abject poverty with almost no hope of living very long, well ok, sure. You can haz revolution.
posted by digitalprimate at 5:57 PM on March 18

Yeah, I own guns, I like guns, but the entire "armed citizens prevent tyrany" line is absolute and complete BS. At best it makes a guerria style insurgency easier at the beginning phases.

The home defense line is BS too. Most guns kept, theoretically, for home defense are the wrong tool for the job, and most people who keep them aren't trained for indoor combat. It is not a coincidence that guns kept for home defense kill family and friends significantly more often than they kill burglers, rapists, etc. Handguns and slugs are rediculously unsuited for a fight in a typical home; any missed shot will go through every wall in the house (unless it hits a stud or pipe) and become a hazard to family hiding. Shotguns with birdshot are your best bet for real home defense, they don't take much aiming, they're intimidating as hell, and they're less likely to punch through walls and hit bystanders.

I own and like guns for one reason: they're fun. I won't try to BS people and claim that there's more to it than that.
posted by sotonohito at 5:59 PM on March 18 [1 favorite]

I only want to chime in to say...why would we ban them?

Safety?
Time to get rid of old folks w/ cars, young folks w/ cars and cell phones, x-rays and cigarettes...all things that kill waaaay more people and that waaaaay more people choose to freely engage in.

Because of the loonies?
Time to ban churches, free speech, and the micro-press then.

Because of the children?
I learned to handle a gun at 6 years old. I took the NRA home protection course at 15. Again, I think saying "ZOMG NO TAKE IT AWAY" is more dangerous than a little learning. To use the car argument again---how many of you had parents who didn't seriously teach you how to drive? I didn't--but had plenty of friends who did. My girlfriend, for example, treats her 3000 lb rolling piece of steel as a luxury that she points down the road in the general direction she wants to go.

I think that fewer laws are better laws, and while I don't think that anyone necessarily needs an AK and a banana clip, I'm one of those people who could do waaaaaay more damage with a single shot bolt action .22-270 than I ever could with an AK...and you're not going to see the bannination of those any time soon.

Constitutional Convention? Are you serious? You really want the partisan lines dividing up our freedoms and redistributing them based on who got more votes last time around and who spent the most money lobbying? Welcome to the United States of ViaCom. Ouchie.
posted by TomMelee at 6:12 PM on March 18 [2 favorites]

South Carolina's constitution has a provision similar to that of Illinois:

ARTICLE XIII.

MILITIA

SECTION 1. Militia.

The militia of this State shall consist of all able-bodied male citizens of the State between the ages of eighteen and forty-five years, except such persons as are now or may be exempted by the laws of the United States or this State, or who from religious scruples may be adverse to bearing arms, and shall be organized, officered, armed, equipped and disciplined as the General Assembly may by law direct.

But as MasterShake, dios, et alia have pointed out, there is a reading of the 2nd amendment that doesn't require the existence of militias.
posted by Tullius at 6:14 PM on March 18

But yeah, pretty much the Clintonian wet dream, using federal troops to burn women and children to death for the crime of gun ownership.

Wow, and I was just starting to think you weren't batshit insane.
posted by Pope Guilty at 6:22 PM on March 18

I'm sure you'll agree a similar reading of the First Amendment to the one you propose should be applied to the Second Amendment would generate exactly these sorts of unworkable results.

No, I really don't.

And yet you said earlier, "Making demonstrably false claims about people, on the other hand, and threatening violence, are on the other side of the idea line." You say this despite the fact that the First Amendment says, as clearly as it can, "Congress shall make no law . . . ." So it seems you too subscribe to the notion, "I want society to be engineered in a particular way, so let's read the Constitution in such a way that I can have the laws I want, OK?" inasmuch as false statements and threats fall on the wrong side of your "idea line." In a literal, absolutist reading of the First Amendment, there's no room for such a line. Congress shall make no law.

And furthermore, Securities Regulation punishes more than the selling of unregistered securities. Under the Securities Act of 1933 offering unregistered securities, an act taking place through speech, is prohibited. This would not be possible under a literal reading of the First Amendment.

To provide another example, since I agree with your critiques of Title VII and hate speech legislation, there can be no federal laws restricting frivolous lawsuits, which can sometimes become a problem, because "Congress shall make no law abridging . . . the right . . . to petition the Government for redress of grievances."

As for what I'm "smoking," I call it "decisional incorporation." It's how the Supreme Court decided that certain aspects of the Bill of Rights, including the First Amendment, are incorporated to restrict state governments through the Due Process Clause of the Fourteenth Amendment. If you want some of what I'm "smoking," it's available at a law library near you.
posted by Law Talkin' Guy at 6:25 PM on March 18 [3 favorites]

“Wow, and I was just starting to think you weren't batshit insane.”

No. Hyperbolic and low tolerance for b.s. today.
Or are we talking Waco as some kind of success story instead of the tragedy that it was?
You’ll excuse me if I think the government killing innocent women and children to accomplish a misguided and overall pointless goal that could have been avoided by using diplomacy is anything but a demonstration of utter stupidity.
You oppose the Iraq war for (among other reasons) the same general principle, no?
Well, me too.
No, it’s only proof of what people will let the administration they agree with get away with.
I alternate between being scared of one side of the country and another.
Funny, buddy of mine called me batshitinsane a few years ago when I said I thought the government might be monitoring people’s e-mail.

“any missed shot will go through every wall in the house (unless it hits a stud or pipe) and become a hazard to family hiding.”

There’s more than one kind of ammunition

“You really, honestly, think that five guys trying to "organize" something would get a week into it before being picked up.”

Oh, I think they might do some damage before they get picked up, yeah.

“for the record, a couple of guys with high powered rifles against a mech infantry brigade?”

Switzerland. Never invaded. It’s not because of the banks. It’s the mountain passes.
The German snipers would routinely account for fifty percent of an American Battalion's casualties.
Simo Häyhä - 505 confirmed kills in under three months.
Carlos Hatchcock - Marine sniper, Vietnam war - eliminated an entire NVA company with John Burke - kept them pinned down in Elephant valley for five days while picking them off one by one.
In 1982 Salvadorian snipers pinned down four government garrisons in Usulutan and cut the power lines.
In the first Chechen war the Nokhcho organized into fireteams of a guy with an RPG, a guy with a machine gun and a sniper - supported by ammo runners and they would routinely take out Russian armored columns in exactly the manner I stated - snipers would pin down the support infantry, and the other guys would bust it up - usually from on top of a building or they’d pop out of a sewer or basement and hit it in the ass.
That’s just offhand. I could go on and on. Should be enough cite. I know a thing or two about y’know, violence.
You served where?

But I think we’re talking two different things here. Armed insurrections work. But not without popular support.
If you’re talking a bunch of white supremacist nutjobs in the woods, than no.
But if a substantial chunk of the population is willing to aid and abet those folks - well, hell, look at the KKK when they were openly flouting the law. That’s not so far back in history.

And we’re talking oppression of a people who’ve known nothing but freedom all their lives. Yeah, I think they’d be pretty ornery. Hell, they’re bitching - loudly - about just taking their shoes off at the airport. You think folks in the U.S. are going to sit still for all that totalitarian crap?
You can fool some of the people some of the time - all that. I expect at least 40 - odd percent of them to be in opposition of whatever administration is doing at any given time.
posted by Smedleyman at 7:12 PM on March 18 [5 favorites]

Remember, Scalia was the judge that said First Amendment freedoms of expression could be regulated inasmuch "indecent" speech was contra bonos mores (sixth paragraph from the top contains the salient text). Given his fairly pro-regulation, anti-individual freedoms view as far as the First Amendment is concerned, I'd say it's at least conceivable he might carry that inclination over to regulation of rights secured by the Second Amendment, too.

Very simplistic and inaccurate view of Justice Scalia's jurisprudence. He is originalist, not anti-individual freedoms. That's why he was predictably pro-flag burning and anti-sentencing guidelines and anti-executive power with respect to detainees. His opinions are far more nuanced than you think.

As a Mefi member with probably the closest personal first-hand experience to the Court, I will call it close to a lead-pipe cinch that Justice Scalia will not vote to uphold the D.C. City Council.
posted by Slap Factory at 7:16 PM on March 18 [1 favorite]

And furthermore, Securities Regulation punishes more than the selling of unregistered securities. Under the Securities Act of 1933 offering unregistered securities, an act taking place through speech, is prohibited. This would not be possible under a literal reading of the First Amendment.

That's not speech. It's conduct. Are you a law student?
posted by Slap Factory at 7:18 PM on March 18

Or are we talking Waco as some kind of success story instead of the tragedy that it was?

Waco was a crazy tragedy. The 90's era militia "Bill Clinton is a murdering psychopath who wants to burn Christian gun owners to death" horseshit that spewed forth from your keyboard was, in fact, batshit insane.
posted by Pope Guilty at 7:21 PM on March 18 [2 favorites]

"[Offering unregistered securities] [i]s not speech. It's conduct. Are you a law student?"

How is it not speech? Please note that for the purposes of discussion, "not speech" means "not speech at all." If it's communicative language coming out of your mouth, it's speech.
posted by jock@law at 7:34 PM on March 18

Smedleyman

"You served where? "

Please. No offense, but you have no idea who I am, what I've done or whom I know. Ad Hominem requires at least that much. For the record, no, I have never been in combat (although I do know my way around smallarms). I do, however, know a fucking shitload about how real world intel works. I've been doing it since '93 in various capacities for major oil companies, pharma companies and financial institutions.

Your outlier examples, brave thought they may be, notwithstanding, I'm trying to make the point that it *would never even get that far in the modern US* Even with massive popular support, there's just no way to make a plausible argument for armed insurrection here barring some event significant enough to tear the nation apart before any insurrection ever took place.
posted by digitalprimate at 7:39 PM on March 18 [1 favorite]

Smedleyman's battle of Athens link is worth following. Tyranny in this country could occur at local, state or federal level. If you can't think of an instance where such tyranny might not be resisted by other government forces, with the assistance of even a lightly armed citizenry making the difference between a defeat and a victory, your imagination or your grasp of history is deficient. Too much 1984, and not enough careful study of Roman history.

That being said, I'd be happier if the second amendment was re-amended for clarification under constitutional process, whatever the result in terms of gun ownership. I think constitutional ambiguity creates a danger of making people disrespect the law which I find somewhat depressing. For some reason it seems like legal scholars don't like to think about the second amendment much.
posted by BrotherCaine at 7:43 PM on March 18

Why do you think the second amendment needs to be amended? One Supreme Court case coming down definitively on it is more than enough. What's the point of amending the constitution?
posted by jock@law at 7:45 PM on March 18

On review, preview etc.

The idea that we live in a nation where people feel they *need* guns is enough to turn my stomach. There are other places, places I've lived, where this is not the case.

Bonitas non est pessimis esse meliorem.

Me regrets posting and goes back to lurking.
posted by digitalprimate at 7:52 PM on March 18

“Waco was a crazy tragedy. The 90's era militia "Bill Clinton is a murdering psychopath who wants to burn Christian gun owners to death" horseshit that spewed forth from your keyboard was, in fact, batshit insane.”

Ceded. But it was purposeful. Nothing against herda05. But some comments are just plain wrong.

If I said - Minnesota Twins Nick Punto is the best ball player to ever play the game and he demonstrated that he can out hit Pete Rose in 2004, I’d be called on it.

On the Waco thing - First - presumption that you’re just going to sit there. Secondly, that the government is going to be allowed to bring that kind of force to bear in any location at any time regardless of location, bystanders, logistics (the Davidian compound was out in the middle of nowhere, big big difference between that and an urban or suburban setting - mouseholing for one, but I digress). Third - what the “lesson”? That we should STFU and do whatever the government tells us? That we should let those kinds of operations pass? Hell, people should have gotten axed for it. Same as 9/11. Just on general principle. Who payed? Fourth - we’re supposed to agree to the clarity of the lesson based on the spectacle there rather than recognizing the greater complexity - not only of the issue - but of that situation alone.
Fifth - “And others”?

I get what herda05’s trying to say, and within those very limited confines, sure, there are gun nuts, they’re are nutjob separatists and white supremacists, etc, running around in the backwoods thinking they can secede from the union. Had that been rendered more generally, I suspect I wouldn’t have flown off the handle. (Again, sorry herda05)

But man, holding up perhaps one of the worst domestic crimes committed by the Clinton administration as some sort of reason to be cowed or learn the uselessness of resisting with force when that right there is actual bloody handed government overreach going on?
Why, ‘cause you like or dislike the guy in office?
So if I said George Bush is a murdering psychopath who wants to burn Iraqi children to death, that’s an ok way to make a (albeit hyperbolic) point about the war then?

Jefferson howled for blood and demanded the tree of liberty be watered with the blood of tyrants (and patriots). He batshitinsane too? (slaves and such aside of course).
I’ll apologise to herda05 for getting my blood up and for the comment itself, but I think the stuff behind it is solid.

“Please. No offense, but you have no idea who I am, what I've done or whom I know.”

S’why I asked. I’m not big on pulling the “expert” card. Especially since I don’t get into who I am and such either. Have a bit of experience myself. But again, perhaps we’re having two separate conversations with attendant preconceptions.

“I'm trying to make the point that it *would never even get that far in the modern US*... barring some event significant enough to tear the nation apart before any insurrection ever took place.”

Ok. I’m happy to cede that it would never get that far in the modern US if we’re speaking of the many non-force avenues of redress available.
But in terms of significant events - Would martial law qualify? Folks being shipped off to camps? Massive visible corruption? Public beatings? Stuff like that?
Again, on the localized scale in the U.S., it’s already happened, there have been organized successful armed revolts and major (domestic) attacks.
posted by Smedleyman at 7:59 PM on March 18

“The idea that we live in a nation where people feel they *need* guns is enough to turn my stomach.”

Funny. I agree, but from another meaning.
posted by Smedleyman at 8:02 PM on March 18 [1 favorite]

Why do you think the second amendment needs to be amended? One Supreme Court case coming down definitively on it is more than enough. What's the point of amending the constitution?

Well, I'm not a legal scholar, and my understanding of the history of the second amendment and it's consideration by the Supreme Court is somewhat limited. Given how infrequently the Supreme Court has visited the second amendment compared to the first amendment, perhaps you are right.

That being said, I thought that most of the Supreme Court interpretations of the second amendment were defined as narrowly as possible, and there is still some ambiguity there. Certainly, even if the Supreme Court feels that they have closely defined all aspects of the second amendment, it seems to be the most politically contentious, and often badly interpreted by local, state, and federal legislatures.

Also, I'm a little puzzled at the Miller decision, since it seems like the Supreme Court recognizes the individual right to bear arms of a type that would be used by "a well regulated militia", but then they don't support his right to bear a shortened shotgun, despite the use of such by military forces of the day (last major conflict) in trench warfare.
posted by BrotherCaine at 8:04 PM on March 18

Clinton had been president for all of three months when Waco happened. Most of the people in Justice and the FBI below Reno had been hired during the previous 12 years of Republican administrations. It is the purest bullshit to call Waco "Clintonian". It was really just a continuation of the law enforcement mindset that was also at work during the Randy Weaver siege, which many people seem to forget occured when Bush was still in office.
posted by rfs at 8:05 PM on March 18 [1 favorite]

The idea that we live in a nation where people feel they *need* guns is enough to turn my stomach.

But wanting guns is okay right?
posted by BrotherCaine at 8:09 PM on March 18

Wait, wait. We are all operating under the idea that members of the U.S. Armed Forces would willingly take up arms against their own people en masse? Not just Branch Davidian style, but a real battle? Hmm. I wonder. I don't think that's how coups de'tats generally happen.

Not that I think that's going to happen, but then I think:
"Americans could never fight the US government and so they have no need for guns so let's ban them" is sort of a ridiculous argument too. I mean, let's ban condoms because you certainly don't NEED those and we'll never defeat mother nature. While we're at it, let's just ban everything that we don't need and that is sometimes dangerous to us. Yup, you heard it here first: Fuck Ice Cream.
posted by TomMelee at 8:19 PM on March 18 [1 favorite]

Ceded. But it was purposeful. Nothing against herda05. But some comments are just plain wrong.

herda05 is exactly right, though. Waco is a perfect example of what happens when people think that their little guns will protect them from the government. It happens every single time somebody believes that bearing arms gives them some kind of immunity to the government. That you so clearly wish it were otherwise doesn't change that.

Clinton had been president for all of three months when Waco happened. Most of the people in Justice and the FBI below Reno had been hired during the previous 12 years of Republican administrations. It is the purest bullshit to call Waco "Clintonian". It was really just a continuation of the law enforcement mindset that was also at work during the Randy Weaver siege, which many people seem to forget occured when Bush was still in office.

We're not generally talking about big fans of critical thought here.
posted by Pope Guilty at 8:20 PM on March 18

"Americans could never fight the US government and so they have no need for guns so let's ban them" is sort of a ridiculous argument too.

Strawmen burn pretty, don't they?

The point isn't that guns should be banned because they won't protect you from the government, as you know but mendaciously insist otherwise, it's that "we need guns to protect us from the government" is a stupid, shitty argument.
posted by Pope Guilty at 8:22 PM on March 18 [1 favorite]

Well, since "A well regulated militia, [is] necessary to the security of a free state," then, "the right of the people to keep and bear arms, shall not be infringed."

I hereby inaugurate the first annual meeting of the NIEDA, or National IED Association. Obviously, restricting the regulated militia from owning modern anti-tank and anti-personnel weapons reduces the effectiveness of said militia, and therefore endangers the security of our free state.

The militia, therefore, have the Constitutional right to possess weapons which can be used against an aggressor armed with modern munitions themselves. IEDs fit that bill perfectly: they're small, portable, cheap, easily assembled and can cause tremendous damage to occupying forces. We will not stop in our quest until every God-fearing American is free to defend their homes with a Constitutionally-guaranteed supply of high explosives.
posted by Avenger at 8:52 PM on March 18 [1 favorite]

“It happens every single time somebody believes that bearing arms gives them some kind of immunity to the government.”

Um, that’d kinda be why I get pissed off. Folks spout this “every single time” and “everyone” and “never” nonsense.
I’ve posted like, y’know, links. To sort of show that people in - for example - Athens sucessfully resisted the government.
So that’d be an example of it not happening every single time. And I posted other examples.
And cited myriad tactical situations where a few motivated guys took out armored columns and the like.
I’ve pretty much knocked down those arguements.
I’ve shown you - IN REALITY - where it’s been actually done. Posted the links. Cited.
People keep repeating the same “no one ever” and accusing ME of denying reality.

You want to argue the rednecks with beer bellies and a few shotguns can’t do it - ok. I agree whole heartedly. But people have used firearms to protect themselves from the government.

Now, allow me to say - do I think this is the only, or even the strongest argument for gun ownership?
No.
I prefer to argue on principle and against rescinding any of my rights given the past history of how hard it is to work to get any of them in the first place.

But people keep saying “never” and I’ve shown you it’s happened. And I keep getting “never” again.
I feel like Gallileo. I’m not arguing about whether God created the universe or not, I’m just saying look! there are moons around Jupiter.

And people keep telling me there aren’t and they don’t have to look through the telescope to know that.


“It is the purest bullshit to call Waco "Clintonian"”.

Would that be the same Bill Clinton that claimed sitting presidents are immune from lawsuits? (Clinton v. Jones) The same Bill Clinton that violated FISA, okeyed the government spying on your financial records, introduced the Clipper Chip, that former ACLU legislative director Laura Murphy described as the most wiretap friendly administration in history, dismissed Jocelyn Elders for suggesting drug legalization be studied, embraced the mandatory life sentencing “three strikes” law, forced people in public housing to sign leases that include a standing consent to have their apartments searched for drugs and weapons at any time (here in the Robert Taylor homes), that Bill Clinton?
The guy who doubled the number of Border Patrol agents required along the border with Mexico to one agent every quarter mile by 1999? The Bill Clinton who started extraordinary rendition as policy with Ahmed Osman Saleh in the Albanian capital in July 1998?
The Bill Clinton who expanded the powers of the BATF, reinstated the federal death penalty and limited appeals? That guy?
Yeah, gee, he was swell.

Bush's actions do not justify or mitigate Clinton's, any more than Clinton's justify or mitigate Bush's.

Waco was wrong whether it happened under Bush, Clinton, Carter, whatever. ‘Course he could have, y’know, fired someone or something. Maybe not used active duty military on the site. Maybe put a little more oversight into conduct of law enforcement, y’know, where they failed to disclose during litigation and obstructed the special counsel’s investigation. Stuff like that.
But that’s my point - the administration doesn’t matter. Same kind of thing goes on.

Seriously, y’all don’t expect, if some mayor is using his cops to screw people over, beat them, deprive them of their voting rights, and they shoot the cops in the course of redress - you don’t think if it makes the news those people aren’t going to be exonerated? Whatever administration it is?
You think they’re going to back the mayor and his sheriff or whatever and flood the streets with tanks and the air with gunships? Seriously?
And no one will ever know? And we can't possibly fight them , so we should just roll over in the first place?

Wonderful philosophy you have. May you live forever.
posted by Smedleyman at 9:06 PM on March 18 [6 favorites]

Well, here's an argument: even if legal firearms could not possibly outfit an insurrection, what about the intangible martial and survival skills learned in hunting and arms training? After all, an insurrection might flood the streets with previously restricted weapons in short order; training, however, takes years.

Is it ideal that the police, the military, and other agents of the state hold a complete monopoly on training with firearms, such that anyone wanting to learn and hone these skills would have to join their ranks?

In a society where only elite state agents have arms and combat training, is a true popular uprising possible, or only military coup? If the latter, therein lies one possible argument for the second amendment - that it democratizes knowledge of firearms, rather than firearms themselves.
posted by kid ichorous at 9:10 PM on March 18 [4 favorites]

Waco is a perfect example of what happens when people think that their little guns will protect them from the government.

waco is a perfect example of what happens when self righteous assholes decide that they've got the law and guns on their side and fuck any innocent people who happen to get in the way

that you're even willing to call those who object to this massacre "batshit insane" is what's really batshit insane

decent people remember waco, and remember it as the government caused catastrophe and criminal act it was

obviously, you're not a decent person

the worst part, if those people in waco had been tased or if they'd been gay, you'd have been all beside yourself protesting the oppressive government treatment of them

what sickening hypocrisy and idiocy

oh, and clinton should have been impeached - not for monica, but for waco
posted by pyramid termite at 9:12 PM on March 18

I hereby inaugurate the first annual meeting of the NIEDA, or National IED Association. Obviously, restricting the regulated militia from owning modern anti-tank and anti-personnel weapons reduces the effectiveness of said militia, and therefore endangers the security of our free state.

Well, continuing in the vein of democratizing the knowledge of firearms, which is scarier to you:

A population where everyone has sufficient knowledge to construct an IED? Or one that has no idea?
posted by kid ichorous at 9:23 PM on March 18

I got jumped by three guys near a club one night on Smith Hill in Providence. One guy pulled a knife. While I was backing away from him, his friend helpfully crushed my glasses into my left eye socket with his fist. I dove onto the hood of a friend's car and he sped off with me clinging to it.

One night I saw my neighbor beating a dude senseless in the street with a bat. It took the cops a half hour to get there.

One time I was walking to the corner store in Providence's Fox Point neighborhood to buy smokes when a carload of dudes pulled into the driveway in front of me, piled out of the car, and commenced to slap the shit out of me. For no discernible reason. (Once again, my glasses went bye-bye.)

There have always been thugs. I feel like I have a right to defend myself from them, not merely to report their offenses against me.
posted by popechunk at 9:30 PM on March 18 [1 favorite]

The militia, therefore, have the Constitutional right to possess weapons which can be used against an aggressor armed with modern munitions themselves. IEDs fit that bill perfectly: they're small, portable, cheap, easily assembled and can cause tremendous damage to occupying forces. We will not stop in our quest until every God-fearing American is free to defend their homes with a Constitutionally-guaranteed supply of high explosives.

I think the obstacle to your neighbor owning an IED is that most wouldn't want to. Just like, my roommate could probably kill me in my sleep, but I have to hope that he just won't go crazy and do this. If I don't post in the future, I was wrong.

Anyway, if people want a decent amount of explosive power coupled with certain weapons, power to them.

Oh, and as a member of the military, are you sure I'll be firing at you? We're sworn to protect the Constitution (so, yes, we do tend to venerate it) from all enemies foreign and domestic. If a true abuse of power occurred that caused popular revolt, the military would follow suit and start to fracture. Some will go with whatever ruler is nominally in charge, others will leave, and others will fight on behalf of popular will or other factions.

How things proceed on the local levels could prevent a federal government from applying the military to quash an uprising.
posted by Lord Chancellor at 9:35 PM on March 18

“Waco is a perfect example of what happens when people think that their little guns will protect them from the government.”

Pope Guilty you going to keep up the personal attacks after my apology, or what?

I think Waco was an egregious violation of civil liberties and an example of horrific execution of what was one of the most important items on the domestic agenda for Clinton.

But ok. So yeah, just sit there and let the government bust on you.
Say, cops are the government, aren’t they? So you let them beat on you? You let them beat up your kids?

Oh, no, wait. You’d bring a lawsuit. You tell someone. Yeah, ok.

What happens if people already know?
What happens if it’s live on television for 50+ days and people see you and your children killed - and no one does a damned thing?
And no one is sent to jail for it. Or fired. And in the course of your lawsuit the FBI mishandles key evidence and the prosecutor is charged with of obstructing the investigation.

But I mean it’s not just Waco specifically.
We see examples of police brutality, corruption, abuse, countless examples of government malfeasance on a variety of levels and those in authority getting away with it on Metafilter alone.

I don’t want to boil it down to jingoism like “better to be convicted by 12 than carried by six” but I was at the airport a bit back and they wanted to search one of my kids.
One of the security guys had this plan where he was going to take my little girl into a room and search her.
Uh, uh. Yeah, I’m coming with you (I said).
They didn’t want me to go with him.

Now that there is one of those cusp-type moments.
I’m sure as hell not going to let some guy lay his hands all over my child just because he’s got a badge.
Are civil there ways to deal with such a matter? Yes. And I took them.

But had it been pushed to the wall would I have used force as an absolute last resort (exhausting all reasonable avenues of course, hell, I’d walk from the airport and miss the flight first, no problem) - yes, I would.
There is no way, no amount of money, no time in prison that can UN-molest my child.

But again, on principle, in the first place, I refuse to give the state a monopoly over life and death so I oppose the death penalty and I’m pro-choice. I refuse to give the state a monopoly over my protection or that of my children so I’m pro-gun. There are many places where the police cannot get, or cannot get to in time. Or they, or their bosses are the perpetrators.

It’s not much consolation that after the fact, they’ll pick up the bits and punish the offender (and hell, that’s not even guaranteed - the judge in the Waco trial said the government had no responsibility to rescue the people in the fire - and it’s been ruled (elsewhere) the police don’t HAVE to help you).

But if we’re talking Waco - just how did gun control folks bring justice to the perpetrators for the 53 people, 21 children and two pregnant women?
What was the redress for negligence on the part of the government, not having fire fighting equipment on the scene, all the failures and interference?

Yeah. It’s trite. But Waco is a perfect example of what happens when people think that their little laws will protect them from the government.

And y'know, I didn't want to get into this for just this reason. There are some very interesting, useful and reasonable arguments to be had over the main issue here. And hell, my fault too for getting sidetracked. Sorry about that Law Talkin' Guy. Hubris to think I could clarify and not get muddy.
posted by Smedleyman at 10:38 PM on March 18 [4 favorites]

BTW there have been several posts on Slate's law blog Convictions about Heller.
posted by dopeypanda at 10:52 PM on March 18

Many interesting points here...

1.) A new constitutional convention is a great idea. It would generate interest in politics and law rather than in sports, investment banking, reality television and recreational drug use. Plus it would have to be ratified. It would take years.

2.) Guns are an increasing social problem. As school and mall rampages increase the tolerance of the public for firearm ownership decreases. Pro-gun advocates would be wise to consider strategies for getting out in front of this problem before public opinion turns on them to the point where a constitutional amendment is widely supported.

3.) Waco is an example of what happens when crazy people violently oppose law enforcement authority. The civil rights movement is what happens when reasonable people oppose crazy government. Waco had fewer deaths and their main purpose was prevent warrants from being served. The main purpose of the civil rights movement was to compel legal authorities to enforce the law.

4.) 10% of our population is in jail. The police are out-financed and out-manned. The fastest way to protect 2nd amendment rights and reduce violence is to legalize all victimless crimes. The police would then be free to focus their resources on thugs.
posted by ewkpates at 6:44 AM on March 19 [1 favorite]