In Defense of the Freedom to Arms

[CrossfireRacerX]

Hi all. This is my first time posting, but I've been lurking for a long while. I felt the need to register to post my mind, however, on this one issue: the defense of the freedom to arms.

Now recently, I've read many pro-firearm advocates arguing against anti-gun legislation with the same old "it contradicts the constitution! It contradicts the second amendment!"

While I agree that gun-restricting legislation should be fought against, I find the above argument a futile one which ultimately shows the ignorance of the person asserting thus. I'd like to point you to the wording in the First Amendment of the Bill of Rights. "CONGRESS shall make no law respecting an establishment of religion"

I italicized what I perceive to be the most important word in that first amendment: Congress. CONGRESS can't pass laws regarding the establishment of religion, the meaning being there can never be a NATIONALLY established religion. If you read the Federalist Papers, it becomes clear that the founding fathers advocated a very weak national government with stronger state and local governments. In fact, there have been historical examples where STATES have had established churches (if I remember correctly, Connecticut and Maryland both had established churches, feel free to correct me).

In the same way, CONGRESS can not pass a law infringing on our right to keep and bear arms. The NATIONAL government can not pass these laws. The intention of the founding fathers was, again, that if states so chose to, they could pass laws preventing our arms-bearing right, and be fully justified in doing so by the Constitution.

Therefore, when someone points to California or Chicago and says "they're infringing on our 2nd amendment rights," that person is actually incorrect. These places might be wrong in passing these anti-gun laws (and indeed its a simple enough task to show why anti-gun legislation is such a bad idea), but they are not wrong because of the 2nd amendment.

And so, I'd like to open a discussion of more logical, and ultimately more productive, arguments against the gun-seizing leftist movement. In order to defend our gun rights, it is important to know the reasons why it is important for us to own these guns. The founding fathers had their reasons for preventing the national government from taking away our guns, which they laid out in the Bill of Rights (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 arguments can we put forward against those proposing localized gun-banning legislation? Self-defense? Sport? I have found it much more to be a much more logical and compelling argument to provide reasons such as these, with examples such as Switzerland and Kennesaw, GA.

In order for us to more adequately defend our freedom to arms, we should first all have a common understanding of why this freedom is important to us. Pointing to the Second Amendment is simply an inadequate and inaccurate argument, which ultimately proves nothing for our side. Those proposing the gun-restricting legislature obviously know about the 2nd Amendment, and obviously they have gotten laws passed preventing guns in certain areas (Chicago or California, for example).

With an overall stronger, more unified firearms-defensive front in mind, what arguments can you all come up with to defend our freedom to arms? I know there are a bunch of smart people on here, and I'd love to see what you all say.

Also, I'd like to hear any responses you might have to what I've said above with regards to the whole "Second Amendment!!!!" argument being erroneous.

I'm not trying to start a fight, nor am I trying to break any rules by posting this (If I am, then disregard this entire post). I'm just trying to establish a more unified defense against the gun-seizing legislators currently in office.

With all that said, have at it

 

[maestro pistolero]

The intention of the founding fathers was, again, that if states so chose to, they could pass laws preventing our arms-bearing right, and be fully justified in doing so by the Constitution.

No, it wasn't. It never occurred to them that the states would even think of such a thing. They were worried about a tyrannical central government.

Nothing in the bill of rights was ever intended to secure the right of governments. The B of R is meant to protect individual rights from the government. Any other reading would be to turn the original meaning on it's head.

CONGRESS can't pass laws regarding the establishment of religion . . . In the same way, CONGRESS can not pass a law infringing on our right to keep and bear arms.

It's no accident that the Second Amendment doesn't use the same language as the first. It says the right 'Shall not be infringed'. It doesn't make a distinction as to who might infringe as the first does. The drafters of the constitution were master wordsmiths who left nothing to chance. The exact word and phrases were debated ad nauseam.

That aside, after the civil war the 14th amendment intended to apply the entire bill of rights to bind the states, especially, and specifically the Second Amendment. For the first time, this issue is being clarified right now in the Supreme Court in the very high profile McDonald vs Chicago, the handgun ban case which will decide whether, and through which clause(s) of the 14th amendment the Second will be applied directly to bind the states from infringement of the right to keep and bear arms.

While you are lurking, read up on 14th amendment incorporation of the 2nd, McDonald vs Chicago, Heller vs DC, and the pieces of the puzzle should begin to fall in place for you. There appear to be a few gaps in your understanding of the modern day context of the second amendment.

And welcome.

 

[maestro pistolero]

I neglected to add, that I tend to agree that expounding upon the merits of the 2A is more effective than simply wielding it.

 

[CrossfireRacerX]

again, if you've read the Federalist Papers, the original intent of the founding fathers becomes PAINFULLY clear.

The Bill of Rights was a concession to the antifederalists. The Federalists argued throughout the publications AGAINST a Bill of Rights, because being the master wordsmiths that they were, they deemed it unnecessarily redundant, and even dangerous. It was thought that it could be dangerously expanded to include state-level government. Try reading Federals Papers number 84. Any powers not granted SPECIFICALLY to the national government were left to the states. The modern interpretation of the B of R, namely through the incorporation doctrine (which developed through the early 20th century interpretation of the 14th Amendment), does NOT extend the Second Amendment. See the Supreme Court's ruling in the case of District of Columbia v Heller:

"With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government"


Which puts us in the situation I had originally presented.

With that said, does anyone have any constructive arguments to further our case?

 

[noyes]

CrossfireRacerX

Are you an anti gun person ?
Do you believe in private gun ownership ?

 

[CrossfireRacerX]

I do believe in private gun ownership and I own a few myself. Not anti-gun.

I'm trying to help provide a better understanding of what our arguments SHOULD consist of. WHY is it important for us to own our guns? I personally use mine for sporting purposes, and I wouldn't hesitate to use them in a home-defense situation.

So when we're defending our gun liberties, what would you all say? I like to mention Switzerland and Kennesaw's gun laws and crime rates. I also like to point to how often concealed-carry permit holders commit any form of armed crime (almost zero), and explain just what goes in to obtaining such a permit.

Then there's countless examples of when CHL holders have stopped what could have been another killing spree like that of Virginia Tech or Fort Hood.

When defending our firearm liberties, it is important to be able to say WHY it is important to own firearms, why it is important to have the option to obtain a CHL.

I just want to know what you all here would argue

 

[Al Norris]

Welcome to the Firing Line, Crossfire.

The modern interpretation of the B of R, namely through the incorporation doctrine (which developed through the early 20th century interpretation of the 14th Amendment), does NOT extend the Second Amendment.

A couple of problems with the above, as I see it.

Modern incorporation doctrine, actually Selective Due Process (SDP) incorporation, is a judicial construct that was fabricated out of thin air. It has no real constitutional basis, as Scalia and some few other Justices will tell you. It was, and is, a remedy to do what the 14th commands, without overturning the cases that rely upon a partial reading of that amendment.

The 14th amendment was supposed to be the vehicle that held the privileges or immunities (a term of art, meaning the rights of free men in a free society) of U.S. Citizenship over the power of the States to nullify these rights.

This changed the very nature of federalism. However, a group of conservatives on the Supreme Court, read that phrase out of the constitution in their opinion on the Slaughter-House Cases, because they couldn't reconcile the older federalism with the new (true conservatism, BTW).

The Court was wrong then, and no legal scholar of any real repute disputes these facts. McDonald, may or may not change this particular aspect of law. Regardless, McDonald will incorporate the second amendment, as against the States and Local authority. Everyone pretty much agrees with this view. The opposition merely wants to retain as much power as possible, after the fact (damage control).

So your opening post, while essentially correct, is operating in the vacuum of time. Hence it is incorrect in that respect.

I would also bring to your attention a relevant portion of Presser v. Illinois, namely that the Court went as far as saying that the State could not bar firearms from the people, as it would deprive the Central Government of its constitutional source of a ready militia.

Knowing what the founders thought is one thing in this entire debate. Knowing what the 14th amendment was supposed to achieve is another. While intertwined in some respects, one (the 14th) overshadows the other (the original 2A).

That's basic statutory and constitutional construction, all else being equal (which it seldom is, in politics).

Finally, I would argue that civil rights (and RKBA is a civil right) are for all people. All civil rights. I don't pick and choose.

 

[maestro pistolero]

and I wouldn't hesitate to use them in a home-defense situation.

Why would you qualify such a statement with "home defense"? Would you not protect innocent life away from your home?

So you are aware of selective incorporation. One could point out the fact that the 14th amendment was intended, in great part to prevent the deprivation of 2nd amendment rights that states were denying to the newly freedmen, and that deprivation result in unthinkable atrocities being committed against them.

The selective incorporation doctrine was embarked upon as a work-around for the abrogation of the 14th amendment that began with the Slaughterhouse cases. The McDonald vs Chicago case is a rare opportunity to undo the damage. The court is widely expected to apply the 2nd to the states via the 14th, the only question on any side of the issue seems to be whether it is applied through the due process clause, the privileges or immunities clause, or both. Also, because of this gutting of the 14th, there are actually states in which one is not entitled to a grand jury, and other rights may be unprotected as well. These rights could also be restored via a 'P or I' route to incorporation.

My point in stating that, is that references to the Federalist Papers with regard to the applicability of the 2nd to the states, and, indeed, to Heller vs DC (which specifically did not take up the question of incorporation) are likely to be short-lived in their usefulness for arguing against the existence of 2A protection from state infringement. This matter comes up for oral arguments next month.

Lastly, why are you interested in what those of us on this forum would argue? Are you intending to form an argument against a certain anti 2A target? You are a new member here, and it seems an interesting way to put the question on a 2A forum. I'm a little suspicious that your motivation may differ from most of us here. If I am wrong, I'll beg your forgiveness, but something isn't yet passing a smell test here.

While this post may have been less than responsive to your specific question, I hope it has broadened your understanding of the the 2nd as it may apply to the states a early as June this year.

 

[CrossfireRacerX]

Why would you qualify such a statement with "home defense"? Would you not protect innocent life away from your home?

I'm not implying that at all. As of yet, tho, I don't own a handgun (a situation soon to be remedied), and I don't feel like carrying my Marlin .30-30, Winchester Model 12, or Ruger 10/22 around with me. I do carry a knife on me for general use, and I would use it in a defensive situation away from home (God forbid one arise).

So you are aware if the selective incorporation. One could point out the fact that the 14th amendment was intended, in great part to prevent the deprivation of 2nd amendment rights that states were denying to the newly freedmen, and that deprivation result in unthinkable atrocities being committed against them.

If I'm not mistaken, the 14th Amendment was intended to extend citizenship over ex-slaves, was it not? The doctrine of incorporation was basically a loophole in the wording taken to an extreme during the 20th Century, decades after the 14th Amendment was created. It was applied to situations worlds away from its original intention.

My point in stating that, is that references to the Federalist Papers with regard to the applicability of the 2nd to the states, and, indeed, to Heller vs DC (which specifically did not take up the question of incorporation) are likely to be short-lived in their usefulness for arguing against the existence of 2A protection from state infringement.

It was in fact discussed in a footnote to the Heller vs DC case as I noted above. Whether the 2nd Amendment will be free of the incorporation doctrine much longer is another question entirely. But for now, it is free of it. (on a side note, I personally disagree with the incorporation thesis as a distortion and liberal exploitation of semantics)

Lastly, why are you interested in what those of us on this forum would argue? Are you intending to form an argument against a certain anti 2A target?

I'm interested simply because I'm curious as to what people on here would argue. I know there are many people much smarter than I am out there, and I'd love to hear their opinions on the topic. I personally think a strong united front with compelling arguments wins over more hearts than a divided one with weak arguments. I'm sorry if the way I proposed this discussion seemed fishy, I can understand that. I knew some flags would be raised by posting this, but my curiosity got the better of me I'm pretty sure we're on the same side but this is my point exactly. We need to figure out how we should argue our position, if we can't even agree amongst ourselves, how can we be taken seriously when the time comes to make our point to the legislators (or the voters who put them there)

Modern incorporation doctrine, actually Selective Due Process (SDP) incorporation, is a judicial construct that was fabricated out of thin air. It has no real constitutional basis, as Scalia and some few other Justices will tell you.

And I would agree with them. I am a firm believer in what the founding fathers created, not what a supreme court decided to construct through word-games.

So your opening post, while essentially correct, is operating in the vacuum of time. Hence it is incorrect in that respect.

And yet we all operate in the vacuum of time. You, me, our entire system of government. The status quo might change tomorrow in a way unpredictable, but as of now, what I said was correct.

I would also bring to your attention a relevant portion of Presser v. Illinois, namely that the Court went as far as saying that the State could not bar firearms from the people, as it would deprive the Central Government of its constitutional source of a ready militia.

It's highly unlikely that all forms of firearms will be banned from us. Just HIGHLY restricted. Take California, Chicago, or NYC as prime examples.

Knowing what the founders thought is one thing in this entire debate. Knowing what the 14th amendment was supposed to achieve is another. While intertwined in some respects, one (the 14th) overshadows the other (the original 2A).

It only overshadows it vaguely through the incorporation doctrine, which I would also argue as an illegitimate exploitation of the 14th Amendment.

Finally, I would argue that civil rights (and RKBA is a civil right) are for all people. All civil rights. I don't pick and choose.

Nor do I, but these "rights" were only intended to apply at the National level, not the state level. And as of this posting, the Second Amendment still only applies at the National level, and yet extends over all citizens. The National government, as of now, can not impede upon our right to bear arms.

 

[Frank Ettin]

...I personally disagree with the incorporation thesis as a distortion and liberal exploitation of semantics...

That's fine and dandy, but incorporation is a settled and established legal doctrine. It's not going to be going away any time soon.

And the question of application of the 2nd Amendment to the State through the incorporation doctrine is about to resolved in McDonald. Since the time for filing amicus briefs has passed, I guess you won't be able to file one in support of the City of Chicago, so SCOTUS will not have the benefit of your perspective to help them decide the case.

My point is that the legal machinery is operating. The 2nd Amendment has been confirmed to describe an individual right. The next question is incorporation, and that's currently in the works.

It could be interesting to consider desireable social policy independent of the legal framework. But that's a different discussion from the one started.

....I am a firm believer in what the founding fathers created, not what a supreme court decided to construct through word-games....

Nonetheless, the opinion of the Court will trump yours. The opinion of a court on a matter of law, including the Constitution, affects the lives and property of real people in the real world. Yours (and ours) does not.

In any case, the Constitution says, in Article III,

"Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...."

 

[CrossfireRacerX]

I'm not quite sure why everybody feels the need to attack what I've said, even though nothing I said was wrong in any way right now. While the incorporation of the 2nd Amendment will likely be ruled on soon, the same logic applies both before and after the ruling.

And you say that incorporation is established. Yes it is. That doesn't mean it's here to stay. Slavery was established. Standard Oil was established. They both existed for a long time as legally accepted entities, and yet the future changed that completely. What's to say the same can't be said for the incorporation thesis? There are already justices who seriously question it's validity.

In the end, everything everyone has posted so far has pretty much been useless so far to the topic at hand as originally laid out in the first post. Yes in the future you might be able technically to argue that "oh look 2nd Amendment lah dee dah can't contradict the constitution," but that won't change how average joe who has no current opinion on the subject views it when it's time to vote. In no way is it a persuasive argument for gun rights. The simple matter of fact is that the constitution gets violated by laws all the time, which end up being upheld by a supreme court with a certain agenda. Is it right? no. But it's the system we live in, and I can accept it. What we as citizens can do is vote the right people in to office that we think will uphold the Constitution to the best of their abilities, and convince others to do the same.

 

[maestro pistolero]

I'm not quite sure why everybody feels the need to attack what I've said, even though nothing I said was wrong in any way right now.

Oh, relax. No one's attacking what you said. We're having a discussion here. A very respectful one, I might add. nevertheless, you invited scrutiny, did you not?

With all that said, have at it

You made some statements that either ignored or omitted the most significant, relevant developments that are in major court cases right now, so it begged clarification.

Let me try to answer as best as I can:

To many here, the arguments are self evident. I personally believe there can be no more fundamental a right than the right to the means of preserving one's own life and the life of other innocents from harm or death, whether by a criminal or tyrannical threat, wild animal, or what have you. Without one's life, all other rights become meaningless and void. It is a matter of human dignity.

In a truly free society where we are self-governed, the right to arms is emblematic of our liberty, real evidence that we are our own masters, and that within the limits of of human decency, in fact our very humanity dictates we may armed at will.

The right to keep and bear arms is at it's core a hopeful notion that acknowledges that the overriding goodness in the vast majority of us is a worthy place of trust, and that by arming that majority, we disempower the very small minority of those would would do harm for personal gain.

If you want more arguments for second amendment rights, check out the work of criminologist Gary Kleck, and author John Lott. Also read the briefs of (Heller attorney) Alan Gura. . . all of them. I am sure others will come along with other recommendations.

 

[BlueTrain]

Whatever the arguments are you care to present, I think that references to Switzerland are irrelevant, because, although they have a working militia system, it is entirely unlike anything we have ever had and for that matter, not particularly popular in Switzerland. Likewise, references to the Federalist Papers may be entirely relevant, they were privately written, not the results of deliberation of legislative bodies and represent only one side of the argument at the time.

Now you may continue your debate.

 

[CrossfireRacerX]

Maestro Pistolero, those are the constructive types of arguments I was looking for.

BlueTrain, the Federalist Papers were written as an attempt to explain the Constitution's meaning, by the authors of the Constitution itself. They are often cited in cases ruling on the interpretation of the Constitution. Yes they were only written by one side, the Federalists, but they were the side that won the argument. We're living under a government constructed by Federalists, not anti-federalists. The country would be vastly different were it the other way around.

And I actually find Switzerland a prime example, not because of the militia being popular or not, but because they have almost 100% gun ownership per household, and their violent crime rate is slim to none. The same could be said for Kennesaw, Georgia, where the crime rate plummeted 89 when a law was passed requiring firearm ownership. While you can't say that all of these low crime rates can be attributed to private gun ownership, but you'd be hard pressed to really say that it didn't play a major role.

 

[Frank Ettin]

....you say that incorporation is established. Yes it is. That doesn't mean it's here to stay. Slavery was established. Standard Oil was established. They both existed for a long time as legally accepted entities...

There is a difference between entities and institutions, on one hand, and a doctrine of jurisprudence on the other. Unwinding incorporation would mean setting aside 100 years of legal precedent under which most of the Bill or Rights has been applied to the States. That would certainly be a monumental undertaking. What evidence can you supply that that it might happen?

...There are already justices who seriously question it's [incorporation's] validity...

Who? Provide evidence please.

 

[CrossfireRacerX]

Both the abolition of slavery and the civil rights act overturned decades of standing jurisprudence. Both were monumental overhauls of the system, and yet both happened. It shows that it can (and has) been done.

Both Justices Clarence Thomas and Antonin Scalia have repeatedly voiced their dissent from the incorporation doctrine. Justice Thomas has even said that cases ruled on using the incorporation doctrine were "judicial usurpations of the policy-making and constitutional amendment process"

 

[Frank Ettin]

...Both Justices Clarence Thomas and Antonin Scalia have repeatedly voiced their dissent from the incorporation doctrine. Justice Thomas has even said that cases ruled on using the incorporation doctrine were "judicial usurpations of the policy-making and constitutional amendment process"...

Cite the cases please.

 

[BlueTrain]

To Crossfire, I realize the Federalist Papers were written by those who prevailed. History is written by the winners, I guess. However, your objections to my comments about Switzerland don't hold up. There actually is crime in Switzerland, believe it or not, though the incarceration rate is tiny compared to the United States. I suspect that among other things, more things are illegal here!

There is even murder in Switzerland, though "army ordnance" in the home is usually not involved, though they are used for a lot of suicides, according to one source. Supposedly most of crime involving guns are with illegally held weapons and half of most crimes are committed by non-citizens, although the majority of non-citizens in Switzerland are young males.

Moreover, it seems that current Swiss gun laws are more strict than they typically are here and control of "army ordnance" kept at home is done with great care. Ammunition is no longer kept at home. And by the way, the per capita ownership of private firearms in Switzerland is half what it is in this country.

The problem both with speaking about the militia system in Switzerland today and the militia system in the United States in the 1790s is that they were not and are not voluntary arrangements. In Switzerland it amounts to conscription and in the United States of the 1790s, it was an expected civic duty, like paying taxes. I wonder how well the old system actually worked in the United States and how those who actually embodied the militia thought of it. You do hear a lot of comments here about the old militia system but I've never read much about any of the nitty gritty details of the workings, other than what you were supposed to bring to the muster. And by the way, there are still musters of the reserves and that is exactly what they are called.

 

[KLRANGL]

Well, the way I read it, Virginia law says all military aged residents of Virginia are part of its militia
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+44-1

The militia of the Commonwealth of Virginia shall consist of all able-bodied citizens... who are at least sixteen years of age and... not more than fifty-five years of age... divided into four classes, the National Guard... the Virginia State Defense Force, the naval militia, and the unorganized militia.

As a side note, I have never seen the logic that private firearm possession reduces crime rates as there are many more factors that have a more important role on crime rates.

 

[CrossfireRacerX]

in 2006, Switzerland recorded a mere 34 killings or attempted killings using firearms. There were 64 with bladed weapons and 16 were unarmed.

There were only 86 cases in ALL OF SWITZERLAND where a firearm was used in a case of assault resulting in bodily harm.

Switzerland has a population of 7.6 million.

To compare, the District of Columbia has a population of roughly 600,000 and records about 190 killings using firearms per year. Is it a coincidence that they also have some of the strictest gun laws (if not the strictest) in our country?

I believe the statistic you were looking at which placed Switzerland lower than the United States in terms of per capita gun ownership failed to take into account rifles issued by the military. WITHOUT those, Switzerland ranked as the 3rd highest per capita country in the world. Furthermore, these were just estimates. The real number of guns per capita, especially if you include military rifles, is widely accepted to be very high. The absolute low end of the spectrum of guesses came from those promoting stricter gun laws, at 1.2 million. Without military rifles. The high end of the spectrum was 12 million. A large gap, with lots of room for error in the estimation. Again, this is before military rifles are added in to the equation, easily boosting the number by ~3.8 million (roughly the male population of Switzerland of age to have been given his service rifle).

Don't misunderstand me, I'm by far not saying that the low murder rates are solely due to the high gun ownership rate, BUT with places like Switzerland, Israel, and Kennesaw, as well as many others, it's hard to argue that gun ownership plays an insignificant role in those comparisons.