Progress

President Obama finally talked favorably about further gun control legislation yesterday.

The president nodded to the post-Aurora outcry for stronger gun legislation, adding that “too often, those efforts are defeated by politics and by lobbying, and eventually by the pull of our collective attention elsewhere. But what I said in the wake of [the 2011 shooting spree in] Tucson was that we were going to stay on this persistently.” […]

He then went on to articulate what seems to be an opposition to legal assault rifles: “I, like most Americans, believe that the Second Amendment guarantees an individual the right to bear arms. I think we recognize the traditions of gun ownership that passed on from generation to generation… but I also believe that a lot of gun owners would agree that AK-47s belong in the hands of soldiers, not in the hands of criminals; that they belong on the battlefield of war, not on the streets of our cities.”

I don’t agree that the 2nd Amendment “guarantees an individual citizen the right to bear arms” any more than I believe that African Americans are two-thirds of a person — another archaic and extinct line in the Constitution. But I like the fact that the president is finally stepping up his game on this issue.

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  • Clancy

    Bob, I know you’re just trying to be cute, but when was the last time that any court (or non-crazy person) actually indicated a belief that African Americans counted as two-thirds of a person? The reason this is archaic is because Amendments to the Constitution made it so. Last I checked, no such similar check took place relating to any rights guaranteed by the Second Amendment.

    I believe that anyone other than a nutcase (of which, sadly, this country has far too many) should be able to read the Second Amendment and acknowledge that it does not guarantee an absolute right to possess any kind of weapon whatsoever, but to claim that it doesn’t guarantee citizens the right to bear arms seems just as divorced from reality. It’s rather clear that this is exactly what the Second Amendment guarantees, whether one adopts the present-Supreme Court’s interpretation of it as an individual right, or what had prevailed through much of the nation’s history as a collective right regulated by the states.

    • chris castle

      If the framers had intended to grant the absolute right of citizens to bear arms, that’s what they would have said, “Citizens shall have the right to bear arms.” But that is simply not what they wrote. The Second Amendment was written to practically guarantee a standing army if we needed one, a well-regulated militia. As such, since we have a standing army to protect against foes foreign and domestic, as well as a National Guard, the Second Amendment is, in fact, archaic.

      • Clancy

        Since I made no claim of an absolute right, I won’t defend it. However, I will point out that the Framers would have known the difference between a standing army and state-regulated militias. While they often worked in concert with one another, they were not the same thing.

        While I will grant that the notion of the militias themselves is now archaic, the rights that it guaranteed are not. Presently, one might argue that the Third Amendment is completely useless. However, the prohibition against the government from quartering troops in one’s house is still very real.

        • chris castle

          guarantee = absolute

          • Clancy

            Not in the English language it doesn’t.

  • chris castle

    Liberals don’t herd easily. Independent, critical thinkers don’t fall in line the way brain-dead conservatives do. If we learned to play that game better, we’d be a lot better off…

  • GrafZeppelin127

    One thing I keep hearing and reading is that The Founding Fathers™ wrote and included the Second Amendment in order to ensure that citizens could take up arms against, threaten and overthrow their own government, in case that government ever became tyrannical and oppressive or exceeded the bounds of its constitutional powers. There are plenty of cherry-picked quotations from TFF™ and other 18th-century contemporaries that support this view.

    Four reasons why I can’t take this seriously:

    1. It makes no sense. Mainly, I can’t accept that while TFF™ were creating this new government, this nation of laws, this unprecedented experiment in democracy wherein political differences could be resolved peacefully and transitions of power achieved without violence and bloodshed, that foremost on their minds was making sure that violence and bloodshed were always on the table for those purposes, that their creation could easily and at any time be destroyed in a bloody coup (which they would make sure to enable), that citizens could and should be free, indeed encouraged, to nullify the law, the political process and elections through violence and bloodshed.

    The idea that in the 1780s, TFF™ wanted to make sure that citizens could, on their own initiative and for any reason, declare and fight their own private war against their own government, simply doesn’t bear scrutiny. Somehow I can’t imagine Jefferson saying to Madison, “Let’s make sure that if anyone ever feels inconvenienced by the law, or is ever unhappy about the outcome of an election, he can have his own gun so he can just come to the capital and start shooting.” If any person can unilaterally and arbitrarily decide, on his own initiative and for any reason, that “the government” is by his own subjective definition “oppressive,” take his gun, go to Washington and shoot his, your, my, and others’ duly-elected representatives, then this is neither a free country nor a republic nor a democracy nor a nation of laws. The exercise is ultimately and entirely self-defeating.

    2. It’s not the way to prevent tyranny. The bulwark against tyranny that TFF™ created was not the Second Amendment, but the separation of powers, checks and balances, and particularly an independent judiciary; a government with no singular ultimate authority (like a king, Führer or other Supreme Leader), but rather a tripartite entity subject to its own laws and democratic processes, with each branch both subordinate to and having authority over the other two. That is the evidence of their brilliance and farsightedness, viz., that they devised a system of government that cannot, by design, become tyrannical or oppressive unless violence and bloodshed come into play. No matter what happens, there is always a way to fix things without resorting to violence and bloodshed.

    3. It’s not necessary. I didn’t think of this until someone pointed out that the American colonists themselves had overthrown an oppressive, tyrannical government via a bloody revolution, and claimed that they wanted to ensure that future generations could do the same if things went horribly wrong. But the colonists did not themselves have any sort of “right to bear arms.” Neither did the French revolutionaries, nor the Russian, nor the instigators of any other armed revolution anywhere in the world throughout history. There is simply no reason to believe, neither now nor in 1789, that the possibility, necessity or feasibility of an armed revolution is in any way contingent on the people having a “right to bear arms.”

    4. It’s dishonest. I had plenty of debates, discussions and arguments about the Second Amendment between 2001 and 2006. Not once during those years did I hear or read anyone making this argument.

    • http://drangedinaz.wordpress.com/ IrishGrrrl

      Graf, your post really made me think about the 2nd Amendment in a different way. For years, I was like Clancy above, I felt that it was pretty clear we had the right to bear arms. However, I also struggled with the fact modern weaponry simply didn’t exist. There is no way the TFF could have envisioned rifled barrels, 100 round mags, infrared scopes, etc. I also understood that if the TFF had meant the 2nd Amendment to be so straightforward they certainly didn’t expect the average person to want to have not only a blunderbuss or two but cannons. And that was the point that the President was making yesterday. Fine if you want a gun, but why do you need a weapon that can wreak so much havoc?

      The other thing that has lingered in my mind is all that I read about TFF indicated that the LAST thing they wanted was a violent fight against the British. It wasn’t that they were cowards. After all they defied a King and the greatest Army to rule the world since the Roman Empire (or Genghis Khan if you prefer an Eastern example). And they surely knew that the odds were good they were going to lose. There’s a reason why George Washington moved the colonial troops all over kingdom come in order to avoid straight up traditional battles….the odds were never in our favor in regards to large weaponry, discipline, logistics, funding, etc. Furthermore, Washington knew first hand the ugliness of war having served in the French and Indian War. So, they weren’t cowards but they weren’t stupid either. They avoided violent conflict for as long as possible because of very pragmatic concerns and I believe they would want Americans to take the same tack in future.

      • Clancy

        I really don’t want anyone to believe that I support an absolute right to bear arms. I simply believe that the right to possess firearms exists. How that right is interpreted should be open to debate. I agree that it’s absurd for individuals to possess, have access to, or use most explosive devices, advanced weapons systems, and military-style assault weapons. I think the government acts well within its Constitutional restraints if it moves to limit where firearms can be carried, their firing capacity, clip size, bullet composition, etc.

        I am not a strict constructionist or originalist. I pretty much think the 2nd Amendment guarantees that right of individuals to own certain handguns, shotguns, and rifles for hunting or personal protection. Why limit it to that? Because, it seems like these are things that not-crazy people would want or need to own. (How’s that for Constitutional reasoning?) When the discussion starts getting into legal specifics, I start getting a little wishy-washy. Also, I think the NRA’s position on what are basically sensible gun control proposal is f-ing crazy.

        • http://drangedinaz.wordpress.com/ IrishGrrrl

          I understand and agree with your conclusion wholeheartedly

    • trgahan

      I couldn’t agree more that the current interpretation of the 2nd Amendment as a kind of “sore loser clause” against election outcomes is total BS. I submit the events of the Whiskey Rebellion less than 10 years after ratification as my proof. The sitting President leading the countries standing army into western PA to squash a rebellion based on taxation is pretty convincing where, once governing the nation, the Founding Fathers stood.

    • Clancy

      I almost completely agree with everything you’ve written here, but do differ somewhat with your conclusions. The Second Amendment was intended as part and parcel of the separation of powers you mention above as the protection against tyranny. The separation of powers has always been more than simply those within the national government. Our federal system itself was intended to place limits on the power and authority of the national government. When the Bill of Rights was proposed to make the adoption of the Constitution more palatable to those who were weary of a strong national government, part of the intent of the 2nd A. was to guarantee that the states could keep and regulate their militias.

      While there are no more state militias, that does not necessarily preclude the right to bear arms. Until recently, our courts seemed pretty firmly decided that an honest reading of the Second Amendment meant that states exercised (most) control of these matters as part of their regulatory authority. If Arizona or Texas wanted what basically amounted to unfettered access to firearms, so be it. Conversely, if the people of Massachusetts or New York wanted to place what their legislatures deemed to be appropriate regulations on gun ownership, then that was also acceptable.

      • GrafZeppelin127

        Interesting response, but it doesn’t vindicate the idea that TFF™ wanted to make sure that people have guns so they could fight their own private war against their own government. And I’m not making an argument as to whether there is or is not an individual right to bear arms.

        My only point is that the claim I’ve been hearing and reading since January 20, 2009, but never once heard or read before that date, that the Second Amendment was drafted and included in the Bill of Rights because TFF™ intended, as their primary concern and motivation, to give citizens the right and the ability to show up at the Capitol, the White House and/or the Supreme Court and start shooting if and whenever they feel “oppressed,” amounts to nothing more than wishful thinking by cynical political partisans, whose definition of “tyranny” amounts to “my guy lost the last election.”

        • Clancy

          Agreed, completely. One cannot take seriously any claim that an individual right to bear arms is a curb against potential tyranny, nor was that the intent of the Framers.

          I do recall others making similar claims before January 20, 2009. Specifically, it was expressed quite often between January 20, 1993 and January 19, 2001. At that time, however, many of the notion’s proponents went out of their way to form pseudo-militias, so perhaps you’re correct right that it is a more recent phenomenon.

          • GrafZeppelin127

            I’m sure you’re right about that (1/20/93 – 1/19/01). I didn’t have a lot of conversations about Constitutional Law during that time.

            Cheers.

          • http://drangedinaz.wordpress.com/ IrishGrrrl

            Graf, you inspired me and you got BIG love from me. http://wp.me/pYORZ-At

    • KAboink

      I agree.
      From what I have read, the second amendment (or the right to bear muskets) was more about the possiblity of those Rascally Red Coat British Snagletooths marching back into the country after the revolutionary war.
      It was a long time ago and things have changed.
      So it’s pretty disingenuous to claim that this old amendment, written under entirely different circumstances entitles any kid today to own an uzi.

  • muselet

    In 2008, the Supremes tortured the English language and American history in order to hold in District of Columbia v. Heller that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Then they reaffirmed and enlarged that suddenly-discovered individual right in 2010’s McDonald v. City of Chicago.

    So we’re left with a reality in which everyone has the individual right to arm himself (it’s almost always a “him,” isn’t it?) to the teeth because freedumb! The majority on the Supreme Court don’t—indeed, will never—have to deal with the consequences of their decisions because they have security details, although the rest of us do.

    –alopecia

    • http://www.facebook.com/people/LeShan-Jones/100000478051440 LeShan Jones

      Before our current Supreme Court made either of those rulings, the NRA was never able to win in court because the Federal courts always refered back to the “Miller vs US” decision from 1939;

      http://en.wikipedia.org/wiki/United_States_v._Miller

      In that decision, which concerned a man transporting a sawed-off shotgun across state lines, the decision read;

      “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

      This was the final word from the Supreme Court on second amendment issues for decades, until the activist judges in the Roberts court got the chance to redefine the second amendment the NRAs way.

      I want to find a copy of “up from Conservatism” the book has a section on the second amendment and mentions that the term “keep and bear arms was an 18th century phrase that refered to a type of military service. I want to re-check that if I can find a copy of the book.

      • muselet

        Agreed. Too many of the current Supremes pay occasional lip service to stare decisis, but don’t really seem to believe they should care about black-letter law. I believe it was in the Heller decision that the majority said, in essence, “You know that stuff about ‘a well-regulated militia’? Yeah, that was meaningless boilerplate thrown in to dazzle the rubes, so we’re free to invent this ahistoric interpretation.”

        Reversing long-standing precedent wouldn’t bother me so much if the Court’s Righties didn’t flash their arses at us when they did it.

        Without knowing, I’d guess that “to keep and bear arms” meant to be a member of a militia. (Just FYI, Amazon has Up from Conservatism for $14.19 new, and $0.01 and up used.)

        –alopecia

  • mrbrink

    The 2nd Amendment was written in the spirit of the Common Defense, a right to be well regulated under the jurisdiction of the people’s government, not for the delusional gun-marrying rogue nuts on forever honeymoon in the woods preparing to take on the U.S. military, or Democratically elected presidents.

  • D_C_Wilson

    If Scalia were truly the strict textualist he claims to be, then he’d have to follow the exact definition of “arms” that was in use during the 18th century, ie, muskets.

  • http://cousinavi.wordpress.com cousinavi

    Leaving aside the 2nd Amendment debate, I would simply point out that TFF never asserted that blacks were worth two-thirds the value of a white person.
    It was three-fifths. That’s 1/15 less than two-thirds.

    Bob, you are overpaying for your black people. You should demand a refund.