The massacre and assassination attempt in Tucson have reignited the ongoing battle over what limitations should be placed on our rights to bear arms.
Let's assume for a moment -- though there are many Constitutional scholars who disagree -- that the majority of the Supreme Court is correct in its view that the Constitution does in fact confer on Americans a right to bear arms that is similar in scope to our right to free speech and assembly. What does it actually mean, that we have a right to bear arms?
The Second Amendment reads: 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.
What exactly are "arms"? Do Americans have the right to bear atom bombs? How about biological or chemical weapons?
For the vast majority of Americans, the proposition that we have the right to bear our own nuclear, biological or chemical weapons is preposterous. But what about stinger missiles that can down commercial aircraft -- or bazookas? They are all arms.
Strict constructionists of the Constitution would want to look back at original intent. So let's think for a moment what the framers of the Constitution meant by "arms."
At the time the Constitution was written in the late 18th century, "arms" included weapons that had a fairly limited degree of destructive power. To Thomas Jefferson or Alexander Hamilton, the term "arms" referred to clubs, swords, single shot cannons, single shot muskets and pistols. Weapons that allowed people to rapidly fire many bullets had not been invented. There were no assault rifles, machine guns or semi-automatics. While there were a few double barreled rifles as early as the seventeenth century, the double barreled rifle would not be perfected until the late 1800's. Samuel Colt would not invent the revolver -- the six-shooter -- until 1836.
To the framers, the term "arms" referred mainly to single shot muskets and pistols.
But beyond the question of what the Constitution means by the "right to bear arms," we must also remember that no right is absolute. Each person's rights are constrained by the extent to which they impinge on another person's rights.
If you live by yourself on an island, you have an absolute right to do whatever you want. There's no one else around with whom your rights can conflict. But as soon as you join a society of other people, an individual's personal rights are limited by the degree to which they affect the rights of others.
Legislative bodies and courts were set up precisely to adjudicate the conflicts between these rights.
There is general agreement that the right to free speech does not give individuals the right to falsely cry "fire" in a crowded theater, because that conflicts with everyone else's right to avoid being killed or injured by the ensuing panic.
The right to free speech doesn't allow individuals to lie under oath to a court, because that would conflict with the rights of others to a fair trial.
Like any other right, the right to bear arms is limited by the rights of other Americans not to be killed or injured. So -- given the Supreme Court's interpretation of the Second Amendment -- the question is not whether Americans have the right to bear arms, but rather how that right should be limited because it conflicts with other rights.
I believe the answer to that question is clear. The mounting volume of gun deaths and injuries, the easy access that criminals and terrorists have to what amounts to weapons of mass destruction, require substantial limitations on the ability of individuals to use, carry and obtain guns. That need is enhanced by the technological advances that have been made in weapons technology in the years since 1789.
Our laws currently ban guns made of plastic, because they cannot be identified by metal detectors.
There are very few Americans who would support repealing our current laws banning guns on commercial aircraft.
For many years we have banned personal possession of large caliber machine guns -- including those that could bring down airplanes.
In 1994, Congress and the President passed a bi-partisan assault weapons ban that outlawed private possession or sale of specific types of fully and semi-automatic weapons whose principle uses are to kill people in war, or by police forces. That bill also banned the possession and sale of high-volume magazines of the sort that allowed the Jared Lee Loughner, the accused Tucson killer, to fire thirty-one shots in rapid succession before stopping to reload. That bill sunset in 2004, and the Republican Congress and Bush Administration refused to extend its provisions.
Had it still been in effect it would have been likely that Loughner -- who bought the magazines legally -- would have had to reload after firing off only 10 rounds, which was the maximum magazine capacity under the assault weapons ban. Since nineteen people were killed or injured, that would have preventing the death or injury of at least another nine human beings.
When the ban expired, assault weapons once again began to flood our streets -- and -- according to the Mexican government -- have played a major role in the drug violence that has torn apart the border region. Regardless of the increasing gun carnage, many Republicans are pushing to expand the right to carry weapons of all sorts. They oppose reinstituting the assault weapons ban and even want to allow people to carry guns into schools, churches, restaurants and bars.
Arizona recently eliminated the requirement that individuals get permits to carry concealed weapons.
Their argument is that if more people carried guns, there would be people around with weapons to stop other people who would use their guns against their fellow citizens. It's the "quick draw" argument. I'm not sure many people would go for that argument in a plane, or a crowed restaurant, or in a bar where most of the customers have thrown back a few drinks - particularly if the whole crowd were carrying Glocks with the ability to squeeze off 31 rounds each in a matter of seconds. Frankly, it's ridiculous.
Let's see how many of the Republicans in Congress who want to allow everyone to pack assault weapons feel about eliminating the ban on weapons in the Capitol. Why not just let any old American (or other visitor) wander the halls with Uzi's while we're at it?
You hear, "guns don't kill people, people kill people." Sure. But if Loughner had a knife or a club instead of a semi-automatic Glock with extended magazine, lots of people would be alive today.
We all agree that someone like Loughner -- or any other citizen -- should not be permitted to possess a nuclear weapon or some other weapon of mass destruction. Why should he be permitted to carry semi-automatic Glock with extended magazine? It is also a weapon of mass destruction. Its only purpose is to kill or injure large numbers of people. It can't kill hundreds of thousands, but we know empirically that within a few seconds it can kill and injure nineteen.
The argument that our society would be safer if we had even more guns -- and especially high-powered guns -- is simply absurd. Hopefully the shock of the appalling massacre in Tucson will prompt us to snap out of our NRA-induced stupor and pass restrictions on weapons that effectively balance the right to bear arms with our rights to life, liberty and the pursuit of happiness.
Robert Creamer is a long-time political organizer and strategist, and author of the book: Stand Up Straight: How Progressives Can Win, available on Amazon.com.
Take for example the Assault Weapons Ban. In 1994 Congress banned certain models of firearms. They were all semi-automatic weapons (just like 98% of all firearms on the planet) which means one bullet goes downrange everytime the trigger is pulled. They weren't "machine guns" and none were more deadly than what could be purchased at Wal Mart. When these models were banned the gun companies made a few cosmetic changes to their lines, gave them new part numbers, and kept on selling their weapons without any undue hindrance. The ban was useless in that "assault weapons" are used in less than .01% of all crimes. It seems criminals don't like to carry large, bulky, expensive rifles while committing crimes.
If anyone wants to have a serious conversation about gun control they should first take a firearms course and become educated.
The Founders never envisioned the kind of large standing army of today. They were against large standing armies, because, historically, those armies had been used by governments against their own people. Thus, the Founders also meant for an armed citizenry, to overthrow, by force of arms, any American government that became tyrannical, and reinstate the Constitution and Bill of Rights. Today, you cannot utter that idea without being labeled a dangerous right winger. Let's not forget however, that the Founders WERE radicals and revolutionaries. No government ever considers anything it does as illegal or unconstitutional.
Since I have a limited number of words that I am allowed in this forum, for arguments refuting Mr. Creamer's erroneous conclusions/solutions, I post a link to an article in Pajamasmedia.
http://pajamasmedia.com/blog/before-talking-about-gun-control-first-learn-something-about-guns/
As for the "we need to protect ourselves from the big bad gummint" thing, I am reminded of something author Robert Anton Wilson once said:
"The Gun Lobby says we need guns to protect ourselves from the present government. Heiligefliegendekindersheisse! -- Have they looked at the government lately? To protect ourselves against the current government we each need 1700 tactical nuclear weapons, at least 100 earth-to-air missiles, 50,000 flame throwers, 10,000 grenade launchers and at least a hundred times as many assault weapons as NRA now owns, plus biologcal and chemical (viral) weaponry. . Maybe instead of going to war with Washington, when they have us totally outgunned, we should try reasoning and negotiating with them?"
http://www.rawilson.com/thoughts.html
http://www.newyorker.com/arts/critics/atlarge/2011/01/17/110117crat_atlarge_lepore
Note the section on the 2nd amendment. It is only in recent times that the "right to bear arms" has been interpreted as an individual right outside its use within regulated militias.
Many in the pro-gun camp want to cite Heller. But that was in 2008, after more than a decade of movement conservative (originalist) judges have taken key seats, including on the Supreme Court.
While the left slept, movement conservatives took over the judicial system.
The Constitution was written in such a way as to provide a great deal of room for interpretation. Many at the time of debate over its ratification complained about that, including, as the article shows,. Patrick Henry.
Let's admit that we're talking about differing interpretations, and see how those interpretations have changed through the decades. They will change again. It's an ongoing conversation in a democracy.
Not really true. At least as far back as 1875 the US Supreme Court has been writing decisions which support the individual right reading.
"But that was in 2008, after more than a decade of movement conservative (originalist) judges have taken key seats, including on the Supreme Court. "
While the decision as to whether or not D.C.'s laws were violating the Second Amendment, the court was split 5-4, but all 9 justices agreed the Second protects an individual right.
"District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for private use within the home in federal enclaves. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states,[1] which was addressed later by McDonald v. Chicago. It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self defense.[2]"
. . ..
Heller referred only to federal enclaves, not states. And as is noted in the section above, and the section on the dissenting judges, precedent was not with the majority. That majority overturned long standing precedent that said the 2nd amendment referred to regulated militias, and was a collective right, not an individual. Again, it is only in recent times that with the domination of our judiciary by right wing judges, that this new interpretation of gun rights has taken place.
Judge Stevens: "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
The undetectable plastic gun is a myth. It never existed. There are, however, many very legal firearms which use a lot of platsics, but they are quite detectable.
"There are very few Americans who would support repealing our current laws banning guns on commercial aircraft."
They aren't banned. Anyone can transport them in checked baggage, plus Federal Marshalls, flight deck officers, and even some regular police officers can and do carry firearms into the cabin.
The amendment says nothing about any right to carry a LOADED weapon. Nor does it say anything about SHOOTING that weapon. No right is assigned to either a loaded weapon or the discharge of that weapon.
All it says is that the government can not prevent you from carrying arms.
If the government tomorrow were to ban all bullets, ban their sale or possession, it would not be going against the 2nd amendment.
I think there is plenty of room to debate the issue on health and safety grounds, to come to a reasonable consensus regarding sensible restrictions about firepower and number of bullets per clip, etc. There is no need to worry about the Constitutional aspect of that, because the amendment simply does not cover bullets or firing the weapon itself.
Yes, actually, it would be, and there have even court cases which have said as much.
"to come to a reasonable consensus regarding sensible restrictions about firepower and number of bullets per clip"
Define the thresholds and defend them.
It has never been static,
http://www.salon.com/news/politics/war_room/2011/01/15/saul_cornell_guns/index.html
Again, there is nothing in that amendment protecting your right to a loaded weapon. There is nothing in that amendment protecting your right to shoot it, or have bullets in it.
It just says "bear Arms."
It is my hope that we move into a pro-human life, anti-gun direction.
as far as i know the pro-rkba crowd is fine with "arms" meaning rifles and shotguns and handguns and knives and clubs....not nukes...not chems...not bios...
Guns on the civilian side of that line (including Glocks and other similar pistols going back a hundred years, and non-automatic rifles under .51 caliber) are regulated under the Title 1 provisions of the National Firearms Act; guns on the military/police/government side of that line are regulated under the much more draconian Title 2 provisions, the same laws that govern howitzers, bombs, and shoulder fired missiles.
It seems to me that if the term "Weapon of Mass Destruction" is now being used to refer to a relatively low-powered Title 1 civilian pistol that is less capable than a some Third World soldier's 60-year-old worn-out rifle, then the term has officially been diluted into inanity.
The government does not restrict certain mechanisms of speech because they are more powerful than others. Nor should it restrict certain types of firearms because they are more powerful.
We know also that states with the highest percentages of gun ownership have the highest rates of gun violence, and the lowest have the lowest rates:
http://www.theatlantic.com/national/archive/2011/01/the-geography-of-gun-deaths/69354/
and
http://maddowblog.msnbc.msn.com/_news/2011/01/14/5834927-links-for-the-113-trms
It makes perfect sense to reduce the lethality of guns and make it harder to obtain them. They provide no societal benefits whatsoever, at an all too high cost in blood.
Only to a degree.
"We know also that states with the highest percentages of gun ownership have the highest rates of gun violence, and the lowest have the lowest rates"
We also know that there are several exceptions to that rule, showing that the premise of causation is not really true.
"They provide no societal benefits whatsoever,"
Also false. Defense, hunting, recreation, and competition are some of the primary benefits.
No, we shouldn't ban guns from being purchased, but we should make it more difficult for people to purchase a firearm and that in turn will prevent physcos out there from going around killing and injuring innocent people.
We can't walk into a store and buy an asthma inhaler now, because it was deemed too dangerous. But Loughner was able to legally purchase a Glock and he killed six people, including a 9-year-old girl.
Guns kill. They don't just present a possible, in the future, maybe, potentially indirect danger. They present a clear and present danger, wherever they are. We need to do everything we can to reduce and eliminate that danger. Your right to play cowboy is trumped by society's right to live.
Incorrect. The first 13 words do not place any limits on the right to keep and bear arms, nor do they create that right. I will gladly walk you through the grammar of the sentence if you would like.
"By late 18th century standards: single shot muskets and pistols, swords, knives, clubs, pikes, heck I'll even throw in a smoothbore cannon and small rocks"
And let's apply that same logic to the First Amendment. I'll be over this weekend to confiscate your TV, telephones, radios, computers, printers, etc.
You missed the entire point of my post; obviously political satire is lost on you. Jurists and lawmakers have for years placed reasonable restrictions on various amendments, including the 1st and 2nd, for pretty obvious reasons. That was my whole point. Strict Constructionism has never existed and makes no sense. You can't point to the 2nd amendment as an excuse to own any kind of "arms" you want, anymore than you can point to the 1st amendment as an excuse to commit perjury, or slander, or copyright infringement (or, say, sell exploding TV sets or carcinogenic printer ink).
Modern jurists have interpreted the 2nd Amendment fairly liberally, mainly for the practical reason that millions of people already owned firearms and they were (mostly) used for peaceful, non-militia purposes. The 2nd Amendment is rather poorly worded, in my opinion. In any other legal area (contracts, for example), the "militia" phrase would be interpreted literally and at face value. Your attempt at torturing the meaning of a clearly written dependent clause would probably earn you a reprimand from the judge.
If the purpose of the amendment is so that the people can have in their possession the types of weapons that are needed to form a militia to effectively defend the security of the State, then those weapons need to be effective for that purpose.
That obviously should include modern military weapons.
the right to own and carry a gun does not allow you to murder because that would be against the law...