The Second Amendment

By: Gustavus
Published On: 5/6/2007 4:39:48 PM

There is a dispute going on about the Second Amendment-does it give the right to bear arms to individuals or to state militias?  (see e.g. this article.) I'm not certain this is a dispute which should be of much interest to gun control advocates.

No sane person believes that the "rights" in the constitution are absolute.  The right to free speech doesn't give one the right to slander another person in print; the right to freedom of religion doesn't give one the right to unfettered use of hallucinogens, even if that is part of the religion; the right of assembly doesn't give a group the automatic right to hold their assemblies on the White House lawn; and so on.  The question regarding guns is "What are reasonable restrictions?"

I doubt that even the most zealous member of the NRA wants 10 or 11 year olds to be able to walk into a store, plop down some money, and buy guns and ammunition and walk out.  Every sane person believes there should be age restrictions on who can walk around with loaded guns.  I doubt many people believe fans should be able to take guns into football stadiums during games.  It would be a fine time at Redskin stadium, during the Cowboy games, if a couple of hundred people had loaded guns with them.  It would make the fights the drunks get into now look like child's play.

My point is that even gun advocates must agree on laws that put reasonable restrictions on the use of guns.  And the laws are meaningless if not enforced.  That is why it is so depressing to read that Sen. Webb "applauded the decision to drop the gun charge" against his aide.  Apparently the aid "didn't know" he had the gun.  Do drunk drivers get off because they "don't know" that they meet the legal requirements of being drunk?  If a person assumes responsibility for a loaded gun, he should be responsible for knowing when he has it and when he doesn't. 


Comments



Three questions (humanfont - 5/6/2007 5:22:16 PM)
Did he threaten someone with this gun?

Did he ever show a pattern of violent behavior, or insantity before or during this incident?

During this entire incident was anyone's safety at risk? 

Cause if not, why should he be charged.  The gun wasn't allowed into The Capitol.  It was caught by the scanner.  Who was put at risk in this incident?  Who was harmed?  Driving a car while impaired puts the public at risk.  Slandering someone is a willful act resulting in real harm. 



The drunk driver analogy is inapt (Catzmaw - 5/7/2007 9:04:33 AM)
A drunk driver is someone who has been drinking and miscalculates his intake or just does not bother to watch his intake.  Any driver who starts drinking and knows he has to drive home is duty bound to limit his intake so he does not become intoxicated.

In contrast, a close reading of Webb's statements about the incident when it occurred, and with a parsing away of all the unfounded assumptions in statements of others, it appears what happened was that Webb was trying to rush to the airport, that there was more than one aide there, that there was more than one car there, and that there was more than one briefcase.  It appears that Webb placed the weapon and ammo in a briefcase, that Thompson did not necessarily see him do this, and that Webb then left the briefcase in the car when he went to the airport.  Thompson later (I think maybe two or three days later) drove the car to the Capitol, and when he got there realized that Webb's briefcase was in it and did not want to leave it unguarded in the car, so brought it in with him.  It sounds like either a breakdown in communication or a mistake about which briefcase the weapon was in.  In any case there is no showing that Thompson, a very intelligent individual who knows, since he works there, that he has to pass through security, ever knew that the weapon was in that briefcase.  Mistakes do happen.  Seriously, are you saying that people should be criminally penalized even when there is an innocent oversight based on misinformation?  And when no one has been injured, threatened, or otherwise harmed as a result of this innocent mistake?  The man spent his birthday in the nasty DC Jail.  That's consequence enough.



Is the drunk driver analogy is inapt ? (Gustavus - 5/7/2007 11:18:00 AM)
It wasn't only that he didn't know he had the weapon in the briefcase; he was, as the article states, "carrying a pistol without a license." 

I'm an excellent driver, but suppose I don't have a driver's license.  I drive around a bit, and get stopped in a license check.  Will I get off because "no one has been injured, threatened, or otherwise harmed as a result of this innocent mistake"?  Unlikely. 



Sorry, but the analysis is still off (Catzmaw - 5/7/2007 2:46:54 PM)
The premises are different.  If you are driving a car you are aware that you may only drive if you have a license to do so.  The very act of driving it is illegal UNLESS you've obtained a and this requirement flows from the implied consent written into our traffic laws which deem the driving of a vehicle to be a privilege, not a right, and one which is subject to certain strictures due to the public policy interest in safe vehicle operation and regulation of the two ton missiles we all drive around on our roads every day. 

In the case of Thompson entering the Capitol he was an employee who picked up his employer's briefcase and carried it somewhere.  There is no duty imposed on employees to check their employers' luggage before they carry it somewhere and no tests have to be taken or licenses obtained to do so.  There would have been nothing illegal about his act of carrying the briefcase had it not been for what was contained, without his knowledge, in the briefcase.  Surely you would not urge an interpretation of the law so strict that you would not at least require mens rea, or actual knowledge that he was carrying the weapon?  Absent proof of his actual knowledge that it was there, what purpose is served for penalizing him for not knowing? 



"His Excellency" George Washington: no militias (Andrea Chamblee - 5/7/2007 12:28:16 PM)
This book makes clear what jurists have known for centuries. They weren't debating the individual right to bear arms. That's not what the Second Amendment was getting at, at all.

In fact, the reason Paul Revere had to ride to Concord to let the people know "the British are coming" is precisely because they did NOT have guns in their houses. They were locked up in a guarded cache in town that the British hoped to capture. Concord was "a key community because it was the temporary home of the Provincial Congress and also a storehouse for militia guns, powder, and shot. He warned the residents there that redcoats were likely to be dispatched in the near future to seize the town's arms supply."  The Americans had to hop out of bed and beat them to it.

George Washington believed in a federal standing army. He wrote often on how he was unimpressed with part-time soldiers. They didn't have the training, experience, or the equipment for war. They left whenever their home state said they could, leaving him without enough men.

Most people in the states did not want a standing army.  They were upset with the British standing army. They were quartered in their homes. They included mercenaries, mostly Hessians (Germans) who committed war atrocities, raping women and especially salves, stealing slaves and food.  They associated a standing army with tyranny. Some people claimed that Washington's desire for a standing army was his attempt to become king. The Newburgh Conspiracy by the military made people more nervous of an anti-republic military coup.

The second amendment was a compromise of these two ideas about Federal and state military. It identified a right of the states to have a militia. It did not prevent the federal government from having a standing army, although it wasn't till Hamilton started a federal bank and taxed sugar from the islands thatthere was even money to think about an army.

You can also see the debates in light of Machiavelli's The Prince, which all the forefathers had read and discussed at the time. He had written that there are three choices for soldiers: (1) local "militia," (2) soldiers borrowed from other feudal lords and countries that owed favors, and (3) paid mercenaries.  Although there were advantages for each he concluded no one fought as well and long as a local militia who fought over their own homeland.

"[W]hen he relied on his own soldiers, on whose fidelity he could always count and found it ever increasing; he was never esteemed more highly than when every one saw that he was complete master of his own forces.
***
"I conclude, therefore, that no principality is secure without having its own forces; on the contrary, it is entirely dependent on good fortune, not having the valour which in adversity would defend it. And it has always been the opinion and judgment of wise men that nothing can be so uncertain or unstable as fame or power not founded on its own strength. And one's own forces are those which are composed either of subjects, citizens, or dependants; all others are mercenaries or auxiliaries."


So (mmc0412 - 5/7/2007 1:13:49 PM)
Does this mean we can throw the term "activist judges" back in the Republican's faces when they bring up the 2nd Amendment and the right to bear arms?  If judges are considered activist by holding up Roe v. Wade, then they are certainly activist if they rule a case based on an inidividual's right to bear arms.  The Republicans can't have it both ways now, can they?


Good point. An activist judge is a judge who rules against me. (Andrea Chamblee - 5/7/2007 1:45:35 PM)
But it was not until this year - with the DC case of Parker - that any appellate court had ruled the Second Amendment was an individual right. They had always ruled based on this history that it was a State vs Federal compromise. There's just way too much writing to rule any other way unless you stretch too far and ignore too much. Or unless you're a Bush appointee.

Now don't get me wrong. I appreciate how much people's guns mean to them.  As long as we agree we need to keep them away from felons, stalkers, and people with mental illness, then we agree on gun control.  We just don't agree on how much gun control. I'd be happy with a competency and age test, similar to driving a car. That would be a huge improvement.  And anyone who insists they need a gun without knowing how to shoot it straight, doesn't really need one.



Our understanding of our rights have changed and rightly so. (humanfont - 5/9/2007 12:15:24 AM)
George Washington and other founding fahters also used the Alien and Sedition acts to smother freedom of the press and jail their political enemies.  We used to say prayers in school, despite the freedom of religion.  Equal protection under the law once meant it was ok to have seperate school systems for blacks and whites.  The right of a woman to control her body wasn't granted until the 70s. 
I believe liberals should support as broad a reading of the bill of rights as possible.  A narrow definition of any of the rights accorded to citizens allows for a narrowing of all our enumerated rights. Conservative commontators have a point, why do liberals scream about every admendment but the second, which they pretend doesn't exist.


The problem with the "reasonable restrictions" argument (Randy Klear - 5/9/2007 2:46:37 PM)
is that it means something very different with the Second Amendment than it does with other parts of the Bill of Rights.

In the case of other Constitutional rights, "reasonable restriction" applies to all people, and only when their exercise of rights presents an imminent threat to the rights and safety of others. No person may assemble a mob or incite it to violent behavior.  No person may freely traffic in dangerous drugs under the rubric of religion.  And, of course, people who do these things retain their rights of speech, assembly and religion in all other circumstances.

The restrictions people associate with the Second Amendment, however, involve depriving specific individuals with the loss of their gun rights for extended periods, often permanently.  Children may not buy guns.  Ex-felons may not have them, even if the felonies they committed did not involve guns.  The mentally ill may not have them, even if they never showed intent to acquire them or to commit violence toward others.

It is hard to square this with the idea of an "individual" Second Amendment right.  Think how this kind of restriction would work if applied to other rights.  Imagine the government saying, "You have been involuntarily committed for mental treatment.  Therefore, you can no longer be a Baptist."  Or, "You advocated the assassination of the President. Therefore, your house is automatically subject to warrantless search from now on."  Or, "You're a convicted felon. If you are ever charged with another crime, you have no right to counsel."

Are these "reasonable restrictions"?  If not, why are the exact same kind of restrictions allowed in regard to the Second Amendment unless we acknowledge that the right to bear arms isn't really an individual right?