Where Have You Been?

I can’t vouch for Jon Turley’s liberal street creds, having no actual familiarity with the cat, but I’m a little apprehensive when he implies that we progressives seemed to have forgotten, or intentionally ignored the Second Amendment and the right it guarantees for people to keep and bear arms.

Whether I’m the one out of the loop and have simply not been in on the whole liberal forget/intentionally ignore fest or not is hardly the point.  What does seem to be the point, at least for Turley, is that he’s apparently just discovered the second amendment and oh, it says we get to keep guns.  Maybe the NRA was right.

Glad you found a copy of the Constitution, now can you please keep up from now on?

I’ve never forgotten the existence of the second amendment, nor the right it professes to guarantee.  Yet, I guess I still haven’t found gun control Jesus, or more appropriately, Moses, played by Charlton Heston.

As I’ve said countless times before, I’m not completely against people owning guns as a rule, though I don’t believe  said ownership is necessarily guaranteed by the Second Amendment, and the lack of clarity in the language of the amendment gives cause for prudence in its execution.

The common argument, the one you will hear most people parrot, is that the second amendment specifies ownership as being necessary for maintaining a “well regulated militia”.  In other words, taken a certain way, the constitutional protection for weapon ownership is intended for militia use.  Ownerships of arms is not also protected for the purposes of self defense, or hunting.

But the other part, and this is the one that really bothers me is that the exact word used is “arms”.  There is no stipulation here, and could therefore grant a broad latitude of leeway in what weapons, or, conversely, be interpreted in a particularly narrow fashion.

One could, by the language of the constitution itself, justifiably argue that allowing everyone to own a pocket knife is adequate to meet the rights protected by the constitution, and therefore banning of any and all other weapons is perfectly fine.  On the other side of the coin, however, taking the broad view would mean that the government has no ability to ban any weapon whatsoever.

In other words, you could not technically prevent any person from own assault rifles, machine guns, rocket launchers, pipe bombs, real bombs, nuclear bombs, or any other tool specifically designed to kill living organisms.

One thing is certain, the second amendment is not as particularly clear as anyone would like to think, and therefore requires judicial contemplation in practice, and changes little.  It makes no sense for someone who is determined clinically to be a danger to self and others to be able to purchase a gun as easily as someone who isn’t, nor, should someone who has in the past been convicted of violent crimes be able to buy a gun as they already have proven that there is a significant risk factor to them owning one.

And just as we should be mindful of who is able to get a gun, we should be mindful of what weapons are legal for sale.  I’m sure a very small number of people think it is okay for someone to drive around with a pipe bomb in the trunk of their car, but what about fully automatic assault rifles?  Where do we draw the line?

It’s not, as Turley seems to think, a matter of waking up one morning and finding out, oh wow, owning a gun is a civil right protected by the Constitution.  It’s a matter of taking the time to interpret the Amendment, and executing it in such a way that is safe and conducive to an orderly society.

8 Responses to “Where Have You Been?”

  1. Kevin Hayden says:

    I have no quarrel with nor objection to the Second Amendment. I just don’t believe it creates a wall of separation between gun ownership and some degrees of regulation that enhance public safety. Keeping guns out of the hands of violent felons or raving schizophrenics, for example, is common sense.

  2. matttbastard says:

    JFTR, Jonathan Turley’s GWU Law facultyprofile (includes publications and bios).

    (Knowledge is power, Kyle.)

    (full disclosure: Turley is on the bastard.logic blogroll.)

  3. mick says:

    The 2nd Amendment should have been repealed when the decision was made after WW I to maintain a standing army. That’s clearly what it refers to (local militias are what comprised the Revolutionary Army, along with individual recruits) and it’s outdated. It serves no rational purpose any longer and hasn’t for almost 100 years.

  4. Laura says:

    G. Gordon Liddy jokes that since he’s a convicted felon, he can’t own a gun, but MRS. Liddy owns a lot of guns. I’m not sure the convicted felon law is too effective in this case. hmmm.

  5. That would definitely be a loophole.

  6. 1. Felons not only can’t own guns, but they also can’t possess them. So G. Gordon Liddy’s joke is just that- a joke.
    2. The idea that the term “militia” refers to an actual organized paramilitary of citizens ready to defend the country against attack is deeply flawed. I would direct you to the dissent in Silveira v. Lockyer for a more detailed explanation. The long and short of it is that “militia” really means every able bodied citizen.
    3. The 2nd Amendment should be interpreted in a similar vein as the Bill of Rights, which was a carrot stick given to soothe the concerns of the anti-Federalists like Jefferson, Paine, and Mason. Specifically, the anti-Federalists insisted on a Bill of Rights to ensure that the federal government did not become too powerful and an abuser of individual citizens. The idea that the 2nd Amendment is meant to secure the country against foreign invasion or rebels is completely inconsistent with the rest of the Bill of Rights, where the anti-Federalists’ concerns about the federal government were answered. So the Bill of Rights is best viewed more as a set of additional restrictions on the federal government than as a grant of rights to citizens- the anti-Federalists would probably say that those rights cannot be granted since they are essentially “self-evident.”
    4. If you interpret the 2nd Amendment’s intent as being an additional limitation on the federal government’s abuse of power, then the term “militia” cannot refer to an army of citizen soldiers ready to defend against foreign invasion or rebellion. Instead, it makes more sense to view the term as referring to a vigilant populace prepared to resist federal abuse of power. Indeed, while the militia did compose the early Revolutionary Army, we should remember that the initial enemy was not a foreign invader, but the government itself (it was not until nearly a year into the war that the rebels began to think of independence). In this sense, it’s also worth noting that the 2nd Amendment could be read to justify the right of an individual to own and use weapons to defend himself against an unjust act of government.
    5. Many will claim that the American political process has developed enough to prevent against an abuse of power so extreme that armed revolt could ever be necessary. Indeed, as bad as Bush has been, I don’t know of any rational person who thinks anything more than impeachment and, maybe, a war crimes trial is a good idea. However, if the last 100 years have taught us anything, it should be that authoritarian/totalitarian regimes can arise under the right circumstances in just about any type of nation. The 2nd Amendment acts as an important deterrent against this- even if an armed revolt would fail, it would at the very least make the costs of seizing absolute power exceedingly high.
    6. The 2nd Amendment probably should not be read as conferring an absolute right to own any type of weapon, and therefore some reasonable regulations can exist. A couple of reasons why there are limits to the 2nd Amendment: A. SCOTUS doctrine would probably be correct in applying a strict scrutiny standard to any federal arms regulations; however, I can’t imagine that a ban on private ownership of nuclear weapons would fail to be “narrowly tailored to meet a compelling government interest”. Indeed, laws against legally insane people or convicted felons owning firearms could probably also be justified under strict scrutiny, as could most (though not all) machine gun laws and regulations. B. The term “arms” obviously had a slightly different meaning in 1789 than it has now. A legitimate (but in my opinion ultimately flawed) argument could be made that the term “arms” should be restricted to firearms, swords, and daggers. C. A reasonable argument can be made that the 2nd Amendment is not incorporated into the 14th Amendment, meaning that individual states are entitled to regulate weaponry as they see fit. D. If the 2nd Amendment is still problematic to you, then the Constitution gives you a solution – make a new Amendment; but please, don’t try to amend the Constitution through the back door by using strained interpretations.

    Sorry for the long post- it’s just an area I have a lot of background in, even though I’ve never owned a gun.
    7.

  7. matttbastard says:

    Good discussion @ Obsidian Wings (featuring real live lawyers and law professors!) on Turley’s “uncharacteristically weak” (as per publius) argument re: whether the 2nd amendment refers to an individual or collective right to bear arms (with Turley now coming to the conclusion that the former is correct, despite ‘liberal’ interpretation to the contrary). I think you’ve misread Turley’s intentions in writing this op-ed (even if, as publius notes, it isn’t one of his strongest pieces) when you reduce his argument to “a matter of waking up one morning and finding out, oh wow, owning a gun is a civil right protected by the Constitution.” Again, the argument hinges on individual vs. collective rights.

    Incidently, Turley briefly acknowledges to PE’s #6 in his op-ed (ie, “The 2nd Amendment probably should not be read as conferring an absolute right to own any type of weapon, and therefore some reasonable regulations can exist.”) So it’s not like JT is calling for carte blanche on gun control a la the NRA/firearms industry.

    Anyway, I encourage you to check out the thread, as it is filled with a number of (informed observers representing a wide variety of legal opinions (although you might want to brace yourself for an onslaught of legalese).

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