Interpreting the 2nd Amendment: Literalism and Intent in Gun Laws

[Cyrus]

You still have the fourth highest firearm related death rate. You're up there with Brazil - does that not worry you?

Sure, it worries all Americans, but it is irrelevant to the 2nd amendment. Show me where the 2nd amendment says anything about death rates, and how that should factor into the validity of the right to bear arms. Hint: it doesn't say that anywhere, and for good reason.

 

[Cyrus]

Ofcourse there is a remote possibility that a tyrannical dictatorship may take control in America - and for sure, everyone should rise up against them.

However, any rational government must assess policies (or lack thereof) in terms of their likely consequences - ideals are all well and good, but if adhering to them causes the (largely avoidable) death of a hundred people each day, they should, quite frankly, be dispensed with.

Do us all a favor, buy a book on american history and go read it before arguing your point.

No but it is relevant. The tendency to romanticise about the circumstances that lead to enshrinement the 2nd Amendment distracts people from real consequences of weak gun laws.

Again, no. It's not 'romanticizing' anything, it's that you not understanding a fundamental point about american history - the importance of a well armed citizenry.

Sure, if you think that having the 4th highest homocide rate in the world isn't a problem?

<shrug> This has no bearing on the 2nd amendment. It was not put there to deter homicide rates.

Someone on this thread talked about UK being the knife 'capital' of the world - just imagine if the perpetrators of such violence had access to guns - we'd have massacres in London on a daily basis.

Complete and total (baseless) nonsense.----------------------------------
You are arguing straw men about the 2nd amendment. You can quote numbers and statistics until you are blue in the face - but you continue to miss the point!

 

[Office_Shredder]

Well thanks for pointing this out. Ofcourse I meant the "Total firearm-related death rate" rather than the "homocide death rate":

http://en.wikipedia.org/wiki/List_of_countries_by_firearm-related_death_rate#cite_note-Kaiser_2004-1

In anycase, how does that take away from the point I was making?

We have more firearms than many nations, and end up having more firearm related deaths than those nations. That's a shock. If we banned firearms, would they just use other things to kill?

First note that the bulk of those deaths are from suicide. Let's take a closer look

http://en.wikipedia.org/wiki/List_of_countries_by_suicide_rate

We're down at number 41 there! So no, our suicide rate is not being driven to the top by firearms, our firearm death rate is being driven to the top by suicides. But that's not making our country wildly successful at suicide compared to other nations. The high death by firearm rate is an illusion, and there's no convincing evidence that banning firearms would drop the death rate

 

[TheStatutoryApe]

Well thanks for pointing this out. Ofcourse I meant the "Total firearm-related death rate" rather than the "homocide death rate":

http://en.wikipedia.org/wiki/List_of_countries_by_firearm-related_death_rate#cite_note-Kaiser_2004-1

In anycase, how does that take away from the point I was making?

You raise concern about the dangers of guns to US citizens. Wouldn't homicide rate be the statistic of concern here? We have a higher "firearm related" death rate (a significant portion of which is suicide) because we have more guns. But the homicide rate is not so much higher than in Europe. If there are fewer guns and less concern of being murdered in Europe than you would imagine in America and the homicide rate is very close then from where do you derive the conclusion that there is a greater concern for citizen welfare in the US due to guns? Apparently people are murdered just as readily in other parts of the world regardless of gun statistics.

The NRA (infact all lobbying in general) undermines democracy. They get the executive to 'influence' the judiciary, and I think that is a bad thing.

The executive has no influence over the Judicial branch excepting that (s)he is president and is more likely to have their ear than the average person. Lobbbyists (and you and I and our grandmothers too) are capable of submitting amicus briefs to the court and that is about the only influence that they can possibly have on the court.

 

[TheStatutoryApe]

Federal law does regulate ownership in many ways, although the "assault weapons ban" itself has expired. For example, mere possession of an unregistered automatic weapon is a federal crime, and only grandfathered weapons may be registered and transferred at $200 each (last I heard), background check, and a couple months wait. And federal laws are enforced even if the weapon in question was never involved in interstate commerce, such as home-built or manufactured and sold in-state.

As far as the types of weapons covered by the 2nd amendment, it seems obvious that weapons suitable for battle are the type covered. Anti-gun folks commonly cite the Supreme Court decision in U.S. v Miller, falsely claiming it said the 2nd amendment only applied to militias. Anyone (like me) who has ever read that decision knows that to be false. What it actually said was that the sawed off shotgun in question was not protected because it was not shown to the court to be a militarily useful weapon, not because its possessor wasn't a member of a militia. The fact that the person convicted wasn't a militia member wasn't even an issue in the case.

Can you show me the law? The fed has gotten away with quite a bit by rationalizing it in various ways. There are apparently federal laws that allow the fed to arrest you for breaking the laws of other states and even of other countries.
I am assuming that there is a standard that all guns sold are to be registered. If the gun is not registered then one may assume that it was sold illegally. If it was sold illegally then one may consider possession of unregistered firearms to be indicators of black market activity and hence falls under the commerce clause.

 

[Gokul43201]

Haven't found the time to post here after the discussion was split off, and probably will not find more time until next week. I will say this, however: my intent with the OP was entirely to probe the rationale behind omitting the prefatory clause, rather than engage in general arguments about gun control.

 

[Cyrus]

Can you show me the law? The fed has gotten away with quite a bit by rationalizing it in various ways. There are apparently federal laws that allow the fed to arrest you for breaking the laws of other states and even of other countries.
I am assuming that there is a standard that all guns sold are to be registered. If the gun is not registered then one may assume that it was sold illegally. If it was sold illegally then one may consider possession of unregistered firearms to be indicators of black market activity and hence falls under the commerce clause.

You don't have to register rifles.

 

[CRGreathouse]

Not every mentally ill person is dangerous, and they are not more apt to commit violent crime than the general population...seems so obvious I can't believe I have to say it .

Do you have a source for that? It sounds intriguing, I can't imagine the study methodology.

 

[CRGreathouse]

Well it does stand to reason that it is much easier for people to commit suicide with a gun. What are the alternatives - hanging themselves? taking a paracetamol overdose?

A bit of perspective - the total suicide rate in America is 11.1 and the firearm related suicide rate is 7.35 - almost three quarters of the total. If you work it out, 65 people commit suicide by using a firearm each day. I would guess substantial number wouldn't commit suicide if they did not have access to a firearm:

I would expect that drug overdoes (paracetamol and acetylsalicylic acid, primarily) would take up all the slack. Do you know if any studies have been done, e.g. in countries that rapidly went from lax to tight firearms laws?

 

[Galteeth]

Do you have a source for that? It sounds intriguing, I can't imagine the study methodology.

I don't have the source, but it makes sense if you include depression as mental illness. Generally, people with depression would be less aggressive and assertive (not including "borderline")

 

[CRGreathouse]

I don't have the source, but it makes sense if you include depression as mental illness.

I would not include it. But I'd love to see a study that addressed the issue under any reasonable definition of metal illness.

 

[Galteeth]

I find this logic a little bit silly. Of course people kill people, but guns make it so much easier to kill people. Guns are literally killing machines that can do way more damage than any other weapon.

And btw no one here is looking to enforce their morality on anyone:)

I agree with this completely except for one major problem: Both the government and criminals would still have guns. If NOBODY had guns, then having guns makes less sense. If guns are illegal, only the bad guys have guns. In other words, outlawing guns doesn't make them go away. It does make the people who have guns a lot more powerful.

 

[Al68]

The psychological and physical damage that normalising gun ownership causes far outweigh any perceived benefits.

Speaking of psychological, I have to side with Freud on this one: Fear of weapons is a symptom of sexual immaturity.

 

[Cyrus]

I would expect that drug overdoes (paracetamol and acetylsalicylic acid, primarily) would take up all the slack. Do you know if any studies have been done, e.g. in countries that rapidly went from lax to tight firearms laws?

Around the world, from Australia to England, countries that have recently strengthened gun-control laws with the promise of lowering crime have instead seen violent crime soar. In the four years after the U.K. banned handguns in 1996, gun crime rose by an astounding 40%. Since Australia's 1996 laws banning most guns and making it a crime to use a gun defensively, armed robberies rose by 51%, unarmed robberies by 37%, assaults by 24% and kidnappings by 43%. While murders fell by 3%, manslaughter rose by 16%.

http://www.usatoday.com/news/opinion/2002/05/09/ncoppf.htm

 

[CRGreathouse]

Thanks for the article. I was hoping for something discussing suicide rates, though.

 

[Al68]

Can you show me the law?

Sure: http://trac.syr.edu/laws/26/26USC05841.html

I am assuming that there is a standard that all guns sold are to be registered. If the gun is not registered then one may assume that it was sold illegally.

The federal registration requirement only applies to certain types of weapons, like fully automatic weapons and sawed-off shotguns. There is no such requirement for most guns.

If it was sold illegally then one may consider possession of unregistered firearms to be indicators of black market activity and hence falls under the commerce clause.

Nope, for two reasons. First, the commerce clause specifies interstate commerce. Second, you can't constitutionally justify a law based on the fact that if the law is passed, violations of it would be an indicator of "black market activity". That would be true of any law, constitutional or not.

 

[TheStatutoryApe]

Nope, for two reasons. First, the commerce clause specifies interstate commerce. Second, you can't constitutionally justify a law based on the fact that if the law is passed, violations of it would be an indicator of "black market activity". That would be true of any law, constitutional or not.

The primary requirements are on manufacturers which have been decided to fall under the commerce clause. If you procure such a firearm as requires registering it will already be registered by the manufacturer. If you are in possession of an unregistered weapon of the sort outlined in the NFA then it is not a big leap to assume that it must be a black market item actionable under the commerce clause. The stretch is in the requirement for individuals to register ownership though I am sure they argue this as necessary due to the prevalence of stolen firearms in the black market.

A interesting decision is Haynes v. U.S. which states that felons and other classes of persons who are prohibited from owning such weapons may not be held to the registration requirements as it would be a violation of the fifth amendment.

 

[BobG]

A interesting decision is Haynes v. U.S. which states that felons and other classes of persons who are prohibited from owning such weapons may not be held to the registration requirements as it would be a violation of the fifth amendment.

I'm hoping you're not suggesting that Haynes v. US makes it legal for convicted felons to own unregistered firearms. The rationale of the decision is that you can't tack an extra charge of failing to register the firearm onto the original charge of a felon in possession of a firearm.

It is an interesting decision, none the less. The IRS can go after a person for income tax evasion if they fail to declare their illegal income on their tax forms. I assume the Haynes decision relies on the fact that failing to register a firearm doesn't result in the person failing to fulfill any other obligation while failing to declare illegal income results in a person failing to pay all of the taxes that they owe.

 

[TheStatutoryApe]

I'm hoping you're not suggesting that Haynes v. US makes it legal for convicted felons to own unregistered firearms. The rationale of the decision is that you can't tack an extra charge of failing to register the firearm onto the original charge of a felon in possession of a firearm.

Of course. That would be the fifth amendment basis for the decision. You can not charge a person for failing to do a thing which they could not have done anyway. It would merely be an attempt to create additional charges against the person.

 

[turbo]

The federal registration requirement only applies to certain types of weapons, like fully automatic weapons and sawed-off shotguns. There is no such requirement for most guns.

This is only true of private-purchase weapons that can fly under the radar.

If you buy a modern (post 1898) gun of any kind from a dealer, the purchase is registered in his FFL records, and he has to conduct an FBI background check on you before transferring the weapon. The serial number of the weapon and the reference number of the background check result are recorded on his paperwork, as well as the buyers name, address, and signature, as well as the type of ID produced to confirm identity. Those stay in his files. His FFL "book" these days is likely to be digital (that has been allowed for years now) and can be sent to the BATF yearly or on-demand. By law, a dealer cannot carry guns in inventory that have not been entered into that "book".

The requirements are pretty stringent, and if a gun dealer wants to stay out of jail, he'd better adhere to them. The requirements for Class III weapons, including fully automatic guns are far more stringent, and require that the purchaser pay a licensing fee for each weapon, in addition to undergoing a background check. Any FFL-holder (licensed gun-dealer) can deal in Class III weapons, but to do so, they have to pay a yearly fee of $500, which keeps most dealers out of that end of the business.

There is no "forgiveness" for unregistered class III weapons. I got a call from a librarian who was cleaning stuff out of the attic of the town library and found a large WWI machine gun that had been donated just after the war and had stayed in the attic, except for a couple of appearances in parades. I tried and tried to find a way to get that weapon registered so that it could be sold - especially since it was a German gun captured by a very famous Medal of Honor and French Legion of Honor winner, Alvin York. Nope! The BATF wouldn't budge. That library could have built a wing with the money that such a historic machine gun would bring at auction, but I was unable to even take possession of it. Last I knew it was languishing in police impound, awaiting confiscation.

 

[vertices]

I agree with this completely except for one major problem: Both the government and criminals would still have guns. If NOBODY had guns, then having guns makes less sense. If guns are illegal, only the bad guys have guns. In other words, outlawing guns doesn't make them go away. It does make the people who have guns a lot more powerful.

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

 

[vertices]

You raise concern about the dangers of guns to US citizens. Wouldn't homicide rate be the statistic of concern here? We have a higher "firearm related" death rate (a significant portion of which is suicide) because we have more guns. But the homicide rate is not so much higher than in Europe. If there are fewer guns and less concern of being murdered in Europe than you would imagine in America and the homicide rate is very close then from where do you derive the conclusion that there is a greater concern for citizen welfare in the US due to guns? Apparently people are murdered just as readily in other parts of the world regardless of gun statistics.

The issues surrounding suicide are complex and multilayered but it is safe to assume that poorer countries are more likely to have a higher suicide rate (for the simple reason that you are more likely to commit suicide if you are poor).

The US shouldn't be compare itself with the likes of Belize in matters such as these. If you look at that list, you will find that the US has the highest suicide rate of the 1st world countries (with the exception of Turkey).

The executive has no influence over the Judicial branch excepting that (s)he is president and is more likely to have their ear than the average person. Lobbbyists (and you and I and our grandmothers too) are capable of submitting amicus briefs to the court and that is about the only influence that they can possibly have on the court.

Well, there was a reason why I put quotation marks around 'influence' - the nra has form when it comes to bribing politicians (google seach 'nra bribe politicians') and click on the 2nd link - interesting video.

 

[Proton Soup]

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

well, a couple of things. it is socially-acceptable, even normal, for people to have guns.

second, i don't need a gun to go around and kill random strangers instantly. and neither does anyone else, including people in other cultures. i believe it has already been mentioned that when people don't have guns, they improvise, and the murders still happen.

i would agree that availability of illegal drugs is not a good argument. it's not as if not having heroin puts me at a significant disadvantage to a person that does have access to heroin.

 

[Office_Shredder]

The US shouldn't be compare itself with the likes of Belize in matters such as these. If you look at that list, you will find that the US has the highest suicide rate of the 1st world countries (with the exception of Turkey).

Did you look at the wikipedia link that I posted on this earlier? Countries with higher suicide rates include:

http://en.wikipedia.org/wiki/List_of_countries_by_suicide_rate

Japan
South Korea
Finland
Switzerland
France
Austria
New Zealand
Sweden
Czech Republic
Norway
Portugal
Canada
Iceland

Seriously, do you have any facts to back up your opinions or do you just make them up?

EDIT TO ADD: It is instructive to note that according to wikipedia Belize has a lower suicide rate than the United Kingdom

 

[lisab]

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

To the bolded comment: well we *do* have laws and a working legal system. And I assure you, murder is not socially acceptable, despite the fact that we're well armed.

You seem to believe that if only Americans could see things your way, could come see how your lifestyle is, we'd be so much better off! And of course reasonably well traveled people would clearly agree with you, and if only we would see the light we'd realize our way of life causes damage to society. Can you see how that comes off as arrogant?

I have been to Europe, was in England for a summer in fact. Plus my step-father is British so I've had plenty of exposure to a non-American point of view. Do I want my culture to change because of that experience? No, I don't.

 

[mheslep]

You seem to believe that if only Americans could see things your way, could come see how your lifestyle is, we'd be so much better off! And of course reasonably well traveled people would clearly agree with you, and if only we would see the light we'd realize our way of life causes damage to society. Can you see how that comes off as arrogant?

Actually when King George or his court made statements fitting that description it qualified as arrogant. Today when I see that same kind of "you're obviously a cowboy and not rationale if you fail to think like me" rambling from the UK I see it as sadly insecure. <- How's that for condescension!

 

[Cyrus]

So what you are essentially saying is that outlawing anything drives it underground, where it becomes more difficult to control - this is a very good argument for legalising many things (eg. heroine). It's dangerous, however, to apply the same reasoning to firearms for a simple reason: to legalise gun ownership is to make it socially acceptable, even normal, for people to have the power to, in principle, cause death, instantly. If you've only lived in America and haven't been exposed to other cultures, you wouldn't know any different, but reasonably well traveled people will tell you this is simply mad.

Perhaps you should expose yourself to other cultures, particularly American culture. Not stuff you see on tv.

I do get why the founding fathers wanted people to have the right to bear arms, but as I said before, any rational government must way this ideal in terms of the damage it can cause to society.

Clearly, you don't - otherwise you would not have said "any rational government..." Our constitution has a very real, clear, and rational reason for the 2nd amendment. You're just selectively ignoring it.

 

[Cyrus]

The issues surrounding suicide are complex and multilayered but it is safe to assume that poorer countries are more likely to have a higher suicide rate (for the simple reason that you are more likely to commit suicide if you are poor).

Do you have anything to back this claim?

The US shouldn't be compare itself with the likes of Belize in matters such as these. If you look at that list, you will find that the US has the highest suicide rate of the 1st world countries (with the exception of Turkey).

Even if that were true, so what? Does the 2nd amendment say anything about suicide rates in regards to the right to bear arms?

Well, there was a reason why I put quotation marks around 'influence' - the nra has form when it comes to bribing politicians (google seach 'nra bribe politicians') and click on the 2nd link - interesting video.

That's a nice misleading title.

 

[Proton Soup]

Even if that were true, so what? Does the 2nd amendment say anything about suicide rates in regards to the right to bare arms?

when wifebeaters are outlawed, only outlaws will wear wifebeaters.

 

[Cyrus]

when wifebeaters are outlawed, only outlaws will wear wifebeaters.

Only regulated, like chuck norris.

 

[vertices]

Did you look at the wikipedia link that I posted on this earlier? Countries with higher suicide rates include:
...

Seriously, do you have any facts to back up your opinions or do you just make them up?

EDIT TO ADD: It is instructive to note that according to wikipedia Belize has a lower suicide rate than the United Kingdom

yes you are most certainly right. I was clearly looking at the wrong table - apologies for this.

I will try and look for further studies over the next few days...

 

[vertices]

And I assure you, murder is not socially acceptable, despite the fact that we're well armed.

I wasn't saying that Americans think it is.

You seem to believe that if only Americans could see things your way, could come see how your lifestyle is, we'd be so much better off! And of course reasonably well traveled people would clearly agree with you, and if only we would see the light we'd realize our way of life causes damage to society. Can you see how that comes off as arrogant?

I have been to Europe, was in England for a summer in fact. Plus my step-father is British so I've had plenty of exposure to a non-American point of view. Do I want my culture to
change because of that experience? No, I don't

yes, I do realize that does come across as arrogant - poor choice of words.

I'm not saying you should change your culture (its not my place to say that and I have no interest in doing so), but I do strongly believe in the universality of human nature - if I had children, I would never want them to grow up thinking they need guns to feel physically and emotionally secure (I do think it'd be a bit twisted to instil this in them) because that would contribute to an already misanthropic culture, in which people do not trust each other and expect bad things to happen to them.

 

[vertices]

Clearly, you don't - otherwise you would not have said "any rational government..." Our constitution has a very real, clear, and rational reason for the 2nd amendment. You're just selectively ignoring it.

Yes, I can understand the need for an armed citizenry to overthrow any tyranny, should they seize control of the democratic institutions.

But there is plenty of evidence that democracy can also be restored/won through non-violent means: examples off the top of my head include Gandi's India, Apartheid South Africa, and Martin Luther King's pre-civil rights America...

 

[lisab]

I wasn't saying that Americans think it is.



yes, I do realize that does come across as arrogant - poor choice of words.

I'm not saying you should change your culture (its not my place to say that and I have no interest in doing so), but I do strongly believe in the universality of human nature - if I had children, I would never want them to grow up thinking they need guns to feel physically and emotionally secure (I do think it'd be a bit twisted to instil this in them) because that would contribute to an already misanthropic culture, in which people do not trust each other and expect bad things to happen to them.

I'm not a gun owner, I see no reason to own a gun. I don't see personal safety as a big factor in my life...in other words, it's not something I think about. Right now my front door is unlocked, and I'm home alone.

But I do think there is a segment of our population that is overly paranoid, and they *believe* they need a gun for protection. Is their paranoia caused by the fact that there are a lot of guns in the country? I really don't know, it probably doesn't help. I think that kind of paranoia is uncommon, though.

 

[russ_watters]

In my layman opinion, the arguments last year (or the year before - context: DC gun law) that the second clause in the 2nd Amendment is not predicated upon the first, is at least grammatical overreach.

Really long thread, really fast, but just my $.02:

I consider the 2nd amendment poorly worded, with a similar but much worse flaw of verbosity than the 1st amendment. In addition, the technology of weapons and warfare has changed vastly in the 200+ years since it was written, which requires clarification (I'd like to buy an M-1 tank...), so IMO, it requires amendment to clarify and update it.

But it is considered by many to be so sacred, that any attempt to touch it, no matter the particulars of the law or amendment, is avoided. As a result, we get laws written to challenge it and justices who have to draw too much on personal opinion to properly review such laws.