Friday, 23 February 2018

Question on America's 2nd Amendment


1. So we all know America is going nuts.

2. And we all know that in arguing gun rights/gun control, that no-one is listening to anyone else. (See point 1 above.)

3. And we do know that the discussion (such as it is, see point 2 above) is pitted between those arguing that they have a right to guns for self-defence, those arguing they have a right to guns because their god told them so, and those arguing that no-one has any right to guns at all. Ever. But they can perhaps apply to government for the privilege. (Maybe.)

4. So the discussion has more than just two sides (see point 3 above) but has become tightly focussed around a central misunderstanding of the 2nd Amendment of the US Constitution.

5. Because the 2nd Amendment of the US Constitution has never protected what people think it protects (see point 4 above).

6. The 2nd Amendment of the US Constitution does protect "the right of the people to keep and bear Arms, [which] shall not be infringed." So there's that. But the stated constitutional reason for this is neither self-defence nor because your god said so, but because "a well regulated Militia [is] necessary to the security of a free State." That's what the Constitution itself states to be the reason for any right to bear arms at all. And that means that what the 2nd Amendment of the US Constitution actually does protect (see point 5 above) is simply the right of people in pre-Federal America to bring their arms to bear in protection of their particular State (being Vermont, New York, Virginia etc.) And that's it.

7. So (and I'll put this in italics so you can read it again) there is no constitutional right to bear arms in self-defence. And nor, since no reasonable government would be expected nor required to protect a "right to revolution," is there a constitutional right to revolt. (See points 5 & 6 above.)

Q: So I have three questions for you that follow from the above 7 points (and if you aren't a Seppo, just wring your hands for a moment as you imagine that you are):

  1. Would you support a constitutional amendment that does explicitly protect "the right to self-defence and the means thereof."
  2. What would be the odds of such an amendment having the necessary support of two-thirds of the congress-reptiles? And...
  3. If in the unlikely event it did pass, would you expect to see a preponderance of (say) small disposable single-shot handguns instead of automatic weapons with (say) 30-cartridge magazines?

And finally, would you like such a clause in a NZ constitution?

Leave your answers in the comments.

[NB: Both the 2nd Amendment argument above, and the resulting not-unimportant questions, were posed by John McCaskey -- and in much more depth than I have offered. Visit his website here.]

18 comments:

  1. Your reading of the militia clause is incorrect.

    Note that what I am about to explain is not just my individual theory. It is the holding of the U.S. Supreme Court in the Heller vs. DC case.

    * The 2nd Amendement *does* recognize an individual right to bear arms in self-defense. Recognize, not grant: that right is prior to the Constitution and cannot be abrogated by amending the Constitution.

    2. The "militia" of 2A does not include only the organized militia but the *unorganized* militia as well - that is, the entire body of the people in arms. This definition is affirmed by Section 3 of Title 10 of the U.S. Federal code.

    3. In case you think "well-regulated" implies government regulation, that is not right either. In 18th-century English "well-reglated" meant "functioning as designed" - one might speak of a well-regulated clock.

    So, in modern English: "A well-armed and trained population being necessary ton the security of a free state, the right to bear arms shall not be infringed."

    Hope that clears it up for you.

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    1. Eric, your point is covered in the links above. Short answer: The Heller case was only a 5-4 decision, and on that basis hangs the alleged right to self-defence.
      As John McCaskey points out at one of those links, "It would be better if a right to an effective means of self-defence were more plainly stated and not open to much interpretation." And also that it did not hang upon a statement whose explicit purpose is simply to allow the populace to defend its State.
      And hence, my first question, which I note you haven't answered ...

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  2. OK I'll bite, but I can't speak for the US, so these are my answers for NZ:

    1) Would you support a constitutional amendment that does explicitly protect "the right to self-defence and the means thereof."

    Yes, provided the requirements around safe storage capacity and proof of competent use is maintained. All rights come with responsibilities, and if my right to the means of self defense risks your right to life, I have the responsibility to mitigate that risk.(More explanation below)

    2) What would be the odds of such an amendment having the necessary support of two-thirds of the congress-reptiles?

    Not a chance. I'd bet on on a manned mission to the sun before I bet on this.

    3) If in the unlikely event it did pass, would you expect to see a preponderance of (say) small disposable single-shot handguns instead of automatic weapons with (say) 30-cartridge magazines?

    Of course not.

    Some explanations:

    Just like the average person thinks they are an above average driver, the average gun owner (or potential gun owner) thinks they are 1 range session away from being Jason Bourne.

    We have been told (for over a hundred years) that the three most important attributes of a gun is:

    a) Caliber (bigger is better, Dirty Harry used a .44, and if it's good enough for him...)
    b) Rate of Fire (in case I need to lay down "suppressive" or "cover" fire)
    c) Magazine capacity (to cover the rate of fire, obviously)

    You see, Rambo style action movies have left people with a genuinely warped idea of what defensive firearm use actually looks like. It underplays the value of warnings and de-escalation while overvaluing "Shoot first" attitudes, "quick draw" abilities and intimidation.

    We celebrate reckless and "special forces" style use of weapons, and think that that is easy to achieve by your average soccer mom (or teacher?) within a few hours on a gun range.

    In my mind, if you:

    a) prove that you understand the realities of using a firearm safely for defensive purposes,
    b) prove that you can act safely within those constraints,
    c) prove that you can safely keep the gun away from anyone who has not proven points (a) and (b), and
    d) Purchase a firearm designed and optimised for defensive use

    Then you should have the right to own said firearm for self defence purposes.

    If, on the other hand, you want a powerful "toy" to flaunt, leave lying around where anyone can get to it, and handle dangerously, you should have your application denied.

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  3. Pretty sure there is a typo in point 7 about the constitutional right to a revolution.

    I would argue the right to self-defense is one of many "un-enumerated rights" that predate the Constitution and are protected by Article 9 of the Bill of Rights. I would view any law "giving" you that right with suspicion and at best consider it unnecessary.

    Even though self-defense is not the raison d'etre of Article 2, it is a perfectly good reason to retain it. Similarly you might think militias are a good idea but consider repeated school shootings are a good reason to repeal Article 2. The reality is Article 2 exists for sound historical reasons. If you want it changed then you need to do the heavy lifting.

    ReplyDelete
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    1. Re para 1 : No typo; no such right is enumerated.
      Re para 2: you make a reasonable point, but unfortunately none of today's courts would support you.
      Re para 3: It simply does not say what you want it to say, and it hangs now with only that slender thread of a 5-4 SCOTUS majority.

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  4. 3) If in the unlikely event it did pass, would you expect to see a preponderance of (say) small disposable single-shot handguns instead of automatic weapons with (say) 30-cartridge magazines?

    Surely a false dichotomy. Both a single shot and an automatic 30-shot are fairly useless for self-defence for different reasons. Most likely it would be as now, most people get a handgun calibre 9-mm or a 45 of some description, which can be easily carried concealed and has enough shots to make it useful.

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    1. Perhaps it would.

      And perhaps, with an explicit right to self-defence (a right that does not exist in law now, here or in the US) you would see the courts deciding that possessing a certain scale of weapon is indeed supported by that explicit right, but that a weapon above that scale (for most owners) would go beyond that, and might be classified as an objective threat.

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    2. Fully automatic weapons are already banned. Most AR15 type guns are owned for sport purposes. Most killings are with handguns. Rifles are quite bad for mass killing, a shotgun or handgun is better at close quarters. I doubt anything would change in your scenario.

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    3. I'd rather have a shotgun loaded with rock salt, or something. Less chance of missing under pressure, and shooting through the walls to injure or kill your neighbours. (A short one, but probably not a pistol. Two-handed aim...but usable with one hand if necessary)

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  5. The discussion is actually far more nuanced than it seems. When you actually talk about gun control with people, it turns out that they have pretty nuanced views. Some want to ban all automatics; some want to have more rigorous background checks; some (like me) want the police to do their damn jobs--the majority of shooters have lengthy lists of criminal violations that police let slide.

    The problem is, we the people have allowed the conversation to be dominated by a small number of people who are using it to forward their political ends. What's happening isn't a discussion of gun rights, but rather a series of unpaid political ads. These people don't care about anything but getting elected, yet we've submitted to them so completely that we can no longer differentiate between "A politician said..." and "I think that..."

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  6. The first point about America going nuts is overly emotive but its true for some. America has always been full of guns but without mass shootings until relatively recently so its not the guns, its criminals and a few nutters. Something has changed in society to bring about what we see today and that change needs to be faced up to.

    I don't think any change in the practical interpretation of the 2nd amendment is required. Perhaps the American police think that the common law allows people to shoot intruders and I'm fine with that as well.

    Its also clear that the FBI are not doing their job - too busy doing the political thing.

    So I don't see any change is required to anything beyond dealing with nutters when they come to the attention of the police for the first time.

    In New Zealand I'd like to be able to defend my patch and that means if I catch someone in my house at 2am I can use deadly force if I think such is required without having to justify that months later to someone who was not there. I only have a cheap .22 air rifle so I'm not much of a danger to anyone but for me the right to self defence without subsequent debate about what was reasonable is a big deal.

    3:16

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    1. It's not that a change is necessarily required. It's simply that since the Amendment does not say what you want it to say, and since it hangs now with only that slender thread of a 5-4 SCOTUS majority, that change may be forthcoming whether you like it or not.
      Yes, I agree with you that the right to self-defence (and to the means thereof) should be firmly and explicitly protected in law. But they're not.
      And even if they were, it wouldn't necessarily support all the types of gun everybody would like to buy.

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  7. 'pre-Federal America'

    That makes no sense. The constitution was intended to apply to post-Federal America after it was ratified. That's what it's all about. It has nothing to do with pre-federal America.

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    1. In fact, t had everything to do with a pre-Federation America, because in that pre-Federation America the new Constitution needed to be ratified by every State, and each State still thought of themselves as retaining a very great degree of sovereignty within the Federation in which they were agreeing to amalgamate.

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    2. So you're saying that each state that ratified the constitution had no idea what they were doing - that they hadn't read the Constitution or that they hadn't concluded that the Articles of Confederation weren't good enough - that they didn't understand that the future would be different because of the Constitution that they had just ratified? That makes no sense.
      Grammatically and literally the second amendment says that we have the right to bear arms (which the natural law of self defense affirms). There is no requirement for a militia (it's a justification not a requirement which are different things). Read it again and this time carefully apply the rules of grammar and logic and maybe you will come to the same conclusion the courts in America have, time and time again, for over 200 years. And if you still don't agree read the writings of the Founding Fathers and see what they intended.

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  8. We already have the right to use reasonable force to defend ourselves.

    What we don't have, and don't need, is idiotic gun saturation like they have in America.

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    1. If you do not have the right to wield guns the right to self defense is a joke because the criminal probably has a gun. If you do have a right to own guns then how can you possibly prevent gun saturation? (BTW, gun ownership per capita in America is much less than Switzerland)

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    2. In most developed countries, "the criminal" doesn't have a gun because they are regulated and therefore expensive on the black market.

      America has far more guns per capita than Switzerland, and the consequence is the American gun homicide epidemic.

      https://en.wikipedia.org/wiki/Estimated_number_of_guns_per_capita_by_country

      Liberal gun laws/gun saturation is idiotic. No sane country wants to follow in the footsteps of America.

      Delete

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