Meanwhile, we can't even get a compromise bill on background

[Lord Jim]

To draw an analogy...

If I were to say to my son:

"Jimmy, you have two choices..."

"You can either go to bed without fussing, or you can be picked up by a Nazgûl and dropped on Mount Doom..."

I would be presenting a false choice....

Because while my preferred course of action, "go to bed without fussing" would be a real one, the alternative I gave:

" be picked up by a Nazgûl and dropped on Mount Doom"

Doesn't exist; it's imaginary....

Just as "a right of uninfringed gun ownership" is imaginary...

[Guinevere]

"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 purpose of the second amendment is to provide a citizen bulwark against over throw of a legitimate government -the security of the free State - so that the rights of the citizenry guaranteed under the Constitution and the laws are protected. That purpose has not much relevance in the US in the 21st century (although some might believe differently). It has very little to do with personal self-defense, but has been co-opted by the NRA and supporters and made to appeal to that concept as a way of expanding the scope and reach of the amendment, and to make it appear more relevant than it actually is, and to appeal to personal emotion rather than actual purpose or public policy.

And, ask the person on the street what "shall not be infringed" means and 9 out of 10 will tell you it means a virtually unrestricted right to own guns, for any purpose. I.e., in the land where where perception is reality, the unicorn lives.

(Edited to add more content)

[Guinevere]

Therefore, based on my answer re:policy above, there is no longer a valid public policy reason for the 2nd A.

And if guns were a strictly regulated privilege, not a right, I suspect there would still be enough in the hands of legitimate gun owners who complied with the regulations to satisfy any public policy need.

See how simple that was ....

[Econoline]

Jim, it looks to me like you are being rather obtuse, or at least not particularly acute. I can understand Sue's question perfectly well. It's a hypothetical situation, not a real-world choice.

Try it this way: let's say the Second Amendment had never existed. (The Founding Fathers had a collective brain fart and simply forgot about it in all the confusion back then.) If it were being proposed today, would it still be necessary? a good idea? a bad idea? in need of different wording/rationale/limitations from the Amendment that actually was written back in the 18th century?

Or even better: let's say the leaders of some newly independent country, the Republic of Jimmistan, came to you* for advice regarding what would be necessary to include in the new constitution they were writing. What, if anything, would you tell them to put in concerning weapons--and why? Considering there is a much bigger difference now (compared to the 18th century) between the weapons available to the military and the weapons available to civilians, would/should there be any restrictions on specific types or broad categories of "arms"? Considering how much confusion and disagreement it has caused here and now, I presume you would not just tell them to say "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."



*(I imagine the Jimmistanians coming to America looking for Ronald Reagan but finding Lord Jim instead--the way the aliens went looking for for the original starship captain in Galaxy Quest, but found the Tim Allen character, the actor who played him, instead. Everybody here HAS seen Galaxy Quest, haven't they? If not, why not? There's no excuse.)

[Sue U]

"a right of uninfringed gun ownership"....

Which does not exist...

It's like unicorns or centaurs, or The Tooth Fairy...

There is NO SUCH THING...(at least not under US Constitutional law)

Have you actually read the Second Amendment? You know, where it expressly guarantees that "the right of the people to keep and bear arms shall not be infringed"? IT IS A GODDAM CONSTITUTIONAL GUARANTEE. To say it "does not exist" and "there is no such thing ... under US Constitutional law" is either a denial of the actual existence of the Second Amendment or an indication of reading comprehension difficulties so severe that you should really consult a neurologist immediately.

I'm typing slowly, so that you might understand: The entire history (limited as it is) of Second Amendment litigation has been an exercise in determining whether any regulation has the effect of infringing the right to keep and bear arms (and tangentiallly, whether the Amendment applied to the States at all, rather than just the Federal government). That's exactly what would make such a law unconstitutional. It is not to say (and I have never said) that under the Second Amendment there can be no regulation at all (although some in the gun lobby certainly take that position), but that whatever regulation there may be CANNOT INFRINGE "THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS."

In any event, all of that is irrelevant, because the question is: What is the public policy justification that requires such a "constitutional right" in the first place? Why is it necessary that the government be presumptively prohibited from infringing the people's right to keep and bear arms? What purpose is served or policy advanced that would be thwarted by making gun ownership a restricted and regulated privilege instead? Guin and Econoline have readily identified the issue. Why can't you?

[oldr_n_wsr]

Why is it necessary that the government be presumptively prohibited from infringing the people's right to keep and bear arms?

At the risk of going around in circles....
Because the founding fathers saw it to be important enough to include it in the constitution (or at least ammend it). Their resoning may have been to guard against some force that may oppress the people, be it a federal governement, a state government, a town governement, a foriegn force or even a person(s) looking to do someone harm.

it maybe lame but that's what I came up with

[Lord Jim]

Sue, now you're playing so dumb that you're really starting to piss me off....

Have you actually read the Second Amendment? You know, where it expressly guarantees that "the right of the people to keep and bear arms shall not be infringed"? IT IS A GODDAM CONSTITUTIONAL GUARANTEE. To say it "does not exist" and "there is no such thing ... under US Constitutional law" is either a denial of the actual existence of the Second Amendment or an indication of reading comprehension difficulties so severe that you should really consult a neurologist immediately.

Yeah, and the 1st Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And since it says "No law" it's completely Unconstitutional for Congress to pass any law prohibiting the free exercise of religion or abridging the freedom of speech right? That's why it's completely legal to manufacture and sell meth if your religion requires it, and you can buy kiddie porn in any 7-11...

Oh, wait...

Here's the relevant portion of the Heller decision (I'll type it slowly so you can understand it:)

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

http://www.law.cornell.edu/supct/html/07-290.ZO.html

Then again, maybe you're not play dumb....

Maybe you are genuinely so ignorant of the way our system works that you are unaware of the fact that what a Constitutional right "is", it's parameters and limits, is not based merely on the words that appear in the text, but on what the Supreme Court of the United States determines that text to mean, and that right to be....

If this is the case, then you have no business practicing law; I would suggest pastry chef or music critic as possible career alternatives....

Or perhaps you are so delusional on this particular subject that you simply can not think clearly about it. If this is the case, then I would suggest that you seek the help of a trained medical professional; I lack the relevant training, certifications, and ability to prescribe the needed pharmaceuticals to be able to help you.

ETA:

At this point, you are engaging in nothing but pure sophistic, willfully obtuse word games, liberally sprinkled with snotty insults; you can take your sneering condescension and your grossly unjustified sense of faux superiority and shove them up your pompous ass.

[Sue U]

Why do you keep bringing up the Second Amendment when it has absolutely no relevance to the question? It can only be a diversion to avoid providing an actual answer. The question is: [see previous posts].

As for limitations on constitutional rights:

Here's the relevant portion of the Heller decision (I'll type it slowly so you can understand it:)

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Your emphasis is misplaced, because there has never been any question whether any "right" -- constitutionally guaranteed or not -- is "unlimited." The question in all such cases is what governmental limits run afoul of the constitutional guarantee. It is the next sentence that illustrates what is blindingly obvious: the Second Amendment does not guarantee the right "to carry arms for any sort of confrontation" -- e.g., gang shoot-outs or armed insurrection. So what? That's not even at issue.

Yeah, and the 1st Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And since it says "No law" it's completely Unconstitutional for Congress to pass any law prohibiting the free exercise of religion or abridging the freedom of speech right? That's why it's completely legal to manufacture and sell meth if your religion requires it, and you can buy kiddie porn in any 7-11...

The issue of "free exercise" and drug use was addressed by J Scalia's opinion for the Court in Employment Division v. Smith -- a decision I happen to agree with -- holding that laws of general application are constitutional even if they might infringe on what may be a religious practice. (No surprise, since enforcement of laws prohibiting polygamy had been upheld on virtually the same grounds more than a century before.) That ruling was then undermined by Congress with the so-called Religious Freedom Restoration Act,* which subsequently lead the Court to a contrary result in Gonzales v. UDV (the name of the case is longer and in Portuguese but that's close enough). I think the latter case presents substantially greater constitutional problems than did the first, but that's a subject for another thread.

Similarly, a right to free speech obviously does not guarantee a right to incite a riot, or to conspire criminally, or to have a rock concert in a hospital zone.

Again, so what?


* Significantly, RFRA was held unconstitutional as applied to State laws, but upheld with respect to federal law because Congress has the power to limit itself in the scope of its own laws.

[Joe Guy]

I believe the popular reasoning for "gun ownership needs to be a constitutional right rather than a regulated privilege because..." People don't trust the government. Many would argue that making gun ownership a regulated privilege would be the first step toward eventually taking away that privilege.

That's why the 2nd amendment isn't going away any time soon.

[Econoline]

I believe the popular reasoning for "gun ownership needs to be a constitutional right rather than a regulated privilege because..." People don't trust the government. Many would argue that making gun ownership a regulated privilege would be the first step toward eventually taking away that privilege.

If that's really true, why wasn't there ever a constitutional amendment passed (or even proposed, AFAIK) protecting automobile ownership?? Or home ownership?? (Just sayin'...)

[Rick]

One has to be able to pass a test to drive, not so for owning a gun.

Although now most states require passing a written exam to obtain hunting license (past a certain birtdate in most states).

[Liberty1]

One has to be able to pass a test to drive, not so for owning a gun.

But not to own a car, only to drive on public roads.

Although now most states require passing a written exam to obtain hunting license (past a certain birtdate in most states).

Which has zero to do with the 2nd ammendment.

[Joe Guy]

I believe the popular reasoning for "gun ownership needs to be a constitutional right rather than a regulated privilege because..." People don't trust the government. Many would argue that making gun ownership a regulated privilege would be the first step toward eventually taking away that privilege.

If that's really true, why wasn't there ever a constitutional amendment passed (or even proposed, AFAIK) protecting automobile ownership?? (Just sayin'...)

Probably because most people don't see automobile ownership as an unalienable right.

Our forefathers didn't, otherwise someone like Thomas Jefferson might have proposed, "A horse being necessary to travel freely throughout the state more quickly than on foot, the right of the people to own horses shall not be infringed."

[Rick]

One has to be able to pass a test to drive, not so for owning a gun.

But not to own a car, only to drive on public roads.

Although now most states require passing a written exam to obtain hunting license (past a certain birtdate in most states).

Which has zero to do with the 2nd ammendment.

Yer point is?

ETA: I guess I should have actually posted: that is true but I don't care I enjoy posting non sequiturs...

[Sue U]

Probably because most people don't see automobile ownership as an unalienable right.

Our forefathers didn't, otherwise someone like Thomas Jefferson James Madison might have proposed, "A horse being necessary to travel freely throughout the state more quickly than on foot, the right of the people to own horses shall not be infringed."

/fixed.

[Sue U]

Maybe you are genuinely so ignorant of the way our system works that you are unaware of the fact that what a Constitutional right "is", it's parameters and limits, is not based merely on the words that appear in the text, but on what the Supreme Court of the United States determines that text to mean, and that right to be....

You should probably take that up with Justice Thomas, not me.

[Crackpot]

Jim what she is asking is a question completely divorced from the reality of the law in the United States. She is asking a "what if" question in this case "what if there was no second amendment?" Personally I don't see the point of this particular excercise (other than the blindly obvious "the second amendment isn't an absolute necessity for a free society") but that doesn't mean that she doesn't have one.

[Liberty1]

Yer point is?

That you had no point.

[Joe Guy]

Probably because most people don't see automobile ownership as an unalienable right.

Our forefathers didn't, otherwise someone like Thomas Jefferson James Madison might have proposed, "A horse being necessary to travel freely throughout the state more quickly than on foot, the right of the people to own horses shall not be infringed."

/fixed.

I was technically correct because James Madison is "someone like" Thomas Jefferson...

[Sue U]

Jim what she is asking is a question completely divorced from the reality of the law in the United States. She is asking a "what if" question in this case "what if there was no second amendment?" Personally I don't see the point of this particular excercise (other than the blindly obvious "the second amendment isn't an absolute necessity for a free society") but that doesn't mean that she doesn't have one.

It's not a "what if" question, it's a "why is" question. The point is to consider why, as a society, we do what we do, and whether things should be done differently. It is fundamental to successful self-governance that we undertake a constant review of public policy issues to determine what our goals are, whether the underlying assumptions are correct, whether the policies adopted are effective, and whether they conform to foundational principles. This is not an exercise in speculation, it is an examination of a serious political question.

I was technically correct because James Madison is "someone like" Thomas Jefferson...

True, but much shorter.