Saturday, March 10, 2007
The Individual Right to Bear Arms
Lively, T. & Taylor, D. (2007). Court strikes down D.C. ban on guns. Washington Times, 10 March 2007, http://washingtontimes.com/metro/20070309-102401-2730r.htm.
The Articles of the Constitution are in a logical order, with the center of government (the Congress) coming in Article I, the servant of the government (the Presidency) described in Article II, and the interpretor of the government (the Supreme Court) outlined in Article III. The remaining four original articles, IV, VI, VI, and VII, are essentially housekeeping, outlining how the union should function given the three branches previously described.
The Bill of Rights are outlined the same way. The critical rights of expression -- starting with the preemption of a Church of the United States, prohibiting prohibitions on worship, and making its way to freedom of speech, press, assembly and petition -- come at the beginning, while rules of how to read the Constitution (Amendments IX and X) come at the end.
The second-most important amendment of the Bill of Rights, which protects the right of the people to possess guns, reads as follows:
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.
And means that there is an individual-right to possess weapons. As the D.C. Court of Appeals ruled:
A federal appeals court yesterday struck down the District's 30-year-old gun ban, ruling that the right to bear arms as guaranteed in the Second Amendment applies to individuals and not only to militias.
"The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well," the 58-page ruling said.
Alan Gura, an attorney for the plaintiffs, called the ruling a "tremendous victory for the civil rights of all Americans."
One of the upsides of this freedom - taken from Columbians by the local government and restored by the federal -- is that crime will drop. The expected force difference between a 300 pound man and a 100 pound woman, say, is now negligible. Both can pull a trigger.
Thank you, D.C. Court of Appeals.
Chief Justice Roberts has a need for "consensus" (at least that's the description he offers to the media) on the Court, so one hopes that when this reaches the Supreme Court, the consensus will be to restore the 2nd Amendment rights to millions of Americans in places like Chicago & D.C., not to avoid "rocking the boat" and deciding the bans are constituational.
Posted by: Eddie | Saturday, March 10, 2007
While I find this ruling mostly agreeable, I have a question before I further dive into gun controversy.
Though I do interpret the second amendment as a right for individuals to bare arms (how one rationalizes a different interpretation is beyond me), I also wonder if the amendment further implies "freedom of arms"?
I think if this question was brought to light in the public forum there wouldn't be so much controversy in the first place.
“starting with the preemption of a Church of the United States”
A gov’t can “respect an establishment of religion" without the establishment being under the ownership of the gov’t, can’t it?
Posted by: Jeffrey James | Sunday, March 11, 2007
What happens on the Supreme Court definitely matters. However, of all the Appeals courts, D.C. is the most powerful and respected. So even until this reaches the Supreme Court, this decision matters. It's great.
A good discussion of the text of the second amendment occurs at about the 11 minute mark of a Penn & Teller episode.  I recommend it.
What would be the difference between a "right to bear arms" and a "freedom of arms"?
And on churches, "establishment" has a specific meaning of State Church. The longest word in the English language, for example, which deals with those who opposed a similar protection for Englishmen - is "antidisestablishmentarianism."
Likewise, a state might establish several churches. Today in China, there are three established churches -- the Chinese Patriotic Catholic Association, the Three-Self Patriotic Movement / Chinese Christian Council, and the Islamic Association of China. Likewise, the Missouri Lutherans broke off from the historical Lutheran church because of Prussian governmental control of the Christian churches.
Protection of religion from the government is an important right -- and is the very first right mentioned in the Bill of Rights. However, the perversion of this into enforced secularism has been both disrespectful of the Constitution, and political disasterous for progressives in general.
Posted by: Dan tdaxp | Sunday, March 11, 2007
I have to say I was a bit shocked when I heard this over ruling. Shocked and pleased I might add.
I think the direction Jeff's taking in "freedom of arms" is that while the second amendment assures US citizens right to bear arms it doesn't qualify the term "arms." In other words, while I can cheerfully blast away at paper targets with my Sig I cannot (sadly) destroy a field of junk cars from the cockpit of a fully armed F-16.
Posted by: Jay@Soob | Sunday, March 11, 2007
Jay - the 2nd Amendment is especially interesting when you compare its effects to the European notion that the state should have a Monopoly of Violence. 
Posted by: Dan tdaxp | Tuesday, March 13, 2007
"I think the direction Jeff's taking in "freedom of arms" is that while the second amendment assures US citizens right to bear arms it doesn't qualify the term "arms." In other words, while I can cheerfully blast away at paper targets with my Sig I cannot (sadly) destroy a field of junk cars from the cockpit of a fully armed F-16."
Well, that is one place you can draw a line, and where to draw a line is quite relative. I am not saying that to rationalize heavy gun restrictions. Personally, at the very most I may draw a line between full and semi-automatic assault rifles (there needs to be a study done on full automatics to see how effective they are in a rampage scenario before I make up my mind).
What I am trying to get at is since the 2nd amendment doesn't say anything about "freedom of arms" (which would protect the right to privately own a nuclear warhead as well as an air soft gun) and it doesn't outline a minimal of what kinds of guns need to be protected, it seems that the amendment reaches a level of vagueness that is only slightly more comprehensible than the 9th amendment. Though the overall idea that the state shouldn’t have a monopoly on violence needs to remain in everyone’s mind.
"Protection of religion from the government is an important right -- and is the very first right mentioned in the Bill of Rights. However, the perversion of this into enforced secularism has been both disrespectful of the Constitution, and political disasterous for progressives in general."
Enforced secularism? I can agree that some rather asinine things are done in the name of the separation of church and state. However, I don’t recall very many people (if any) wanting to put “under no god we trust” on U.S. currency or put “one nation under no god” into the pledge of allegiance. To me, that is forced secularism, otherwise I would think the big push would be for neutralism, if anything. When I was in high school, one was allowed to pray and assemble to pray as they pleased, but one such stipulation was that we can’t have organized prayer lead by a teacher, so that seemed to have served as sufficient evidence for fundies when they make the accusation that school prayer has been forbidden.
Now, I am not arguing with the “perversion” remark. It seems that most people are too eager to interpret the constitution in such a way that it always perfectly coincides with their own rhetoric (much in the same way one would interpret the doctrine of an organized religion). As for them interpreting this into enforced secularism, well, I don’t see this as an underlining agenda of the mainstream separation of church and state movement, but I can’t deny that there are those with such an agenda, you just need to look elsewhere.
Posted by: Jeffrey James | Saturday, March 17, 2007
Glad I picked up what you were laying down.
I think the 2nd amendment contained at it's philosophical core the ability of the people (the non militia included) to maintain the ability to toss aside, through armed insurrection, a government that enacted counter constitutional laws or measures. I also think that the founding fathers didn't specifically consider personal gun ownership for the purpose of protection because they simply couldn't and didn't fathom the prospect of American law illegalizing personal ownership of firearms as a "protective" or anti-criminal measure.
Further, the question of "just how far does the 2nd amendment go?" is a sound one. If the second amendment was designed to empower the citizen with the means to overthrow a tyranny shouldn't I get my F-16? And yes I realize the real economic logistical problems of owning and operating a fighter jet. There's a million reasons to not allow me my fighter from the pragmatic point of view, but where does the constitution weigh in?
Posted by: Jay@Soob | Saturday, March 17, 2007
U.S. v. Miller found that weapons fit for combat were protected and that weapons unfit for combat were not. The Court found that a sawed-off shotgun was not protected because of a factual error - the justices believed they were not fit for use in a militia. I don't remember if it was this case or one from a lower court in the same era, but they actually made two lists, separating certain types of knives and explosives.
Posted by: Adam | Sunday, March 18, 2007
The red herring in this discussion is "monopoly of violence," a term nowhere found in the constitution but sickeningly common among many discussions. Jeffrey's emphasis of this point is wise.
In the European legal tradition, violence and defense are completely reserved to the state. There was a recent case in South Korea (which has a European view of violence) that illustrates this quite well. An American serviceman was attacked by a mob, and while under attack hit back. That this happened wasn't disputed. However, the serviceman was then prosecuted for attacking his attackers. That it was "self defense" didn't matter, because such a right doesn't exist under Korean law. Violence is criminal unless done by the state.
The common law view, however, is that individuals have a right to defend themselves, both individually and collectively. If barbarians (Vikings, Indians, whoever) attacked your settlement, the people of town had the right to beat them back. Likewise, if an individual criminal was attacking your home, you had the right to repel them.
The 2nd Amendment appears primarily concerned with preserving the collective, non-state act of self defense. This is in no way anachronistic. If a criminal gang is operating in your community, you are not helpless: the Constitution guarantees your arms to use against these vandals.
Likewise, is there any chance airline-missle terrorism could have happened if the community of passangers had been armed, even with something as simple as box-cutters? Of course not. Violence against a community is only possible when the community is disarmed, the barbarians are not, and the government is disinterested (for example: 9/11/01).
Posted by: Dan tdaxp | Monday, March 19, 2007
Dan, I think you could extend this line of thought to the recent rash of school shootings. Amazingly "gun free zones" present a shooting fish in a barrel opportunity for the deranged.
Posted by: Jay@Soob | Wednesday, March 21, 2007
I was going to school when students could bring guns to the parking lot (many would go hunting immediately afterwards). That safety's gone now, because presumably the people are not protected by a "resource officer."
I don't think anyone pretends 9/11 could have happened if passengers were encouraged to bring knives and boxcutters onboard planes.
Posted by: Dan tdaxp | Thursday, March 22, 2007