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Firearms background checks

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  • Registered Users Posts: 15,561 ✭✭✭✭Leroy42


    You again fail to address the salient point. The level of mental health issues might be statistically similar in say Canada, as in the US. I would wager that the resources available for treatment are markedly poorer in the US. That is where I would start, if I was looking to reduce deaths, as suicide is the highest contributor by far.

    What is the difference is spend? I absolutely agree that more should be done on mental health issues, and luckily we are constantly getting better in that regard with issues such as PTS and the like now being taken seriously. But given that it can never be eradicated, and the fact that in many cases on mass shootings they was no prior reason to incarcerate the individual, then taking away the ability to carry out lethal violence is a good step. It is not the only step, it is one of the measures.
    As to you second part, there multiple benefits to gun ownership. Hunting, sport, personal self defense, defense against tyranny (which you and others are always quick to rubbish). Crime rates have been falling in general for decades, which includes periods of harsher restrictions on ownership (Assault Weapons Ban) and periods of looser restrictions. I haven't seen any statistics one way or another.

    Hunting - We leave in a world of industrialised farming. Very few people need guns in which to hunt other than sport. So that fits in with the selfish tag. But I am not advocating that this be stopped. But that is is managed and licenced and clubs that the liability for their members. If you are into hunting then surely a hunting club where you can avail of a range of weapons is a good thing?

    Sport - OK, again this can all be done in clubs.

    Personal Self defence - there is little evidence that this makes any difference but again, this can be far more controlled than it is now and should be subject to far stricter controls and limits on number and type of weapons.

    Defense against Tyranny - when was this last required? And who will decide? There are a large amount of people in the US that think Trump is showing such signs - should they be allowed to start attacking the state? (that goes for any POTUS, Major, Governor, Senator Congressperson that they happen to disagree with). Should those that are against abortion be allowed to kill doctors or the legislature?

    Crime rates - are these different in the US than in other countries without the same access to guns? Are they different in the states with tougher/easier gun access? But on the statistics, the very powerful nature of guns, the fact they are touted as not only a deterrent but a necessity for personal safety, wouldn't you think people would have pretty good evidence to back up the claim?

    Define short range. Why place any impediment on someone's ability to defend themselves. Your scenario accepts the reality of a person owning and employing a firearm in a lethal fashion, what is the purpose of reducing calibers etc. Should all knives be restricted in blade length so as to prevent excess penetration of the human body? You also somewhat ironically say hollow points should be banned, when they are the type of round most apt to fit the confines of your scenario.

    Self defence is pretty well established in law. Short range should mean why you are in physical danger. Why would it be seen to be excessive for me to run across a street to punch someone but you deem it necessary to be able to kill someone from a hundred yards? Sure at 100 yards you may feel intimidated, but there are plenty of options other than killing the person. Short range should mean why you are in physical danger.

    And there are restrictions on knives. People are not allowed carry around samurai swords and use them in a bar fight.

    In terms of the ammunition, I have already said I am not an expert. Simply change Hollow point for whatever type of round you like. The point being that a standard should be agreed upon and all ammunition restricted to that standard.
    By all means, start a movement, make your case. As it stands, firearm ownership is a right, unlike car ownership. If the Constitution changes then that's the law folks ought to abide by.

    I am making the case and your response so far has been to point out I used the wrong type of ammunition and that you like hunting. You have failed to address the issue of gun control in any way. The constitution won't change on its own. Its up to the people of the US to decide what they want there country to be. At the present time selfishness and fear are the overriding factors. I don't see that changing any time soon.

    Do you feel the same way about other guaranteed rights? How many people have been driven to kill by the words of others or a religious text?

    And that is totally wrong. But that is an abuse of the text, not the core part of it. A gun is designed to kill. That is its purpose. Used correctly. There is a world of difference.


  • Registered Users Posts: 10,110 ✭✭✭✭AbusesToilets


    Leroy42 wrote: »
    What is the difference is spend? I absolutely agree that more should be done on mental health issues, and luckily we are constantly getting better in that regard with issues such as PTS and the like now being taken seriously. But given that it can never be eradicated, and the fact that in many cases on mass shootings they was no prior reason to incarcerate the individual, then taking away the ability to carry out lethal violence is a good step. It is not the only step, it is one of the measures.



    Hunting - We leave in a world of industrialised farming. Very few people need guns in which to hunt other than sport. So that fits in with the selfish tag. But I am not advocating that this be stopped. But that is is managed and licenced and clubs that the liability for their members. If you are into hunting then surely a hunting club where you can avail of a range of weapons is a good thing?

    Sport - OK, again this can all be done in clubs.

    Personal Self defence - there is little evidence that this makes any difference but again, this can be far more controlled than it is now and should be subject to far stricter controls and limits on number and type of weapons.

    Defense against Tyranny - when was this last required? And who will decide? There are a large amount of people in the US that think Trump is showing such signs - should they be allowed to start attacking the state? (that goes for any POTUS, Major, Governor, Senator Congressperson that they happen to disagree with). Should those that are against abortion be allowed to kill doctors or the legislature?

    Crime rates - are these different in the US than in other countries without the same access to guns? Are they different in the states with tougher/easier gun access? But on the statistics, the very powerful nature of guns, the fact they are touted as not only a deterrent but a necessity for personal safety, wouldn't you think people would have pretty good evidence to back up the claim?




    Self defence is pretty well established in law. Short range should mean why you are in physical danger. Why would it be seen to be excessive for me to run across a street to punch someone but you deem it necessary to be able to kill someone from a hundred yards? Sure at 100 yards you may feel intimidated, but there are plenty of options other than killing the person. Short range should mean why you are in physical danger.

    And there are restrictions on knives. People are not allowed carry around samurai swords and use them in a bar fight.

    In terms of the ammunition, I have already said I am not an expert. Simply change Hollow point for whatever type of round you like. The point being that a standard should be agreed upon and all ammunition restricted to that standard.



    I am making the case and your response so far has been to point out I used the wrong type of ammunition and that you like hunting. You have failed to address the issue of gun control in any way. The constitution won't change on its own. Its up to the people of the US to decide what they want there country to be. At the present time selfishness and fear are the overriding factors. I don't see that changing any time soon.




    And that is totally wrong. But that is an abuse of the text, not the core part of it. A gun is designed to kill. That is its purpose. Used correctly. There is a world of difference.

    Restrict, restrict, restrict. At the core of the matter for you, is the desire to be rid of guns. That's a mindset shared by many who wish to implement gun legislation. I look at the situation from a markedly different perspective. Your sentiments with respect to hunting, shooting, defense etc are to me poorly thought out and a product of ignorance and fear. Your desire to improve public safety and health is admirable and one I share.much could be accomplished without taking away freedoms from people who are responsible, in response to those who are not and unlikely to be so, regardless of the law.

    Would those who support common sense reform, such as improved background checks, also support other common sense ideas, such as removing suppressors and short barrelled rifles from the restricted purchase classification they have currently?


  • Registered Users Posts: 6,135 ✭✭✭screamer


    Maybe too simplistic an idea, I know they have this right to bare arms in their constitution, so how about no background checks for your weapons, but all you want, but ammunition is vetted.


  • Moderators, Society & Culture Moderators Posts: 16,280 Mod ✭✭✭✭Manic Moran


    listermint wrote: »
    But your brilliantly emotive post about intrusion in your liberties and some 'third parties' and extra cost to you... Was what ?

    I didn't use the word 'liberties', so stop projecting. The involvement of third parties and additional investiture of time and money are not 'emotive', they are actual, measurable effects. Further, the more obstacles and hoops there are for someone to follow a process, the more likely people are in the real world to simply not follow it in the first place.

    Thus it is perfectly good sense to pick the least intrusive mechanic to achieve the desired effect.
    To be frank you are no different to the rest of the gun folks . You will put as many blockers in the way to stifle any checks on guns until it becomes unstoppable. Years of the same years of death.

    You have this entirely reversed. I'd like to make it -easier- to do checks, not put blockers onto it.
    You have answered your own question. A round that is designed to kill a person from short range. So do away with the other types (hollow points etc). Again, I am not gun expert, so would leave the details to experts.

    Your last line rather highlights the problem. Hollow-points are the preferred short range pistol ammunition because they have high effectiveness, at the cost of long-range capability. It's what you'd find in your typical police sidearm, and what is in my own personal defense pistol. And, unfortunately, the politicians who are anti-gun are, almost invariably by default, not gun experts either. (Not that this is unique to firearms. Ask the health industry about health legislation, the aviation industry about aviation legislation (Particularly the act passed after the Colgan Air crash) and so on.

    For example, have you noticed that SWAT teams have moved from low-velocity pistol calibre weapons like the MP-5 of the 1980s to high-velocity assault rifles like the AR15 in the 2000s? The reason being that the latter are actually safer in urban environments, because the faster the round is going, the better it fragments in obstacles like walls (or people). This particularly so if using frangible ammuntion. It may be counter-intuitive, but that doesn't make it incorrect.

    The idea of stored weapons at clubs is inherently a bad one, even the Gardai aren't fans of it in Ireland. It tends to tell folks where to go find guns to steal.
    Maybe too simplistic an idea, I know they have this right to bare arms in their constitution, so how about no background checks for your weapons, but all you want, but ammunition is vetted.

    Already been addressed in the courts. It's like saying you have the right to publish anything you want due to free speech, but you won't be allowed to own a pen to write it with. It's called "ancillary rights". The Appeals Courts have already ruled, for example, that the Constitutional right to a firearm confers a constitutional right to a place to shoot it. Supreme Court will be addressing a similar one this term.

    Since I now no longer live in California, I have de-Californiaised my first rifle. Note the length of the video below, about two minutes. You will recognise the rifle, the Irish Army uses basically the same thing (except they have a full-auto selector, I don't). California has had an assault weapons ban for decades, it is more strict than the now-defunct Federal ban, much loved by anti-gun folks, because it supposedly achieves something.

    https://youtu.be/UblBGVNLfZ4

    Watch the de-californiasation process, and explain to me how this legislation is supposed to help anything. After all, California has a ban and is safer as a result, right? But the folks advocating the legislation don't actually understand how a gun is built, so no wonder the law is pointless.


  • Registered Users Posts: 15,561 ✭✭✭✭Leroy42


    Hollow point,not hollow point, it is irrelevant. But it is typical of any discussion about gun control, the gun advocates like to talk details and we end up discussion type of guns rather than the overall policy.

    As for me not being an expert, we are discussion overall policy here, as in any policy the overall aim is decided and then experts come in to discuss the possibilities and limitations.

    Are only experts allowed to discuss things then should we follow the same for issues like drugs? Should only drug addicts and drub dealers be allowed to come up with policy?

    And what about abortion? Surely these means that only women should be allowed to make any decisions.

    There is a clear issue with gun deaths in the US. That is undisputed. What can be done in short/medium and long term so that this doesn't continue? Clearly limiting the availability of guns will have an effect, the argument that Manic and others use is that the effect is not big enough to justify them losing the ability to play with guns.

    I don't agree, anymore than I agree with letting people drive whatever way they want and without insurance.

    So if, as I suspect, a full rule out of all firearms is never going to fly, what can be done to limit the damage that is being caused. I have yet to see an justification that the general population need access to firearms at all, but certainly not anything bigger than a handheld weapon.

    A limit on the number of rounds would be a start, a limit on the type of reloaders, a limit on the type of ammunition. I can also see no justification to owning more than one weapon, but I am sure there are cases that require it and they should be looked at and decided upon based on individual case need.

    But the problem won't be solved because people in he US, or at least the people making the decisions don't think there is a problem, not one that can't be solved with thoughts and prayers. Until the mindset changes then nothing will change.

    But based on the polls, there is clearly a movement towards something happening. Trump calling of a national emergency for the border opens up the possibility that the next DNC POTUS will use the same justification to call a halt to gun sales in the wake of the next massacre that happens.


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  • Registered Users Posts: 10,110 ✭✭✭✭AbusesToilets


    Leroy42 wrote: »
    Hollow point,not hollow point, it is irrelevant. But it is typical of any discussion about gun control, the gun advocates like to talk details and we end up discussion type of guns rather than the overall policy.

    As for me not being an expert, we are discussion overall policy here, as in any policy the overall aim is decided and then experts come in to discuss the possibilities and limitations.

    Are only experts allowed to discuss things then should we follow the same for issues like drugs? Should only drug addicts and drub dealers be allowed to come up with policy?

    And what about abortion? Surely these means that only women should be allowed to make any decisions.

    There is a clear issue with gun deaths in the US. That is undisputed. What can be done in short/medium and long term so that this doesn't continue? Clearly limiting the availability of guns will have an effect, the argument that Manic and others use is that the effect is not big enough to justify them losing the ability to play with guns.

    I don't agree, anymore than I agree with letting people drive whatever way they want and without insurance.

    So if, as I suspect, a full rule out of all firearms is never going to fly, what can be done to limit the damage that is being caused. I have yet to see an justification that the general population need access to firearms at all, but certainly not anything bigger than a handheld weapon.

    A limit on the number of rounds would be a start, a limit on the type of reloaders, a limit on the type of ammunition. I can also see no justification to owning more than one weapon, but I am sure there are cases that require it and they should be looked at and decided upon based on individual case need.

    But the problem won't be solved because people in he US, or at least the people making the decisions don't think there is a problem, not one that can't be solved with thoughts and prayers. Until the mindset changes then nothing will change.

    But based on the polls, there is clearly a movement towards something happening. Trump calling of a national emergency for the border opens up the possibility that the next DNC POTUS will use the same justification to call a halt to gun sales in the wake of the next massacre that happens.

    The problem with these discussions is that folks on your side of the issue want to ignore the details and operate on an emotionally driven fashion. The result being poorly thought put initiatives that have little to no chance of success legislatively and unlikely to accomplish anything positive at all.

    No doubt you're in favor of reinstating something akin to the previous assault weapons ban, however I doubt you could articulate what the criteria would be in deciding what to ban, or why, nevermind what would be accomplished by that.

    Details matter, the alternative is poorly thought out laws that only punish people who've done nothing illegal.


  • Registered Users Posts: 15,561 ✭✭✭✭Leroy42


    Punish people? Not being able to own a fire an assault rifle is judged a punishment?

    Therein lies the problem, and it stems directly from the 2nd Amendment and how it is interpreted.

    Do you feel punished for not being able to own nuclear weapons? What about drugs? Do you think people are being punished by not being allowed to take whatever they want?

    You continually point to issues with my ideas, which is great and welcome as that is what we are here for, but on the fundamental issue of limiting gun ownership to handheld, defence targeted rather than killing targeted you have not made any argument against it only that you like hunting.

    When people make the argument that limited gun control in certain states hasn't worked it fails to mention that open borders between states means local laws are of limited benefit and the fact the pretty much every other country in the world proves that gun control, along with education, mental health services etc, absolutely do work.

    The thinking seems to be that Americans simply cannot ever stop shooting each other.


  • Registered Users Posts: 10,110 ✭✭✭✭AbusesToilets


    Leroy42 wrote: »
    Punish people? Not being able to own a fire an assault rifle is judged a punishment?

    Therein lies the problem, and it stems directly from the 2nd Amendment and how it is interpreted.

    Do you feel punished for not being able to own nuclear weapons? What about drugs? Do you think people are being punished by not being allowed to take whatever they want?

    You continually point to issues with my ideas, which is great and welcome as that is what we are here for, but on the fundamental issue of limiting gun ownership to handheld, defence targeted rather than killing targeted you have not made any argument against it only that you like hunting.

    When people make the argument that limited gun control in certain states hasn't worked it fails to mention that open borders between states means local laws are of limited benefit and the fact the pretty much every other country in the world proves that gun control, along with education, mental health services etc, absolutely do work.

    The thinking seems to be that Americans simply cannot ever stop shooting each other.

    First off, can you define what an assault weapon is? Probably be useful if you're wanting to ban them. I don't believe people should be criminals for taking drugs and I don't believe they need nuclear weapons. I would feel discriminated against if an attempt was made to prevent me from owning a rifle, yes.

    Can specify the differences in your mind between defense targeted and killing targeted? As I've always been taught, if I'm firing my gun at someone, it's because I want to kill them.

    Your emotive language, as ever, looks to create an impression that most of the people being killed in the US by guns are murders, when it has been repeatedly shown to you to not be the case.

    You want to limit/ eliminate guns because you fear and dislike them. You present ideas framed by that desire. I want to reduce the amount of people dying.


  • Moderators, Society & Culture Moderators Posts: 16,280 Mod ✭✭✭✭Manic Moran


    As for me not being an expert, we are discussion overall policy here, as in any policy the overall aim is decided and then experts come in to discuss the possibilities and limitations.

    Are only experts allowed to discuss things then should we follow the same for issues like drugs? Should only drug addicts and drub dealers be allowed to come up with policy?

    Any policy must be grounded in what the effect is in the real world. One can 'policy' anything with the expectation that the experts will figure it out, but there are at least three problems. One is that sometimes the policy is just driven by ignorance (The most egregious example I can think of offhand being the aforementioned Colgan Air response legislation which mandates that airline pilots must now fly in circles for 1,500 hours before being allowed fly commercial), is indefineable in practice (eg assault weapons ban), or plain impossible in the real world: California hasn't permitted a new type of pistol to be sold in the State in several years because they have mandated a technology which no manufacturer possesses. (And even if they did possess it, it still wouldn't do what the politicians think it would do, because they seem to get their ideas from watching CSI, not from actually talking to firearms experts).
    The perfect case in point is the assault weapons ban. It is a policy decision, but their first problem came up when the experts told them there was no such thing as an assault weapon. So the politicians fudged. The first attempt at implementing policy thus was quite simply politicians going through a picture book of guns, and going, "We'll ban that one.. and that one... and that one..." (Roberti-Roos act, 1989). The second attempt in California, 2000, which attempted to describe certain features was also easily circumvented. The third attempt, effective last year, has also failed to achieve what the politicians want by policy, but cannot be done in practice. Now, if they decided to go on a characteristic which actually exists, such as australia's ban on magazine-fed, semi-automatic, center-fire long rifles, it could technically be done in practice (though there are alternative legal and political hurdles, before one gets to the compliance issue). But that's not what the politicians are trying for, presumably as a result of a policy decision (likely reflective of those hurdles).

    So, take your desire for a specific type of ammunition. By ballistics, the absolute worst type of ammunition at any range and in any environment is pistol calibre ammunition. But the quintessential defense weapon in the US is pistol calibre because what suits anyone in practice is more than merely ballistics. That's before you get to the question of doing other things like sports shooting or hunting. What policy guidance would you give the ATF to draw up regulations which would achieve your goal of allowing personal defense ammunition without unwanted secondary consequences such as depriving the US citizenry of the overwhelmingly preferred form of personal protection firearm (Which isn't legal anyway, as Supreme Court has opined).
    Are only experts allowed to discuss things then should we follow the same for issues like drugs? Should only drug addicts and drub dealers be allowed to come up with policy?

    I suspect that, unlike with firearms, politicians who decide which drugs should be prohibited for recreational use do actually enlist the aid of folks who know very well what they are talking about. They do not, however, attempt to legislate on what sorts of medicinal drugs should be available in the US and which should not, leaving that fully in the hands of the FDA.
    I can also see no justification to owning more than one weapon, but I am sure there are cases that require it and they should be looked at and decided upon based on individual case need.

    Why not own more than one weapon? How many can you shoot at once? You know what one weapon I would own if I could only have one? An AR-15. It is easily configurable for all roles from personal defense (though concealed carry is tricky, even with the pistol configuration) through hunting, and because of evil features like a collapsible stock, I can shoot it, the wife can shoot it, the daughter can shoot it, despite the great differences in our heights, arm length and so on. What's the one type of weapon anti-gun folks want banned most?

    Some 27 million firearms are legally purchased a year in the US, who is going to do the 'standard of need' review for all these on an 'individual case need', and how would it be paid for?
    A limit on the number of rounds would be a start

    What would be an appropriate limit? As a policy decision, of course. I'll easily blow through a few hundred in an afternoon, for example.
    Trump calling of a national emergency for the border opens up the possibility that the next DNC POTUS will use the same justification to call a halt to gun sales in the wake of the next massacre that happens.

    The national emergency legislation doesn't work in that way.


  • Registered Users Posts: 1,745 ✭✭✭Irish Praetorian


    Has the question of gun control in the US not foundered simply on the ambiguity surrounding the existence of and purpose of the 2nd Amendment in the United States? Try as I might in other fora, I struggle to get a single answer from proponents of the 2nd Amendment as to what the purpose of the right to bear arms is. Some will give me the answer most easily placed within the text of the Amendment, which is to say that it is for the purpose of maintaining an armed populace in the event that the government devolves into a tyranny (be it foreign or domestic in nature). Now that appears to have been the understanding of the Supreme Court up until the Heller case which now guarantees any 'traditionally lawful purpose', but I can recall that previously the interpretation was purely for military purposes (theoretical or otherwise). I seem to recall a case in the US around WW2 where several individuals were found to be in violation of the law for bringing a number of shotguns across state lines, and this act was not protected by the 2nd Amendment as the weapons weren't of military grade.

    Now as I see it, the problem with this argument, specifically that guns might be needed for defence against tyranny, is that it is essentially it predicates itself entirely upon what appears to be an entirely theoretical scenario, wherein a government (foreign or domestic) is intent upon tyrannizing a people, but the people are somehow unable to obtain force of arms to resist. Now to my mind, access to the kind of small arms that come under the remit of the 2nd Amendment, has not exactly been a limiting factor in any resistance to tyranny that I can think of in recent years (I was going to say Bosnia but looking into the matter it appears heavy equipment was their limiting factor). Now I'm aware that will strike people as a broad statement, but I would only submit that when a sizeable group of people are sufficiently aggrieved with a source of authority, access to small arms is not a major obstacle, and the most pressing example I can think of this in recent years is Libya, which appears to have gone from a nation with little tradition of civilian gun ownership, to being a profligate example. Its been a frequent talking point amongst gun-rights activists that 'bad guys' will always get access to guns; I'm not naive enough to believe that enough legal action or 'control' or 'attitude changes' will ever change that, but that also means that the argument of an armed citizenry preventing tyranny is a rather specious one.

    Now naturally, with the advent of the aforementioned Heller case, the answers to 'Why?' for the 2nd Amendment have been expanded to include anything from private recreational use, to hunting and to self defence. Yet I struggle to think of any piece of equipment so destructive that we would permit its free distribution without so much as registration and in cases of necessity; cars and trucks are often brought up as an example yet, our entire existence would simply grind to a halt if we tried to do away with motor vehicles, and even still, access to vehicles is only permitted under set legal conditions. The only argument that really seems to pass muster for me is the one of self defence, which especially in the rural parts of the US where 'johnny law' can be hours away by phone, seems not just advisable but almost practically necessary. Yet even so, I fail to see why a concession to such a need would demand the fairly lax culture that surrounds guns in the US - I'll gladly be corrected by those more knowledgeable on the matter, but does home or self defence really require something more than a .38 or a shotgun, or at most a hunting rifle?

    In any case, it's a fairly expansive issue but I think it might be helpful for both sides if they stopped to think for a moment about what they want, what they need, and what the practical implications of policy changes might be. I do not care to be mistaken for a complete 'guns r bad' loon, yet I think a more critical assessment of their role in the US is demanded.


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  • Moderators, Society & Culture Moderators Posts: 16,280 Mod ✭✭✭✭Manic Moran


    The problem with the 2A historical argument is that there is something of a bit of overlap between the whole "rebelling against the government" thing and the whole "military protection thing". And, unfortunately, almost nobody really has it right.

    2A was not, contrary to a lot of opinion in the pro-gun side, put in as a sort of 'failsafe' against the government (though I would observe that folks with nothing more lethal than an AK-47 and a Kawasaki have been giving the US military quite a bit of trouble for the last two decades or so, so I'm sure a few million folks with rifles would be quite a problem for the US government), it was put in as a protection for the ability of local governments to basically create posses to put down uprisings and the like.

    A lot of folks forget this detail of US law, but when the 2A was created, the concept of "incorporation" had not yet been invented, and it would not be for some 100 years. This was a time that "The United States" was very definitely a "them", not an "it". It said so in law. Federal law quite literally only affected what the Feds did, and just because you had the right to free speech in the federal Constitution did not mean that it had any effect at all on what the State or City ordinances said. Instead, your "first amendment rights" were guaranteed by your State Constitution, whatever paragraph that happened to be. For example, the Pennsylvania Constitution (where Congress was before they invented Washington DC) protects the freedom of speech in Article 1 section 7. (The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever by made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.. The right to bear arms would be found in Art. 1 Sec 21 of the State Constitution. The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. . The idea of 2A applying to any individual against all takers only really came up after the Civil War with the incorporation doctrine. (And it was a known concern: If 2A, which was not limited to who 'the people' are like some southern states did, were to apply to all the States, then black men could be armed. This was observed in the Supreme Court at the time.). Note that to this date, some 44 States have a right to bear arms in their Constitutions, some of which are extremely explicit. So, in, say, Pennsylvania in 1840, you wouldn't be talking about your 2nd Amendment Right, you'd be talking about your Section 21 Right, which is just as strong.

    At the time that the Bill of Rights was being written, a couple of rather nasty rebellions had just been put down by the States. Two notable ones are the North Carolina Regulators of 1771 or so, and particularly relevant to the framing of the Bill of Rights, Shay's Rebellion in Massachusetts 1786-7. The States wanted to ensure that they were capable of calling up a militia to deal with rebellions. To that end, they wanted 2A to prohibit the Federal Government from banning State militias. Insofar as it goes, the "Collective interpretation" people have a point.

    However, what 2A was not intended to address, because nobody seemed to think it was needed for two reasons, was anything to do with individual firearms. Firstly, since it was basically a given that everybody had access to guns, and there was little thought given to the concept of not having them, and secondly, because the Federal Constitution had no particular authority over law enforcement within the States anyway. After all, the state militias which the States wanted to protect were quite simply bodies of men called to the colors, bringing along the weapons which they already owned for their various lawful purposes: Generally hunting, varminting, protection, and mass uprisings of the people against the government, such as that of King George III. (The devil is kindof in the details between a rebellion such as that which created the US, and that which was put down by the States, I guess). Thus, to that end, the 'defense against tyranny' argument does have merit, though not at the 2A level. Indeed, it was such a given that some States don't seem to have considered that there was even a need to put in a provision protecting personal firearms ownership. For example, Delaware's constitution was entirely silent on the matter until 1987 (Art 1 s 20). After all, who on Earth might restrict an individual's right to arms? And Delaware didn't muck about when the voters made their position clear with the text.

    Thus, 2A is a bit weird: It is being applied, post facto, to a situation which was never anticipated when it was written: The concept of it being a late 18th century provision applied as a result of the mid-19th century concept of the Federal constitution applying directly through the States to affect the individuals in an environment where the Commerce Clause interpretation of the early/mid 20th century allowed the Federal Government to basically legislate directly in what was previously a State matter. When the Bill of Rights was created, it was not so much a case of granting rights, but is a list of limitatons on what the Federal Government can do. Hence you have the difference of opinion in the interpretation. As a result, there is logic behind the majority's reasoning in Heller of the right to bear arms being a pre-existing right unconnected with militia service: The predecessor Constitutional provisions which had been the final word on the matter before incorporation such as the aforementioned Pennsylvania's Art1 S21 or Vermont's Chapter 1 article 15 certainly said so. But the dissent's reasoning also has some logic, that 2A was never intended to protect individual firearms ownership as far as the 2A goes.
    I seem to recall a case in the US around WW2 where several individuals were found to be in violation of the law for bringing a number of shotguns across state lines, and this act was not protected by the 2nd Amendment as the weapons weren't of military grade.

    You refer to the Miller case of 1934. There are a couple of problems with it, the first being that Mr Miller was dead, and he didn't have a lawyer arguing his case. The second, that such an argument might observe that shotguns were commonly issued to US troops in WW1. And the third, which is its own interesting one... If 2A only protects military grade weapons, a lot of folks will be very happy to get full-on assault rifles back in circulation. So, yes, the court refused to consider the case because there was no evidence that shotguns were militarily useful. (see point 1 nobody actually making the case). However, the court refused to consider the case so said nothing on the merits of what 2A was supposed to mean, which is why Heller is considered to be the first time in 200 years+ that the court had actually specifically addressed the meaning of 2A.


  • Registered Users Posts: 1,745 ✭✭✭Irish Praetorian


    The problem with the 2A historical argument is that there is something of a bit of overlap between the whole "rebelling against the government" thing and the whole "military protection thing". And, unfortunately, almost nobody really has it right.

    2A was not, contrary to a lot of opinion in the pro-gun side, put in as a sort of 'failsafe' against the government (though I would observe that folks with nothing more lethal than an AK-47 and a Kawasaki have been giving the US military quite a bit of trouble for the last two decades or so, so I'm sure a few million folks with rifles would be quite a problem for the US government), it was put in as a protection for the ability of local governments to basically create posses to put down uprisings and the like.

    I might be inclined to go along with all of this, although I'm not certain I would venture to categorize the various insurgencies the US (and friends) have been fighting over recent years as few guys with rifles and motorbikes. Surely such insurgency requires some level of infrastructure to support it - supply lines to secure munitions, popular support to secure new recruits and safe houses, potentially foreign support to obtain intelligence and protection. I mean if guerilla warfare was simply a case of a few disgruntled guys with a gun, surely Idaho would resemble early 2010s Somalia?
    A lot of folks forget this detail of US law, but when the 2A was created, the concept of "incorporation" had not yet been invented, and it would not be for some 100 years. This was a time that "The United States" was very definitely a "them", not an "it". It said so in law. Federal law quite literally only affected what the Feds did, and just because you had the right to free speech in the federal Constitution did not mean that it had any effect at all on what the State or City ordinances said. Instead, your "first amendment rights" were guaranteed by your State Constitution, whatever paragraph that happened to be. For example, the Pennsylvania Constitution (where Congress was before they invented Washington DC) protects the freedom of speech in Article 1 section 7. (The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever by made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.. The right to bear arms would be found in Art. 1 Sec 21 of the State Constitution. The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. . The idea of 2A applying to any individual against all takers only really came up after the Civil War with the incorporation doctrine. (And it was a known concern: If 2A, which was not limited to who 'the people' are like some southern states did, were to apply to all the States, then black men could be armed. This was observed in the Supreme Court at the time.). Note that to this date, some 44 States have a right to bear arms in their Constitutions, some of which are extremely explicit. So, in, say, Pennsylvania in 1840, you wouldn't be talking about your 2nd Amendment Right, you'd be talking about your Section 21 Right, which is just as strong.

    At the time that the Bill of Rights was being written, a couple of rather nasty rebellions had just been put down by the States. Two notable ones are the North Carolina Regulators of 1771 or so, and particularly relevant to the framing of the Bill of Rights, Shay's Rebellion in Massachusetts 1786-7. The States wanted to ensure that they were capable of calling up a militia to deal with rebellions. To that end, they wanted 2A to prohibit the Federal Government from banning State militias. Insofar as it goes, the "Collective interpretation" people have a point.

    Consider me sold so far, although I would shudder to imagine how far a gun control advocate would get if they made the case that the right to bear arms referred to a collective right of the people to be armed when such circumstances demand it. Now this seems to be indicative of the increased polarization that I observe between the two sides of the debate; gun control advocates increasingly seem to be turning to the view that the army/police/national guard represent 'the people armed' and that no other armament ought to be necessary, whilst the gun rights advocates seem to be increasingly expounding that view that the right of the individual to single-handled arm themselves for personal defence (et al.) is what is articulated. Now none of this is particularly at odds with anything that you say its just been my observation of recent developments, perhaps it has been yours also.
    However, what 2A was not intended to address, because nobody seemed to think it was needed for two reasons, was anything to do with individual firearms. Firstly, since it was basically a given that everybody had access to guns, and there was little thought given to the concept of not having them, and secondly, because the Federal Constitution had no particular authority over law enforcement within the States anyway. After all, the state militias which the States wanted to protect were quite simply bodies of men called to the colors, bringing along the weapons which they already owned for their various lawful purposes: Generally hunting, varminting, protection, and mass uprisings of the people against the government, such as that of King George III. (The devil is kindof in the details between a rebellion such as that which created the US, and that which was put down by the States, I guess). Thus, to that end, the 'defense against tyranny' argument does have merit, though not at the 2A level. Indeed, it was such a given that some States don't seem to have considered that there was even a need to put in a provision protecting personal firearms ownership. For example, Delaware's constitution was entirely silent on the matter until 1987 (Art 1 s 20). After all, who on Earth might restrict an individual's right to arms? And Delaware didn't muck about when the voters made their position clear with the text.

    Thus, 2A is a bit weird: It is being applied, post facto, to a situation which was never anticipated when it was written: The concept of it being a late 18th century provision applied as a result of the mid-19th century concept of the Federal constitution applying directly through the States to affect the individuals in an environment where the Commerce Clause interpretation of the early/mid 20th century allowed the Federal Government to basically legislate directly in what was previously a State matter. When the Bill of Rights was created, it was not so much a case of granting rights, but is a list of limitatons on what the Federal Government can do. Hence you have the difference of opinion in the interpretation. As a result, there is logic behind the majority's reasoning in Heller of the right to bear arms being a pre-existing right unconnected with militia service: The predecessor Constitutional provisions which had been the final word on the matter before incorporation such as the aforementioned Pennsylvania's Art1 S21 or Vermont's Chapter 1 article 15 certainly said so. But the dissent's reasoning also has some logic, that 2A was never intended to protect individual firearms ownership as far as the 2A goes.

    I appreciate the overview of the jungle of legalese surrounding the 2A from its original inception as a limitation on Federal power to the modern interpretation as a guarantee of individual rights. I'm sometimes surprised at the (in my view) outmoded loyalty that many institutions in the US seem to obtain, from things likes like state borders or even the existence of states themselves, to things like the electoral college or senate, when a society/country starting from scratch might look to such institutions as an example what not to do. Now granted this may sound the like of casual anti-US snobbery that pervades much of Europe, and to be frank I suspect in part it is, but I find it inexplicable that a society should be unable to reach a reasonably settled consensus on such a significant issue and I would submit the inability to reach a consensus is what is causing such lingering polarization and bitterness in politics. Now its not the only issue like this, abortion and (to a far lesser degree) migration seem to be other contenders, but I suppose this issue might be unique due to its position within the Constitution.
    You refer to the Miller case of 1934. There are a couple of problems with it, the first being that Mr Miller was dead, and he didn't have a lawyer arguing his case. The second, that such an argument might observe that shotguns were commonly issued to US troops in WW1. And the third, which is its own interesting one... If 2A only protects military grade weapons, a lot of folks will be very happy to get full-on assault rifles back in circulation. So, yes, the court refused to consider the case because there was no evidence that shotguns were militarily useful. (see point 1 nobody actually making the case). However, the court refused to consider the case so said nothing on the merits of what 2A was supposed to mean, which is why Heller is considered to be the first time in 200 years+ that the court had actually specifically addressed the meaning of 2A.

    Yes it always struck me as a curious oddity that shotguns would not be considered of military grade value, given the amount of protest and anger that had emanated from Germany during the latter parts of the First World War regarding their use. Now perhaps this is strictly a product of the distinction in firearms; the Germans were complaining about a 5 shot pump action trench gun, whilst the Miller case pertained to a simple double barrel design. In either case it does bring us back to the Heller decision which seems to have place the business of any major adjustment in US gun policy back to legislation and constitutional reform rather than the courts. This, to be frank, leaves me with mixed feelings, given the fairly outdated nature of so many US institutions and the inherent difficulty in reforming those structures. I suspect this is at least part of the impetus behind the support for a new Constitutional Convention, which seems like the only way forward at this point - though I doubt it would end up as a simple victory for either side.


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