Does The 2nd Amendment Provide Absolute Protection To Gun Owners?

[DonRocks]

"Gunman Fatally Shoots Self After Killing Journalists on Air, Police Say" by Eliott C. McLaughlin on cnn.com

Sandy Hook Elementary Shooting on wikipedia.com

We've all had this discussion in some form or another, but I'm genuinely interested in hearing peoples' opinions about whether or not the 2nd Amendment provides absolute freedom of gun ownership, or whether that freedom is limited in some form or another due to the wording of the amendment (and not just a "yes or no," but some underlying rationale).

[Al Dente]

The 2nd Amendment on Wikipedia

I'm not someone who feels the Constitution and its amendments are sacred. A 220 year-old document that contains a set of instructions on running our country should be more easily updated than it is. Why are we still adhering to a law that was written in a different time and context? Tell you what, I'll support a more specific amendment that allows citizens to carry a musket in case the British decide to give it another go.

I'm disgusted by the gun culture in our country. It's a national embarrassment. And I can't help but feel there's a link between the mentality of people who fervently support the 2nd amendment and other laws or customs written by rich white men in wigs long ago (i.e. that good ol' confederate flag).

On the other hand, the damage is already well past done. There is nearly a gun for every man, woman, and (too often) child in the US. How can we, at this point, get rid of them?

I often think about how we look back through history and see how dopey we humans look for the primitive and/or ignorant beliefs that we held. The world is flat. Better kill them witches. Sicknesses are some god's vengeance (oops, that one still exists). Gun ownership will be one of those things that people 50 or 100 years from now will look back at and say "WTF?!?"

Stats on gun violence in America

[Mark Slater]

In the first sentence of the 2nd Amendment is the phrase "well regulated". That implies regulations. I don't understand the disconnect between well regulated and the NRA.

[lovehockey]

I condemn what happened today in Roanoke.  That being said, there are tens of millions of responsible gun owners in this country, including many in this area and some who are dear to me.  Two of them I would trust with my life.  Don't paint a broad brush.  There are plenty of gun laws in existence.  Enforce them.

P.S. I have shot everything from a .22 rifle to a .50 machine gun.  I have respect for their firepower.  Do I own one personally?  No.  I know that I need training before I could responsibly own one.  Note the difference.  Yes, there are people who get them by legal means who will use them for harm.  They are in the vast minority.  If the vast majority are doing the right thing, why take that away from them?

The response will be, "Because people use guns for hideous crimes."  I'll point you to John Lott's book, "More Guns, Less Crime".

One of the best explanations I've heard of the 2nd Amendment was that it was established to protect the 1st Amendment.

I apologize if I've overstepped the standards of this board.

[DonRocks]

I apologize if I've stepped over the bounds of this board.

[You haven't in the least - nor has anyone else.]

[farmer john]

I have owned guns since I could count my age on the fingers of my hand and shoot and kill things with them on a semi-regular basis. I do not hunt for amusement (not that I particularly object to it) but varmint control is a necessity if you do what I do for a living. I suppose that makes me "pro gun".

That being said, I agree completely that gun culture in this country is completely out of control and we would be better off with way fewer of them in the hands of the public. This applies to handguns and semi-autos in particular although it is my opinion that if those were taken away the dunces would then turn to rifles as the most efficient alternative for committing crimes against humans.

The problem with regulation is that this cow has been out of the barn for a long time. There are millions of them already out there. Does this make regulation pointless? I don't know. The statement "when guns are outlawed, only outlaws will have guns" can be interpreted more than one way.

[Josh]

I think the Australian experience provides an interesting lens through which to view the issue.

"Here's The Deal with the Australian Gun Control Law That Obama is Talking About" on washingtonpost.com

[dcandohio]

I was at a lovely arts festival recently, and noticed a guy with some kind of large handgun tucked into the waistband at the back of his shorts. No attempt to conceal. Our laws here in Ohio are permissive, I think...open carry is a thing. And, it's easy to get a concealed carry permit. So, what part of the right to support, and perhaps to join, a "well-regulated militia" is possibly served by bringing a gun to an arts festival? It scared me, it angered me, it saddened me. I also got very far away from him, while telling myself that there were probably dozens more like him in the crowd.

When the 2nd amendment was crafted, people had a real fear of threat of attack from the British (and others), and no doubt wanted to assure the ability to cobble together an army if one was needed. So, now, we have a military. We have law enforcement. The concept of "militia" is quaint and outdated. We simply don't need to ask all armed men to assemble in the square to fend off the British.

I am pro-hunting. I know lots of people who hunt and I have eaten delicious kills from those hunts. My own personal experience is that hunters respect guns, take care of guns and WITH guns, and keep guns locked up. The are not hunting with handguns. They are not waiting to be called into militias. I don't have a good legislative way to say "some guns are more safe than other guns," that translates to meaningful gun control. But it's hard to deny that permissive gun acquisition and the sheer quantity of guns around means we are far, far, far less safe. Where is all the evidence of people being MORE safe due to guns?

[Gary Tanigawa]

According to Thom Hartmann, "The real reason the Second Amendment was ratified, and why it says State instead of Country (the Framers knew the difference - see the 10th Amendment), was to preserve the slave patrol militias in the southern states." The article has an interesting perspective on original intent.

"The 2nd Amendment was Ratified to Preserve Slavery" by Thom Hartmann on truth-out.org

[DonRocks]

According to Thom Hartmann, "The real reason the Second Amendment was ratified, and why it says State instead of Country (the Framers knew the difference - see the 10th Amendment), was to preserve the slave patrol militias in the southern states." The article has an interesting perspective on original intent.

"The 2nd Amendment was Ratified to Preserve Slavery" by Thom Hartmann on truth-out.org

I take no sides on this, but I see Hartmann's as a deeply flawed article - granted, it's now 2 1/2-years old.

For example, the fourth paragraph which discusses Dr. Carl T. Bogus's article written for the University of California Law Review in 1998 contains a broken link to that article. However, when clicking on that link, you see that you're actually linking - not to the University of California - but to a website called www.saf.org. SAF stands for "Second Amendment Foundation," a strongly pro-gun rights organization.

Similarly, the fifth paragraph contains a broken link when referring to the "character played by" Leonardo DiCaprio. Both of these paragraphs are rendered moot because of these broken links - not even going into the source used for the fourth paragraph.

The eleventh paragraph mentions "the main concern" of southerners about Article 1, Section 8 of the newly proposed Constitution was that it gave the Federal Government the power to subsume their state militias, ultimately using these militias *against* them. It mentions "Lord Dunsmore," but there was no Lord Dunsmore; his name was "Dunmore." While this may just be a typo, it reflects the general sloppiness of this article.

The author then throws in a few quotes by well-known patriots James Monroe, George Mason, and Patrick Henry, and these quotes take up almost half of the article, but he had already lost me by then. I'll look at it again later when I'm less like a zombie (I got up early, and am still drinking my cup of coffee). I'm learning *so much* from this thread, but this one particular article may not do it for me. I have no feelings pro- or con-, just that it seemed to be dashed off in a hurry, without a whole lot of thought, and I'm not even sure what it's trying to conclude.

The title of the article "The Second Amendment Was Ratified To Preserve Slavery" is one heck of a claim, and I think such a thing merits an entire book, with research and footnotes; not just this little stub of a column with a few quotes, important though they may be. Gary, what do you think I should get out of this article?

I appreciate every single post so far, including Gary's, and am amazed, fortified, and beaming with pride about how intelligently our members are treating this controversial subject. I'm learning a lot, just as I did with the Confederate Flag post, and want to say "thank you" to everyone here.

[Ilaine]

In point of fact, gun ownership in the US is regulated.  For one example, there are background checks before you can buy a gun.  For another example, there are places where carrying guns are prohibited, e.g., courthouses, airports.

I'd like to rephrase the question.  I think what you are really asking is, "what can we do to stop crazy people from killing innocent people with guns?"

Um, well, there's already a prohibition against selling guns to crazy people.  So that doesn't work.  And there's no way to get rid of crazy people, so that doesn't work.

So the real question is "how can we take away guns from everybody so crazy people can't get hold of them?"  And the answer is, you can't.

The Roanoke shooter claims he was motivated by the Charleston shooter.  The Charleston shooter said he wanted to start a race war.  The Roanoke shooter said he wanted to start a race war.  Many shootings and other murders are motivated by extremist ideologies. Stopping political polarization would do more to stop killings than anything else.

As the Dalai Lama says, all humans want to be happy and avoid suffering.  We are all the same.  Recognizing our universal brotherhood would go a very, very long way to ending violence.

The vast majority of Americans who own guns are not violent.  If you demonize them, you are contributing to polarization.

[Bart]

In point of fact, gun ownership in the US is regulated.  For one example, there are background checks before you can buy a gun.  For another example, there are places where carrying guns are prohibited, e.g., courthouses, airports.

I'm not sure if it's really "well regulated" as the NRA has weakened any gun legislation and background checks to the point of them being useless. I mean how well regulated is it when it's much easier to buy a gun than it is to adopt a dog?!!??! (the same dog, who if not adopted could be put to sleep the same day)

Also, a question to the NRA and the members of Congress they have bought and control: If (more) guns are (always) the answer to any problem, why is it that they're banned in the House and Senate chambers and courthouses?

[DonRocks]

I'd like to rephrase the question.  I think what you are really asking is, "what can we do to stop crazy people from killing innocent people with guns?"

[You're free to voice your opinion; you're not free to change peoples' words to your own liking. So this sentence must go if you're going to attribute it to anyone other than yourself.

As your post is written, you're asking *your own* rhetorical question, and you then spend the next six paragraphs meandering, twisting, and turning your own rhetorical question into yet another of *your own* rhetorical questions. Please try and read what people are actually writing, rather than what you think they're writing. There's plenty of space here, and we can always start another topic if you want to change the subject.]

[Al Dente]

Also, a question to the NRA and the members of Congress they have bought and control: If (more) guns are (always) the answer to any problem, why is it that they're banned in the House and Senate chambers and courthouses?

Amen brother!

[MC Horoscope]

I would like to see a study of how the Supreme Court has a long history of disregarding plain passages that seem to spell out the intent of certain laws or their reason for being.

"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 part about the militia gets overtaken by the natural right to defend oneself, period.

Works this way with the clause about copyright:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The part about the progress of science and technology gets overtaken by some kind of presumed right to a practically perpetual monopoly for things well beyond science and technology.

I wonder how many areas this pertains to?

SCOTUS performs amazing feats of "stunt logic" from their own dubious premises that ignore the language there in the very Constitution, imo.

[DonRocks]

SCOTUS performs amazing feats of "stunt logic" from their own dubious premises that ignore the language there in the very Constitution, imo.

In Contract Law (and this is essentially a "contract" between the country and its citizens), vaguely written language is construed against the party that worded the contract.

Like it or not, the Constitution, and the Amendments - including the Bill of Rights, and absolutely including the 2nd Amendment - are *very* poorly and vaguely worded. We must err on the side of the party who *didn't* write the law, i.e. the people.

If only I was alive in the 1780s, we would have air-tight laws in this country; our Founding Fathers weren't as smart as people give them credit for being.

[Josh]

So the real question is "how can we take away guns from everybody so crazy people can't get hold of them?"  And the answer is, you can't.

I would again point towards the Australian experience after the 1996 mass shooting.  It can be done.

Said in a slightly different way: this.

[Bart]

I'd like to rephrase the question.  I think what you are really asking is, "what can we do to stop crazy people from killing innocent people with guns?"

Um, well, there's already a prohibition against selling guns to crazy people.  So that doesn't work.  And there's no way to get rid of crazy people, so that doesn't work.

So the real question is "how can we take away guns from everybody so crazy people can't get hold of them?"  And the answer is, you can't.

Those points are a bit extreme and seem to be framed in such a way to "prove" that nothing can be done so why bother even trying. Along with the Australian example that is gun related there are a couple more non-gun related examples of things that work well to reduce but not completely eliminate bad things from happening.

One is safety improvements in cars, the other is drunk driving. I can't quote accurate statistics on either, but the gist of it is this:

30, 40, 50 years ago there were a lot more highway deaths due to crashes and a lot more drunk driving than there is today. We as a society decided that the status quo back then was unacceptable so we passed laws that made cars safer and more "accident resistant" and also passed mandatory seatbelt laws. The rate of highway deaths has been in a sharp decline ever since. Same thing with drunk driving. We had all these public campaigns to educate people about it and make it non-socially acceptable to do it, or to have "one for the road" and the rates of DUIs have declined. We also strengthen the DUI laws and penalties.

Do people still drive drunk? Yes. Do people still die in car crashes? Yes. You can't eliminate it all, but you can certainty take measures to reduce the numbers. The same thing can be done with guns as was proven in Australia but the NRA will never let that happen, and they control half the Congress.

[Ilaine]

[You're free to voice your opinion; you're not free to change peoples' words to your own liking. So this sentence must go if you're going to attribute it to anyone other than yourself.

As your post is written, you're asking *your own* rhetorical question, and you then spend the next six paragraphs meandering, twisting, and turning your own rhetorical question into yet another of *your own* rhetorical questions. Please try and read what people are actually writing, rather than what you think they're writing. There's plenty of space here, and we can always start another topic if you want to change the subject.]

Don - Which is why I said, "I think . . . ."

As for what the 2nd amendment says, or means, I also think we're not getting anywhere by debating what the Founders meant, or the historical context of the amendment back in the day.  I am not saying the Constitution is subject to change, but it's certainly subject to interpretation, by the Justices of the Supreme Court.  The Supreme Court has consistently held, and I count at least 15 cases, that the right to own a handgun is fundamental right, necessary to the Nation's system of ordered liberty, and I am not paraphrasing there.

You aren't starting from scratch.  The right to use a firearm for the purpose of self-defense has been upheld over and over.

How do deal with the pesky Second Amendment.  The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures, and ratified by three fourths of the States.

Ok, so, effectively speaking, we have the right to own firearms and it's not going away, like it or not.  Nevertheless, it is not absolute.

[Ilaine]

Those points are a bit extreme and seem to be framed in such a way to "prove" that nothing can be done so why bother even trying. Along with the Australian example that is gun related there are a couple more non-gun related examples of things that work well to reduce but not completely eliminate bad things from happening.

One is safety improvements in cars, the other is drunk driving. I can't quote accurate statistics on either, but the gist of it is this:

30, 40, 50 years ago there were a lot more highway deaths due to crashes and a lot more drunk driving than there is today. We as a society decided that the status quo back then was unacceptable so we passed laws that made cars safer and more "accident resistant" and also passed mandatory seatbelt laws. The rate of highway deaths has been in a sharp decline ever since. Same thing with drunk driving. We had all these public campaigns to educate people about it and make it non-socially acceptable to do it, or to have "one for the road" and the rates of DUIs have declined. We also strengthen the DUI laws and penalties.

Do people still drive drunk? Yes. Do people still die in car crashes? Yes. You can't eliminate it all, but you can certainty take measures to reduce the numbers. The same thing can be done with guns as was proven in Australia but the NRA will never let that happen, and they control half the Congress.

Bart - my intention was to suggest that, like it or not, moral outrage over gun violence will not stop gun violence.  There are no easy fixes.

In my opinion, the only fix is at the root cause.   And that is CERTAINLY not an easy fix.

The NRA didn't make people love their guns.  People loving their guns is what makes the NRA.  If you can point to a single mass killing by an NRA member, the hatred of the NRA would be more justified.

[Al Dente]

For the record, I'm not attacking hunters. I have no problem with that.

Also, I realize that the vast majority of gun owners are trying to be responsible (though those guns too often kill anyway), but there are ridiculous numbers of murders and suicides in this country by gun. There are over 3.5 deaths per 100,000 people in this country while in the UK the number is about .05. And that's just homicides. Folks in the UK hunt too.

The NRA espouses absolute unrestricted access to guns and they are amazingly effective at shooting down (pun intended) any attempt to create better laws restricting their use. In the interest of being civil, suffice it to say, I have low regard for Wayne LaPierre and the congressmen who are bought out by the NRA.

Those paranoid self-styled "militias" (the patriots with under-inflated balls) who think they're protecting our borders, or whatever imagined threat they perceive, would be hilarious if it weren't so dangerous. They're like little boys playing Cowboys and Indians pretending they're big heroes.

[The Hersch]

Don - Which is why I said, "I think . . . ."

As for what the 2nd amendment says, or means, I also think we're not getting anywhere by debating what the Founders meant, or the historical context of the amendment back in the day.  I am not saying the Constitution is subject to change, but it's certainly subject to interpretation, by the Justices of the Supreme Court.  The Supreme Court has consistently held, and I count at least 15 cases, that the right to own a handgun is fundamental right, necessary to the Nation's system of ordered liberty, and I am not paraphrasing there.

The Supreme Court discovered an individual right to keep and bear arms in District of Columbia v. Heller, in 2008. It had been settled law until then that rights under the 2nd Amendment were collective rights, although the Supreme Court itself had never before taken up the question. Do you mean there have been 14 subsequent cases since 2008?

[Bart]

Bart - my intention was to suggest that, like it or not, moral outrage over gun violence will not stop gun violence.  There are no easy fixes.

In my opinion, the only fix is at the root cause.   And that is CERTAINLY not an easy fix.

The NRA didn't make people love their guns.  People loving their guns is what makes the NRA.  If you can point to a single mass killing by an NRA member, the hatred of the NRA would be more justified.

Moral outrage won't stop gun violence, but it could motivate those in power to try to do something about it.  But that will never happen when half the Congress is bought and paid for by the NRA..   I'm sure there are a lot of GOP Congressmen/women who are outraged by these shootings and want to do something about it, or at least try to do something about it, but can't because they either rely on the NRA for campaign funds or they are worried about getting "primaried" from the right by someone whom the NRA approves.

What is the root cause you're referring to?  Too many guns?  Ease of acquiring guns?  The 2nd Amendment?  Mental illness?  Or something else?  I'm honestly not sure.

And finally, I don't understand your point about showing you an NRA member who committed a mass shooting,  What difference does that make?  That's like saying that since no heroin dealers have OD'd we shouldn't worry about or even address the current heroin epidemic.   And actually, based on a chart I just saw (that I'll post in a bit from my phone), it's highly likely that an NRA member was involved in a mass shooting.  But again, I don't think that really matters in this argument.

[Bart]

Here's the chart.  It shows we've had 247 mass shootings in the 238 days of this year!  Surely one of them is an NRA member.  And if not this year, surely an NRA member committed a mass shooting in years past.  But like I said above, I don't think this matters and is not a valid argument on either side of the issue.

.

[Ilaine]

Hersch, interesting question, looking at which leads me to the revelation that the harder the states (and DC) try to ban guns, the more explicit the Supremes get in saying no. Each decision more firm. Not elected, beholden to no one but their individual interpretation of the law.

Bart, whatever. If you need to believe the NRA is evil and destroying America out of evilness, your prerogative. I think it'd entirely beside the point. NRA has no sway with SCOTUS. Neither the President nor Congress can get past SCOTUS, absent a constitutional amendment, or enough justices dying and ones who will vote your way getting appointed and a case that will excite enough of them to reverse precident to do so. Appointing justices who think your way is pretty iffy, but in time, maybe there will be a majority who think your way. That law abiding gun owners should not have guns because guns are inherently unsafe, is the way I understand your argument. Do I have that correct?

[The Hersch]

Hersch, interesting question, looking at which leads me to the revelation that the harder the states (and DC) try to ban guns, the more explicit the Supremes get in saying no. Each decision more firm. Not elected, beholden to no one but their individual interpretation of the law.

Bart, whatever. If you need to believe the NRA is evil and destroying America out of evilness, your prerogative. I think it'd entirely beside the point. NRA has no sway with SCOTUS. Neither the President nor Congress can get past SCOTUS, absent a constitutional amendment, or enough justices dying and ones who will vote your way getting appointed and a case that will excite enough of them to reverse precident to do so. Appointing justices who think your way is pretty iffy, but in time, maybe there will be a majority who think your way. That law abiding gun owners should not have guns because guns are inherently unsafe, is the way I understand your argument. Do I have that correct?

I'd still be interested in citations for the 15 cases (at least) in which the Supreme Court declared that ownership of a handgun is a fundamental individual right. As far as I can see, they never so held until 2008, and that case, District of Columbia v. Heller, was itself a wholesale reversal of precedent.

It's hard to see "if you need to believe the NRA is evil and destroying America out of evilness" as a good-faith argument. Nobody here has suggested such a thing. Your argument above that NRA members themselves have not been mass murderers is classic straw-man. The point isn't that the NRA is evil, or that NRA members go about shooting people for sport. It's that the NRA has consistently fought against even the most modest restrictions on the kinds of weaponry available on the open market, and against similarly modest restrictions on what sorts of people can buy them. To the extent that the NRA has behaved in this way, they have fought against the common good, at least in the view of those of us who think, for example, that assault rifles in the hands of mentally unstable people are a pubic detriment.

[Josh]

That law abiding gun owners should not have guns because guns are inherently unsafe, is the way I understand your argument. Do I have that correct?

While no current or hopeful elected official endorses that policy, that is indeed what I believe to be necessary.  We decided as society that once-legal substances like heroin and cocaine were too unsafe to be legally available to the public at large.  If things continue as they are, we will one day make the same decision regarding firearms, and rightly so.

And because a little humor is always welcome in such charged discussions:

[Bart]

Bart, whatever. If you need to believe the NRA is evil and destroying America out of evilness, your prerogative. I think it'd entirely beside the point. NRA has no sway with SCOTUS. Neither the President nor Congress can get past SCOTUS, absent a constitutional amendment, or enough justices dying and ones who will vote your way getting appointed and a case that will excite enough of them to reverse precident to do so. Appointing justices who think your way is pretty iffy,

Please don't put words into my mouth. I never said the NRA is destroying America out of evilness. My point was that in order for things to change regarding the daily mass shootings we have, the laws will have to change. Maybe the second amendment will have to change too. But that will never happen with the NRA controlling half the Congress. This issue doesn't even come up because the NRA controls half the Congress. 26 five year olds were killed in their class room and not only did we do nothing to address the issue in a positive way, many states relaxed gun laws and made it easier to acquire guns!! That's a direct result of the NRA's power and influence.

Regarding your final line about "Appointing justices who think your way is pretty iffy". I'm not sure what "think your way" is other than something needs to be done about the daily mass shootings we have. Again, feel free to address things I've said, but don't attack me for things you want me to have said.

That law abiding gun owners should not have guns because guns are inherently unsafe, is the way I understand your argument. Do I have that correct?

No, you have that absolutely wrong. I never said anything about taking guns away from law abiding gun owners. In fact, I never said anything about taking guns away from anyone.

And here's a couple more points about the current NRA: Ronald Reagan wouldn't pass muster with the current NRA. He was for gun control and he was for a ban on plastic guns (non detectable by X-ray machines). The current NRA is against those things, but they weren't when Reagan was president.

The current NRA, through their influence in Congress, has banned the NIH (or maybe the CDC....some big public health organization) from even studying the issue of gun deaths.  31 people in the US are murdered by guns every day and 55 people kill themselves in the US every day with guns.  That's 86 guns deaths per day in the US!  That's over 31 thousand deaths per year and we can't even study it?!?!?   3000 people we killed on 9-11 and we spend somewhere between 3 and 6 trillion dollars on it and 10 times that number die every year and the NRA is preventing anything (even a study!) from being done about it.

So maybe you have a point, maybe the NRA is actually destroying America out of evilness.

[Ilaine]

To the extent that the NRA has behaved in this way, they have fought against the common good, at least in the view of those of us who think, for example, that assault rifles in the hands of mentally unstable people are a pubic detriment.

Bogus.  NRA supports mental health record background checks, but not all people with a record of mental illness are dangerous.  The following is a cut and paste from NRA website:

---

"On Monday, NRA filed formal comments in opposition to a plan by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to expand the categories of persons prohibited under federal law from acquiring or possessing firearms because of having been "adjudicated as a mental defective" or "committed to a mental institution."  The proposal is commonly referred to by its BATFE docket number, 51P.

NRA shares the goal of keeping firearms out of dangerous hands.  Its comment notes, however, that existing federal law on this issue casts a wide, undifferentiated net that snares masses of mostly harmless individuals with a much smaller group that may present an increased risk of violence.  The comment cites numerous sources that express the nearly universal opinion of mental health professionals that mental illness is not highly correlated with, predictive of, or frequently causally related to violence.  It also cites reports from mental health professionals, the FBI, and the Secret Service that acknowledge the futility of creating an accurate "profile" of persons who have no history of violence but present a risk of future harm.

NRA's comment additionally underscores the importance of the rights affected by these lifetime prohibitions, the wide range of state and federal procedures that potentially trigger them, and the difficulty (or outright impossibility) of prohibited persons achieving restoration of rights, even after full recovery.  Under existing federal regulations, a person who experienced a temporary reaction to a traumatic event or who has trouble handling household finances may well be treated the same as a violent psychopath.  Not only is this unjust and stigmatizing, it creates disincentives for those who need mental health treatment to seek it, increasing whatever risks are associated with untreated mental illness. 

NRA's comment explains in detail how 51P would worsen these problems. The proposal, for example, conflicts with federal appellate court precedent, which interprets the antiquated term "mental defective" in a much narrower way than BATFE does. It also disregards cases that recognize the fundamental rights protected by the Second Amendment cannot be abridged without adequate due process.  NRA's comment exposes the flaws in the justification BATFE provides for 51P, including the way it cherry picks case law and bits of legislative history that support a broad reading of the federal statute while ignoring other precedent that supports a narrow reading.

Recognizing that scientific knowledge of mental illness has progressed and now undermines the Gun Control Act's broad prohibitions on the mentally ill, NRA urges BATFE to defer action on the rule and to wait for Congress to reexamine the issue in light of modern medical understanding of the link between mental illness and violence.  The comment provides a number of guidelines for statutory reform, including provisions aimed at swifter, more accurate, and readily-accessible diagnosis and treatment of mental illness.  It also suggests that individualized risk assessment may be a more effective means of protecting public safety than bans that affect large categories of people.

Finally, NRA's comment offers specific recommendations for regulatory reform under the current statutory scheme.  It advocates for more specific due process protections and individualized findings of dangerousness, expanding opportunities for restoration of rights, and interpreting the statutory terms in light of what they meant to the Congress that passed them."

[Josh]

It also cites reports from mental health professionals, the FBI, and the Secret Service that acknowledge the futility of creating an accurate "profile" of persons who have no history of violence but present a risk of future harm.

This is an excellent argument for my position.

[Ilaine]

While no current or hopeful elected official endorses that policy, that is indeed what I believe to be necessary.  We decided as society that once-legal substances like heroin and cocaine were too unsafe to be legally available to the public at large.  If things continue as they are, we will one day make the same decision regarding firearms, and rightly so. 

There appears to be an unbridgeable gap between people who view guns as useful tools and people who cannot conceive of this.

I did not want a gun, myself, until a friend of mine had someone try to break into her apartment.  She called the police and her father, and her father got there first, with a gun, and the would be attacker ran off.

After that, I got a gun, learned how to use it, and carried it to and from work in the Warehouse District in New Orleans, at night, and held it in my hand, pointing downward, as I went back and forth to my car.  I also carried it to a confrontation between another friend of mine and a man having a psychotic breakdown.  I stood by the side of the car with my hand inside the door, holding the gun, hoping I did not have to use it.  Luckily the police got there before the psychotic man got up the nerve to attack my friend with a machete.  I informed one of the officers that I had a gun, and he was fine with it.

I don't have a gun now.  I don't feel like I need it.  But if I ever feel like I do need it, I want one.

[Ilaine]

This is an excellent argument for my position.

Josh, the position that nobody should have guns because some people are dangerous, and we don't know who they are?

Honestly, whatever.  Change the Supreme Court, change the Constitution, but otherwise, you're just venting.  Which is fine.  I'm outta this.

[Josh]

Josh, the position that nobody should have guns because some people are dangerous, and we don't know who they are?

Honestly, whatever.  Change the Supreme Court, change the Constitution, but otherwise, you're just venting.  Which is fine.  I'm outta this.

Yes, that is my position, and the position of many developed nations.  It is not venting, it is a rational response to a public health threat.

[Ilaine]

Interesting quote from the Dred Scott decision (African Americans can't be citizens because they would, shudder, have free speech and the right to carry guns, thus endangering society):

"The legislation of the States therefore shows in a manner not to be mistaken the inferior and subject condition of that race at the time the Constitution was adopted and long afterwards, throughout the thirteen States by which that instrument was framed, and it is hardly consistent with the respect due to these States to suppose that they regarded at that time as fellow citizens and members of the sovereignty, a class of beings whom they had thus stigmatized, whom, as we are bound out of respect to the State sovereignties to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation, or, that, when they met in convention to form the Constitution, they looked upon them as a portion of their constituents or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [p417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them." (Emphasis added)

[Steve R.]

While no current or hopeful elected official endorses that policy, that is indeed what I believe to be necessary.  We decided as society that once-legal substances like heroin and cocaine were too unsafe to be legally available to the public at large.  If things continue as they are, we will one day make the same decision regarding firearms, and rightly so. 

Just as an aside, I guess I gotta point out that Prohibition (alcohol) didn't fly for very long, legalization of marijuana is full steam ahead & I'm going to opine that, as illegal as coke & heroin are, it hasn't stopped them from being used in a very big way.  And that's without even considering our modern ability to synthesize new drugs that are probably even more dangerous and certainly have the same effect on behavior.  I'm not saying that I believe these all to be equally dangerous or on par with unregistered guns in an urban community, but only to point out that banning something has never really worked.  My take is that most regulation, law & policing has to concentrate on those caught breaking the law and that prevention of sociopathic actions need to be dealt with in a very different way"¦ probably a way that our society, worldwide, is not ready to embrace.

By the way (not directly responsive to anything you said), keeping guns out of the hands of the mentally ill sounds great until you realize that a)the prevalence of gun violence by the diagnosed mentally ill is lower than that of the rest of society & b)just about none of the acts committed to date would have been positively affected by any law to this end.  Sure, after a psychopath goes on a rampage, it's easy to say s/he was mentally ill (who would do these things who wasn't?), but that's infinitely different from knowing that these individuals, before they committed their acts, should be kept away from a gun more than, say, their next door neighbor who hasn't done anything (& probably won't).  Prediction aint our strong point, but back seat driving, on the other hand, "¦.

[Josh]

Just as an aside, I guess I gotta point out that Prohibition (alcohol) didn't fly for very long, legalization of marijuana is full steam ahead & I'm going to opine that, as illegal as coke & heroin are, it hasn't stopped them from being used in a very big way.  And that's without even considering our modern ability to synthesize new drugs that are probably even more dangerous and certainly have the same effect on behavior.  I'm not saying that I believe these all to be equally dangerous or on par with unregistered guns in an urban community, but only to point out that banning something has never really worked.  My take is that most regulation, law & policing has to concentrate on those caught breaking the law and that prevention of sociopathic actions need to be dealt with in a very different way"¦ probably a way that our society, worldwide, is not ready to embrace.

By the way (not directly responsive to anything you said), keeping guns out of the hands of the mentally ill sounds great until you realize that a)the prevalence of gun violence by the diagnosed mentally ill is lower than that of the rest of society & b)just about none of the acts committed to date would have been positively affected by any law to this end.  Sure, after a psychopath goes on a rampage, it's easy to say s/he was mentally ill (who would do these things who wasn't?), but that's infinitely different from knowing that these individuals, before they committed their acts, should be kept away from a gun more than, say, their next door neighbor who hasn't done anything (& probably won't).  Prediction aint our strong point, but back seat driving, on the other hand, "¦.

I don't want to get into drug policy (another very interesting discussion topic). I simply used them as an example of a time when we as a society deemed something too dangerous to be legally available to the public at large.

It has been stated several times here that a gun ban (or at least banning most guns) can't or won't work.  But the experiences of other nations who have done just that shows that it can and does.

[RWBooneJr]

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.

This, unfortunately, means exactly what every gun nut thinks it does.  It's the supreme law of the land and there's really nothing to debate.  Every American has an unfettered right to arm themselves however he or she sees fit, from the peaceful hunter to the idiot "militias" with machine guns, grenades, and anything else they can get their hands on.  It's a horrible anachronism with grotesque consequences.  It should be repealed.  It never will be.

[DonRocks]

This, unfortunately, means exactly what every gun nut thinks it does.  It's the supreme law of the land and there's really nothing to debate.  Every American has an unfettered right to arm themselves however he or she sees fit, from the peaceful hunter to the idiot "militias" with machine guns, grenades, and anything else they can get their hands on.  It's a horrible anachronism with grotesque consequences.  It should be repealed.  It never will be.

What about the wording of this amendment prohibits the federal government from banning the sale or transfer of arms?

I'm sure this has come up before, and I suspect there's court precedent, but just reading the amendment, I see nothing prohibiting the government from outlawing the sale and transfer of arms.

In other words, you can keep and bear them, but does that necessarily mean you can own them? And if so, does that necessarily mean that you can transfer that ownership to someone else?

I can think of many holes to poke in this amendment; the question is: Have they been poked before?

They couldn't get Capone for being in the Mafia, so they got him for tax evasion - where there's a will, there's a way.

[lovehockey]

Our system of justice is predicated upon the presumption of innocence.  No one can be deprived of any right unless first convicted of a crime.

If you'd like to strip guns, you'll have to change the entire legal foundation of America.

[Ilaine]

Our system of justice is predicated upon the presumption of innocence. No one can be deprived of any right unless first convicted of a crime.

If you'd like to strip guns, you'll have to change the entire legal foundation of America.

Second sentence not quite correct. With rights come responsibilities. Example, no shouting fire in a crowded theater.

Third sentence also not quite correct. Amending the Constitution is something that can be done, but not easy and also not likely without a huge majority.

As an intellectual exercise this reminds me of the anger in coastal states when the popular vote for President loses in the Electoral College. The Constitution is remarkably intricate for such a short document. Admirably so, in my mind.

[MC Horoscope]

I find it totally appropriate to discuss the constitution this way on a food board given that it was a beverage tax that "broke the camel's back" and initiated the American Revolution!

Man does not live by bread alone, there must also be beverage. --Woody Allen

---

[The *camel's* back! Maybe we should have a thread about cigarettes in modern culture as well!

Seriously, MC, thanks for bringing some always-welcome, often-needed humor into such a serious thread. Humor, especially good humor, is *always* welcome here - it's a soft spot of mine, and I have a bias towards it, which is one reason I cherish Al Dente's posts so much.

It should also make us *all* step back, take a deep breath, and realize that we're friends here, and there are a *lot* of smart people on this website on both sides of any given issue. Thanks for posting this. Cheers, DR]

[The Hersch]

 As an intellectual exercise this reminds me of the anger in coastal states when the popular vote for President loses in the Electoral College. The Constitution is remarkably intricate for such a short document. Admirably so, in my mind.

,

So, you think the anti-democratic features of the constitution are admirable intricacies? Actually, the extremely anti-democratic nature of the electoral college is to some extent extra-constitutional, but the anti-democratic Senate (which is reflected in the make-up of the electoral college) is indeed baked into our constitutional framework, the result of compromise predicated in part on slavery, and in which California's 39 million people have two votes, Wyoming's 584 thousand people have two votes, and the District of Columbia's 650 thousand people have no votes. An admirable intricacy indeed!

In modern times, only once did the winner of the popular vote fail to become president, but that wasn't decided by the electoral college, it was decided by a Supreme Court so embarrassed by its radical, outcome-oriented decision that it basically simultaneously decided the 2000 election and renounced its own opinion by declaring that it would have no precedential force. I don't think you have to be coastal to object to that.

[Ilaine]

,So, you think the anti-democratic features of the constitution are admirable intricacies? Actually, the extremely anti-democratic nature of the electoral college is to some extent extra-constitutional, but the anti-democratic Senate (which is reflected in the make-up of the electoral college) is indeed baked into our constitutional framework, the result of compromise predicated in part on slavery, and in which California's 39 million people have two votes, Wyoming's 584 thousand people have two votes, and the District of Columbia's 650 thousand people have no votes. An admirable intricacy indeed!

Hersch, exactly.  All the people in California have the same number of senators as all the people of Wyoming. That's the beauty of the Great Compromise.  Upon which hung the balance of the smaller states agreeing to sign the Constitution. The Electoral College is a bit more directly democratic, since the larger states have more votes there.

The intention was checks and balances against direct democracy.  It works.  We live in a republic.  The popular will does not control, except indirectly.  When I look at Donald Trump, I give thanks.

[lovehockey]

This is going to be my last post in this thread.

This is a free society, right?  If so, why should the innocent be punished for the actions of another?  Alas, the actions of the other may be for all sorts of reasons, some of which we cannot fathom.

Freedom is not perfect. It does not perfectly protect us from everything, including violence done to some by others.  It does, however, provide us with the single greatest advantage of any people on Earth:  We are free to become nearly anything.  We often forget how privileged we are to live in the United States of America.

To force freedom out of our culture in some misguided attempt at enforced fairness... That requires the destruction of the most basic premise upon which this republic was founded and the American Revolution was fought.

Plus there are tens of thousands of stories of people who used firearms in self-defense; in many cases the gun wasn't fired.

I have no problem with advocating responsible firearm ownership.  As I've said before, I don't own a gun and won't until I have proper training.  That being said, there is a place for laws to prevent firearm ownership for those who should not have them for certain reasons.

But to say that a freedom granted by the Constitution and exercised responsibly by so many people in this country because the laws on the books aren't rightly enforced is something I cannot support.

[Josh]

Freedom is not perfect. It does not perfectly protect us from everything, including violence done to some by others.  It does, however, provide us with the single greatest advantage of any people on Earth:  We are free to become nearly anything.  We often forget how privileged we are to live in the United States of America.

Folks throughout the developed world are able to follow their dream and find success without a constitutional right to own a firearm.  America does not have a singular claim to "freedom," and the state of being free does not rely on gun ownership or the possibility thereof.

[lovehockey]

My promise of a last post is shot to smithereens.  Sorry.

Josh, as much as I wonder how Hawkeye got good stuff out of that still, "America does not have a singular claim to "freedom," and the state of being free does not rely on gun ownership or the possibility thereof"...

America is free beyond belief.  Imagine so many other places in the world.   As for gun ownership, I can assure you that there are people you know who own firearms but you don't know it.

Look, there are millions of responsible firearm owners out there who are obeying the law.  Why penalize them?

P.S. America may not have a singular claim to freedom, but it's right near #1.

[Al Dente]

A wee bit of amusement...

Evolve Together TV commercial:

"Playthings"

Lock Up Your Guns!

[Bart]

Look, there are millions of responsible firearm owners out there who are obeying the law.  Why penalize them?

Well, a lot of them are responsible right up until they're not and it's too late.  I just read a story today about a guy who shot his 9 year old daughter while cleaning his gun.  Or how about the woman last Christmas, who by all accounts was a responsible gun owner, who was shot and killed by her toddler in Walmart while shopping. Or the numerous stories of mishaps by gun instructors where guns go off while they're teaching gun safety classes, the most famous being the guy who got shot in the head and killed when he let a young girl fire an automatic weapon that she obviously couldn't handle.

But lets look at it another way.  Forget about the responsible gun owners, and the 2nd Amendment right, and 200 years of case law and all those cute bumper sticker sayings the NRA spews.  Are all you* gun rights people OK with 25 6-year olds getting killed in their classroom?  Are you ok with 9 people getting killed in church?  Are you ok with random people getting killed in random places like the mall, the movies, during an interview?

I'm not smart enough to know what the solution is, but I am smart enough to realize there is a problem.  Apparently, the 2nd Amendment zealots see no problem in all those shootings.

* I'm not directing this at anyone specifically or anyone in this thread, More of a "rhetorical you" question.

[Mark Slater]

I'm not smart enough to know what the solution is, but I am smart enough to realize there is a problem.  Apparently, the 2nd Amendment zealots see no problem in all those shootings.

The solution is mandatory gun insurance.

[Al Dente]

The solution is mandatory gun insurance.

How so and what does insurance do?