Ah, the Heller decision. One of Scalia’s most ridiculous originalist rulings.
Frankly I wouldn’t consider that a particularly good bit of jurisprudence, but that’s just me.
Edited by archonspeaks on Mar 22nd 2019 at 11:55:35 AM
They should have sent a poet.
What are your thoughts on the core ruling that it's an individual right?
Well, for starters I don’t believe it should be a right at all. We’re one of maybe three countries with an explicit right to arms, plenty of countries have high firearm ownership rates without it being a right. There’s no evidence making ownership a right makes it any more or less restricted, and plenty of evidence it makes any form of control politically intractable.
That said, I think the ruling is a little dubious because it switches from a broad, non-literal view on the militia clause to an ultra-literal view on the “bear arms” part, while citing literalism the whole time. By the ruling you have the right to own any weapon you can physically carry in your arms, meaning theoretically you should be allowed to own anti-aircraft launchers and emplaced heavy weapons.
Edited by archonspeaks on Mar 22nd 2019 at 12:34:12 PM
They should have sent a poet.
>broad, non-literal view on the militia clause
how so? To me, the reading that the militia clause announces a purpose but doesn't really change what the keep and bear arms clause means seems pretty literal to me.
![[up]](https://static.tvtropes.org/pmwiki/pub/smiles/arrow_up.png "[up]"){kind=icon}
At the time of writing, the militia was more or less the whole military. Combine that with the fact that it’s specifically stated to be a “well-regulated” militia, and most scholars agree that it’s basically a national guard-type setup that’s being referenced. From a strict originalist perspective that’s at odds with the ruling’s assertion that every member of the public is also by default a member of the militia.
Of course, as with many of Scalia’s opinions, literalism is only really applied when it serves a purpose. This could be called hypocritical, but if you understand that Scalia is a partisan rather than an originalist it makes sense.
Again, I’d say there’s really no reason for firearms ownership to be an explicit right. There’s no evidence that it not being a right would impact ownership, and it would make it far easier to regulate.
They should have sent a poet.
> At the time of writing, the militia was more or less the whole military. ... at odds with the ruling’s assertion that every member of the public is also by default a member of the militia.
I disagree, consider for a moment that the fifth amendment states "land or naval forces, or in the Militia" clearly indicating that the Militia isn't the military.
People laugh at In Kennesaw's law says that "every head of household residing in the city limits is required to maintain a firearm." However, it seems very in keeping with the 1792 Militia act.
Although in a way, it seems a very Swiss way of doing things. In another universe perhaps.
That said, regardless of what the militia means, my argument is that you could delete the militia clause and have legally the same thing.
>Again, I’d say there’s really no reason for firearms ownership to be an explicit right.
What's interesting to me is finding a solution to the problems while keeping the restriction that firearms ownership (and even public carry) is a right. {It's also more realistic for what can get accomplished practically I think} Like a sort of Self-Imposed Challenge.
Yeah, that’s not really in disagreement with what I said. The “militia” is basically the equivalent of today’s National Guard. Following a strict literalist view, all gun owners should have to comply with the monthly and yearly training requirements of the National Guard, under the “well regulated” part.
That’s a little drastic though, and the point I’m making here is that the ruling in Heller is hypocritical in its reading of the constitution to justify private gun ownership. The whole problem is that it follows such a strict literalism on “keep and bear arms” that it suggests you should literally be able to keep any kind of arms you can bear, but throws literalism out the window when it’s inconvenient.
Now this just makes no damn sense whatsoever. Why should we impose that challenge on ourselves? Can you think of one good reason for firearms ownership to be a right? As we can see in plenty of other countries, it not being a right is in no way a barrier to ownership, and it would make it significantly easier to regulate. I’m not necessarily opposed to open and concealed carry, as I carry myself pretty regularly, but the idea you’re going to defend yourself as a civilian with a gun you’re carrying around is pure bullshit so there should be caveats.
I’m in no way anti-gun, far from it. I’d be pretty unhappy if I had to turn mine over. That said, I’ve seen exactly what a gun can do to someone so I know just how dangerous they are, and functioning societies regulate things that are dangerous.
Edited by archonspeaks on Mar 22nd 2019 at 1:47:25 AM
They should have sent a poet.
Who Am I?
The 2nd amendment is an historical relic of the day when fully provisioning a large enough professional army to defend the country from attack was considered impractical.
"We learn from history that we do not learn from history."
Organized Canine Bureau Special Agent
There's a sting op as part of an AJ documentary that One Nation was seeking support for pro-gun right advocates in Australia.
"Exit muna si Polgas. Ang kailangan dito ay si Dobermaxx!"
In the name of being honest
NRA wanted to drive up gun violence in Australia to undermine gun safety advocates in the US who use it as an example of successful reform, basically.
Echoing hymn of my fellow passerine | Art blog (under construction)
A California judge just blocked their magazine capacity limit. [1]
The argument seems to be that a capacity limit impacts the ability of people to defend themselves, and that a hi-cap magazine constitutes a “bearable arm” and is therefore federally protected.
They should have sent a poet.
I'm sorry Tien, but I must go all out.
Yeah, you need all those bullets for if you get attacked by multiple wolf packs at the same time. Or if you're being oppressed by a huge mob of innocent, terrified civilians.
Edited by PushoverMediaCritic on Mar 29th 2019 at 8:42:38 AM
Far as gun restrictions go, magazine capacity seems to be one that I'd generally consider low return on investment.
I think mag caps are one of the ones you could trade on in exchange for something like universal background checks. It would be nice to have a cap, but isn’t critical.
They should have sent a poet.
With today's technology, background checks can be fast and easy. However, they are mostly useful for weeding out the already convicted criminals. I think that there are serious privacy concerns if they include more useful information (ex. mental health). I'm also not sure that we should be able to take away a right for anything less then being convicted of a serious crime.
If you can be denied a drivers license for it you should be denied a gun license for it, and then some. Full stop.
They should have sent a poet.
Can you expand on that thought?
You can be denied a drivers license (or issued a modified license with lower privileges) if you have a condition that makes you mentally or physically unfit to drive. Given the individual risk factor posed by guns, particularly for things like suicide, the same general metric should be applied. If you’re a danger to yourself or to others you shouldn’t be allowed to own dangerous weapons, for what should be hopefully obvious reasons.
They should have sent a poet.
The problem is that unlike with cars, where you can deny them the ability to drive without denying their freedom of movement, there is a much closer coupling between denying a license to own a weapon and their second amendment rights.
No right is unlimited. We already deny people their 2A right to own machine guns and rocket launchers in the name of public safety, just like there are caveats to every right.
If you pose a danger to yourself or to others, your ability to own weapons should be restricted. There’s jurisprudence that supports the restriction of rights for safety concerns, and guns are certainly a safety concern.
Edited by archonspeaks on Mar 29th 2019 at 10:44:57 AM
They should have sent a poet.
Saying for a moment that you need to design such a law to pass strict scrutiny, (It must be justified by a compelling governmental interest, be narrowly tailored to achieve that goal or interest, and be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest.) how would you do it?
Well, I think that question is a little bit of a non-sequitur. Neither you or I (we can assume, at least) are legislators, for the purposes of this thread it’s enough to simply describe the intended characteristics of the law without getting into the specific implementation.
In this case, though, we simply need to take advantage of existing systems. The mechanisms for checking a person’s background are all already in place, the system should just be expanded. We already do NICS checks on firearm purchases, it would be very easy to mandate that other databases be checked similar to what’s done for a drivers license, a business license, or any of the dozens of other kind of licenses state and federal governments issue. If a red flag pops up, no gun for you.
Edited by archonspeaks on Mar 29th 2019 at 11:17:17 AM
They should have sent a poet.
Forget for a moment gun rights, do you see any privacy implications on a system like that?
No privacy implications beyond the same implications of every other government database or licensing system, including our existing criminal background check system. After all, it’s basically the same system. An NCIC/triple I check doesn’t become uniquely privacy-violating when it’s done for a gun purchase, those same checks are used for many other purposes.
I suppose if you object to the idea of licensing or background checks for any purpose might see a privacy implication, but that’s by far a fringe position.
They should have sent a poet.
JSTOR: THE RESPONSIBLE GUN OWNERSHIP ORDINANCE AND NOVEL TEXTUAL QUESTIONS ABOUT THE SECOND AMENDMENT
In Heller, the Supreme Court squarely addressed the meaning of the Second Amendment and determined that it “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” This conclusion resolved the longstanding debate over whether the Second Amendment guarantees an individual right, or whether “the right of the people” was premised upon membership in a militia.
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The Court in Heller determined that the phrase, “the right of the people,” unambiguously referred to an “individual right[], not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.” This determination was made through reference to other uses of “the people” in the Constitution, which always refer to an individual right. This understanding has significant implications for the meaning of the rest of the Amendment, particularly the Militia Clause. Since the “militia” consisted of “a subset of ‘the people’—those who were male, able bodied, and within a certain age range,” membership in the militia was an inherent characteristic, not an organizational construct. This means the Amendment’s scope reaches beyond the militia context to “all members of the political community.”21The majority’s understanding of the Second Amendment as protecting an individual right is the key difference underlying its disagreement with the dissent in Heller, and can be seen throughout the Court’s interpretation of each provision
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The Court then addressed the substance of the protected right “to keep and bear Arms.” Eschewing the dissent’s suggestion that “to keep and bear Arms” was a term of art, the majority opinion addressed the phrase as two separate actions: to keep arms and to bear arms.
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Hellerhas determined that the right to “keep Arms” protects, at the least, the right to “have weapons.” It further determined that “to bear” meant “to carry” at the time of the founding, and that “bearing Arms” referred to carrying them for the purpose of confrontation. A question not answered by Heller, however, was the place and manner in which an individual was permitted to “bear Arms”for purposes of self-defense and confrontation.
This is a very well written and interesting article. Particularly part III.
Edited by Soban on Mar 22nd 2019 at 9:53:00 AM