No discussion of Dick Metcalf's article on gun regulations?

[NWPilgrim]

I searched and did not see anything posted yet.

From the Dec 2013 Backstop column of Guns&Ammo mag (linked to in this commentary on TruthAboutGuns:
http://www.thetruthaboutguns.com/2013/11/robert-farago/guns-ammo-supports-gun-control/

Biggest fallacy Metcalf adopts ad his own is that passive law abiding actions such as owning a gun or carrying a gun us equivalent to harmful actions such as yelling fire! In a theatre.

Dick, NO we should not regulate passive activity of individual rights whether it be using a gun or typewriter or owning them. Agreeing with "common sense training requirements" again says you agree individual rights should be obstructed by the govt when the person has done nothing to harm anyone.

There are already laws regulating actions that harm others regardless of weapon used.

 

[Paul B.]

I read somewhere that laws are couched in language from an earlir period in time with meanings different from what normal people think they mean today. One is the term "well regulated" from the Second Amendment. IIRC, well regulated as used in the language of the 1770's meant WELL TRAINED and not regulated as the word is used in today's manner as Mr. Metcalf seems to think.
Come to think of it, the "militia" as it stands today literally as no training and I'm not talking about the National Guard.
Paul B.

 

[NWPilgrim]

The structure of the wording with commas separate the inalienable right to keep and bear arms individually from the specific example of using them in a functional militia.

If gun owners are so ignorant of such a basic right to be armed in defense of self and country then no wonder antis make hay appeals to regulation. Gun regulation is like pre-crime. You haven't done anything to harm another person yet you can be thrown in prison for carrying concealed, lose your supposed inalienable right to own guns forever. Or for owning a gun with a short barrel or suppressor. Even though millions of gun owners posses and carry firearms without malicious incident ever year, somehow the few who commit crimes justify infringing all our inalienable right.

Possession or carrying of a gun is the same as possessing or carrying a typewriter or computer or megaphone in terms of rights. It us not the possession that should be restricted but the actual harm to others v

 

[Tom Servo]

Metcalf can be divisive, but then again are most gun writers at some point.

That said, a few of his statements are correct, but a few of his examples and conclusions are suspect. He asserts that "all constitutional rights are regulated," and that's not wrong. We'll never see a completely unregulated 2nd Amendment, nor would it be a good idea.

That said, he asks when regulation becomes infringement, and that's a good question. Tell me a person with a proven history of violent mental instability shouldn't have access to guns, and I'll agree. Nor do people have a right to use arms in a way that endangers others.

But where do we draw the line? And what did the Founders mean by "regulated?"

In the their day, ownership and maintenance of militia-worthy firearms was required. Rosters (read: registration) were kept, and musters were held in public so officials could inspect and take inventory. If the public need was deemed great enough, civilian firearms could be "impressed" into government service on a temporary basis.

So, "well regulated" meant many things. Metcalf could have made an interesting article had he discussed those ideas. Instead, we were given inapt analogies to automobile ownership.

I was disappointed to see him weasel out with "but that's just me..."

 

[Aguila Blanca]

Dick Metcalf should stick to writing about things regarding which he has a clue.

That said, a few of his statements are correct, but a few of his examples and conclusions are suspect. He asserts that "all constitutional rights are regulated," and that's not wrong. We'll never see a completely unregulated 2nd Amendment, nor would it be a good idea.

Frank Ettin has said much the same thing, but the fact that the Second Amendment may have been regulated in the past does not mean that it was intended to be so. I continue to maintain that it was, in fact, NOT intended to be so. The language of the 2A itself makes that clear.

That said, he asks when regulation becomes infringement, and that's a good question. Tell me a person with a proven history of violent mental instability shouldn't have access to guns, and I'll agree. Nor do people have a right to use arms in a way that endangers others.

Whether or not it's a good idea to allow known nut cases to have guns doesn't in any way address the question of when does regulation become infringement. The simple answer is: immediately. By definition, regulation IS infringement. What you are really asking is: When does "reasonable" (a word that does not appear in the 2A) regulation become unacceptable infringement? And what does endangering others have to do with the RKBA? The 2A is a right to "keep" and to "bear" arms. It is not a right to use arms to abuse other people, and it was never intended to be.

But where do we draw the line? And what did the Founders mean by "regulated?"

They meant "trained and practiced, and [more or less] uniformly equipped." That had been well-established long before Heller and McDonald restated the obvious.

 

[Tom Servo]

They meant "trained and practiced, and [more or less] uniformly equipped." That had been well-established long before Heller and McDonald restated the obvious

While that's true, it may not be the whole truth. See my examples about musters and impressment. Regulation can also refer to rules or directives from authorities.

How closely are the militia and individual clauses related? Heller tells us that both have relevance, but one does not invalidate the other. While many civilians kept guns for militia service, their right to also keep weapons for self-protection was protected.

By definition, regulation IS infringement.

Not always. Infringement is a breaking or abrogating of something. Regulation is applying some degree of control over it. Sometimes, those are the same thing. Sometimes not.

 

[NWPilgrim]

Tom, I think you would have written a 100 times better article than Metcalf on this topic. He did a hatchet job and will likely reap his just desserts. He claims to be a constitutional scholar but obviously has no better understanding of it than our other scholar in the White House.

I think regulation is clearly acceptable when it comes to improper action that harms others. Their right to life and liberty is not less than ours. But, regulation of a right is very suspect when it restricts passive states if being such as "owning", and simple "bearing." Waving a gun around in public becomes reckless endangerment, whereas carry a handgun in a holster should not be regulated.

Possession should have wide latitude and the focus of regulation should be on BEHAVIOR that poses an actual danger to others.

 

[Tom Servo]

He claims to be a constitutional scholar but obviously has no better understanding of it than our other scholar in the White House.

He doesn't seem to understand the difference between regulation and infringement, or the distinction between the prefatory ("milita") and operative ("the people") clauses of the 2nd Amendment.

The militia in the prefatory clause can be regulated, which is to say disciplined and consistently equipped. However, the individual right protected by the operative clause is not subject to regulation. It is simply not to be infringed.

Since the 16-hour Illinois training requirement Metcalf praises affects the rights of individuals (as protected in the operative clause), it is not regulation. It is infringement. Regulations make things orderly, infringements disrupt and break things.

So, the talking heads are inaccurate when they pontificate about "reasonable regulations" on privately-owned firearms.

 

[JimDandy]

Frank Ettin has said much the same thing, but the fact that the Second Amendment may have been regulated in the past does not mean that it was intended to be so. I continue to maintain that it was, in fact, NOT intended to be so. The language of the 2A itself makes that clear.

While you may have a case that were we to acquire Bill and Ted's phone booth, and go back to Philadelphia in the mid 1770's to lay out the facts of the case and ask them, the Founders may not have been in favor of the NFA, GCA, and FOPA, it's even more unlikely to believe they would agree that any sort of law that touches on firearms would be infringement. One need only look to Boston in 1786 for that.

 

[Aguila Blanca]

How closely are the militia and individual clauses related? Heller tells us that both have relevance, but one does not invalidate the other.

I disagree ... not with the statement that both have relevance but that one does not invalidate the other, but that Heller said this. In fact, Heller pretty much tossed the entire militia link out the window.

Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.Pp. 2–53.

...

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. (p. 3)

...

Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose. (p. 5)

...

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. (p. 7)

...

We turn to the phrases “keep arms” and “bear arms.”Johnson defined “keep” as, most relevantly, “[t]o retain;not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. (p. 8-9)

...

At the time of the founding, as now, to “bear” meant to“carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is,as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. (pp. 10-11)

That's just from the first few pages. The overall decision runs 157 pages -- there's a lot more in there that pretty effectively severs the 2A from any relationship to service in a (or "the") militia.

 

[Al Norris]

Considering what I've been reading on this particular subject, I'm now wondering if Guns&Ammo/Dick Metcalf will be getting the Recoil/Jerry Tsai treatment (AKA Jim Zumbo)?

 

[NWPilgrim]

I don't understand gun owners who buy into treating guns different than other property concerning individual rights. There is no clamor to restrict muscle cars, or cars in general, or stupid Prius drivers even though vehicles are involved in far more death and injury than guns.

Why do gun owners accept that it is OK to treat guns as inherently dangerous to the public and require restrictions regardless of use or even non-use?

 

[carguychris]

There is no clamor to restrict muscle cars, or cars in general, or stupid Prius drivers even though vehicles are involved in far more death and injury than guns.

New-production passenger cars and light trucks are subject to all sorts of federal safety, emissions, and fuel economy standards. Most of these regulations are the direct result of just such a clamor, in the mid 1960s through the early 1980s. Prior to this time, few automotive design standards even existed, except for a few things like headlights and taillights.

Ever wonder why there were almost no newly-designed convertibles offered on the US market from about 1970 to the early 1980s, excluding minimally updated carry-overs from the 1960s, such as the MGB? The reason is that, in the late 1960s, the Feds were working on a safety standard that would have required stringent rollover testing by the mid 1970s, and the carmakers didn't want to pour R&D money into a product that would immediately become illegal to sell. (The new standards were later deemed unreasonable and scrapped after the OPEC fuel crises, but the carmakers' product cycles took a few years to catch up.)

BAD analogy.

 

[Tom Servo]

I'm now wondering if Guns&Ammo/Dick Metcalf will be getting the Recoil/Jerry Tsai treatment (AKA Jim Zumbo)?

That's the thing. The internet never forgets anymore.

Frankly, I remember reading really loopy stuff Jordan and Cooper wrote back in the day. Heck, some of the things Askins wrote set my hair on end. Of course, those articles only exist in the yellowing copies of sixty-year old gun mags yellowing away in someone's basement.

Nowadays, folks need to be really careful what they say, as pretty much anything can be repeated everywhere instantly and archived forever. That doesn't just go for writers in gun magazines.

 

[RX-79G]

The article was poorly written from the point of view of people who think a semantic argument is the same as a logical decision making process. Because Dick resorts to poor analogies people are going to claim that the underlying point he's making is false. It isn't.

The primary problem is that nothing else in the Constitution is analogous to devices designed primarily for killing. This unique commentary on a device; arms, leads to poorly framed analogies on both sides.


The only important take away from the article is that everything in the BoR has legal limits (and they should), and that those limits are always dancing on the edge between regulation and infringement. No dictionary is going to tell you that 1 hour of training is "regulation" and 16 is "infringement". That's the sort of stuff our representative government exists to figure out on a case by case basis.

Simple minded insistence that firearms possession is (uniquely) totally beyond regulation is not the sort of mindset that gets you a seat at the bargaining table. I fear that we give up our right to influence and control our rights by our inability to engage in the debate beyond a refusal to acknowledge that there is anything to debate.

Religious zeal is useful for motivating suicide bombers, but is a real handicap when trying to convince the swing vote or earn concessions from the opposition.


I think Metcalf is risking his career to speak out, which is more than most rabid gun rights advocates would do. He's asking us to get off the sidelines and take control of a national debate, which I think is pretty smart.

The best people to write the regulations and restrictions on the use of arms are those of us who want them and understand them. The current stalemate takes us completely out of the process, and when the general public is once again outraged by a mass murder the gun grabbers are the only people with legislation ready to be passed. That's really stupid on our part.

 

[Frank Ettin]

That said, a few of his statements are correct, but a few of his examples and conclusions are suspect. He asserts that "all constitutional rights are regulated," and that's not wrong. We'll never see a completely unregulated 2nd Amendment, nor would it be a good idea.

Frank Ettin has said much the same thing, but the fact that the Second Amendment may have been regulated in the past does not mean that it was intended to be so...

And I'll say it again. The regulation of the rights protected by the Second Amendment has been, and will continue to be, the reality.

There is a long line of judicial precedent for the proposition that Constitutionally protected rights may be subject to limited governmental regulation, subject to certain standards. How much regulation will pass muster remains to be seen. But the bottom lines are that (1) legislatures will continue to enact gun control laws; and (2) we are unlikely to see all gun control thrown out by the courts. We will therefore always have to live with some level of gun control.

How much or how little control we are saddled with will depend. It will depend in part on how well we can win the hearts and minds of the fence sitters. It will depend on how well we can acquire and maintain political and economic power and how adroitly we wield it. It will depend on how skillfully we handle post Heller litigation.

So whether or not we like it, whether or not we think the Second Amendment allows it and notwithstanding what we think the Founding Fathers would have thought about it, we will have to live with some forms of gun control.

We're left with opportunities to influence how much. Let's make the most of those opportunities.

Why do gun owners accept that it is OK to treat guns as inherently dangerous to the public and require restrictions regardless of use or even non-use?

Given political and legal reality what would you propose doing about it?

 

[NWPilgrim]

Given political and legal reality what would you propose doing about it?

I would start by not buying into the antis terminology and argument that guns need to be controlled and offer to discuss control of dangerous behavior.

If you accept that compromise under their terms is required then you already have lost, it is just a matter of time. When you admit that guns should be treated differently than other objects and your right to "keep" them should also be treated differently than you undermine any argument it is similar to other enumerated individual rights.

 

[RX-79G]

If you accept that compromise under their terms is required then you already have lost, it is just a matter of time. When you admit that guns should be treated differently than other objects and your right to "keep" them should also be treated differently than you undermine any argument it is similar to other enumerated individual rights.

Then consider compromise under your terms, not theirs.

Guns are legally different than other objects. That's the point. Why is that something to not admit?

 

[Frank Ettin]

I would start by not buying into the antis terminology and argument that guns need to be controlled and offer to discuss control of dangerous behavior...

Which means exactly what? And exactly how does that actually affect anything.

...If you accept that compromise under their terms is required then you already have lost, it is just a matter of time. When you admit that guns should be treated differently than other objects and your right to "keep" them should also be treated differently than you undermine any argument it is similar to other enumerated individual rights.

Again, exactly how does that actually accomplish anything?

From my days in business, the elements of a plan must be concrete and actionable and they must be shown to reasonably lead to the achievement of defined, specific goals.

 

[Tom Servo]

So whether or not we like it, whether or not we think the Second Amendment allows it and notwithstanding what we think the Founding Fathers would have thought about it, we will have to live with some forms of gun control.

One of the things Metcalf gripes about is the idea that the Founders didn't want any sort of gun control, and that the 2A forbids it. Nothing could be farther from the truth.

I encourage anyone who hasn't done so to read Adam Winkler's Gunfight. It details how the Founders accepted many restrictions, some of which we'd find absolutely abhorrent today, and how they saw no conflict between those and the 2A.