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Comment by bitwize | Hacker News Reader

I think it's time we revisit the commonly applied interpretations of the First and Second Amendments and see of there's a way to better balance exercise of individual rights against public safety. Perhaps if/when the Supreme Court gets expanded, some less absolutist rulings can be handed down.

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The First and Second Amendments don’t grant you the right to free speech and to bear arms. Being born a human being is where those rights come from. The amendments simply proscribe the government from infringement upon them. Not a hundred SCOTUS judges, not a thousand, not a million of them will change that.

What's the general principle you use to determine that a right comes from being born a human?

"We hold these truths to be self evident..."

Either you see them, or you don't. If you don't see them, explaining why is an exercise in futility.

The Declaration of Independence doesn't claim rights are derived from human nature, but that "certain inalienable rights" are "Endowed by [a] Creator."

So I guess that solves it. We can have all the guns we want because God said so.

The Declaration of Independence isn't part of the U.S. Constitution. The words "god" or "creator" don't appear in the Constitution or Bill of Rights that I'm aware of. It seems quite secular.

https://constitution.congress.gov/constitution/

The Declaration of Independence is not a legally binding document either.

Thanks, that's what I was getting at if I was unclear. It predates the Constitution by more than a decade, with an abandoned Articles of Confederation in the middle.

It's historically important, but not legally meaningful when talking about the later US Constitution of 1789.

Honestly? Those words seem like they could be interpreted as being intended as timeless placeholders.

It is perhaps the single most fundamental aspect of American culture. Though of course, certain people want to subvert that principle in order to aggregate power for themselves and their interest groups. I hope they eventually see the light and embrace America, or meet the same end as the redcoats.

American culture is a lot more narrow than being born human. Perhaps you should have said being born an American?

Billions of people have been born human and never been able to exercise such rights without facing repercussions, so ... claiming inalienability yet not accounting for the effective and de facto removal of them for the majority of the human experience seems like nothing more than an exercise in empty rhetorical tricks.

You honestly believe the concept of human rights is a "rhetorical trick"?

I believe that the idea that they are something anyone is naturally entitled to by God or nature is a rhetorical trick. Specifically, one employed to discount the value of a strong, functional government. I believe that the state of nature outside of that exposes the shallowness of "inalienability."

I believe they are something you have to continually fight for, and that can only be secured by a functional government (which itself is something that requires constant maintenance), vs something you can truly secure for yourself.

And in the particular case of the second amendment, I believe we are in a situation where a "right" granted by our constitution impairs on a right to live freely, free from interference and harm from others, that I personally consider more basic and more essential. The Constitution doesn't have an amendment discussing a right to not get shot, but I don't think that makes it less important.

There is no positive right to be free from harm. Such a right has never existed.

So why not? Why don't I have a right to not be killed by my fellow man? Why is it MORE IMPORTANT that my fellow man have a right to possess and carry weapons that could end my life?

How is the latter "inalienable" and the former is just wishful thinking? The only answer I can find is "because some people in the 18th century wrote one of them down, but not the other."

Wow, talking of rhetorical tricks. In this case, a textbook false dilemma.

The right to bear arms does not negate whatever right to safety you think you have. There are 300 million privately owned firearms in the US. Yet the odds of dying from a firearm homicide are quite small.

And the fun trick here is that "quite small" is meaningless, you would need to compare those odds against those in different countries with different laws...

Think through the implications. Hypothetically if you had the right to not be killed then that would imply that others would be required to do everything possible to protect you. Obviously that would be absurd.

Flagged for no good reason, so I will post it again, because I think it deserves a reply:

You are endorsing human rights abuses by oppressive governments like the Khmer Rouge because that government didn't extend the right to freedom from persecution to their subjects. You are suggesting that it was the Cambodian people's fault for not having a better government that granted them more rights.

This just seems to exemplify the purely-rhetorical aspect of the whole conversation about "natural rights."

"The government didn't extend the right to freedom from persecution" could be worded in any number of ways, such as "the government infringed on the inalienable rights of the people" but the fact that such an atrocity was committed says, to me, that claiming such rights are inherent, natural, or inalienable is rather useless. They clearly can be very easily violated. God or nature is not going to stop the violators, at least not during this life. So what good to the victims is a claim that the rights are inherent and a natural result of being born as a human?

You just admitted that it was an atrocity however. That implies the people who were killed had their rights violated. Your concept of rights granted by the government to the people is not self-consistent.

That's not a definition of atrocity that I'm familiar with. We could extend this to quibble about the definitions of evil, cruel, what have you, as well, but it's a wide diversion at this point. "Nature does not guarantee you anything" is not "there is no such thing as moral right or wrong."

Let's ask a different question: if there are inalienable rights, what is the complete set? Do you expect everyone to agree on what that set of rights is? If one person doesn't believe that guns are one of those, and another does, how do you break that tie? If there is truly a certain set of rights that's a law of nature, should everyone converge on the same set?

My point is that it is virtually impossible to establish the concept of wrongdoing without the notion of certain innate rights having been violated.

Each person has their belief of what they hold to be human rights. As human beings, it is the duty of each of us to protect what we respectively believe to be the rights of our fellow human beings.

Here is a different question - what makes it an atrocity? You could be technically correct and say "Because other people decided it." but that doesn't give any insight into why.

A natural rights framework has the thumbprint of a lawyer along with outmodedly telological way of thinking that can only see a wrong as a "crime" but is willing to construct justifications for what they already believe.

But mixed in the principles isn't just accepting "is wrong because I said so" as a proof. Thus it has contrived post hoc cruft to achieve consistency with assumptions but also underlying ethical principles.

Why not? Couldn't the UN Universal Declaration of Human Rights be a "rhetorical trick"?

> Being born a human being is where those rights [free speech, bear arms] come from.

How does your theory account for the empirical observation that those rights are largely absent in much of the world?

It’s not a theory, it’s an axiomatic principle. Oppression does exist, and it’s an affront to that principle.

"Human rights" are a fiction, like money. The libertarian idea is that we collectively pretend human rights are real because doing so leads to empirically better outcomes in terms of human happiness, lack of suffering, etc.

So here's a question: has the absolutist interpretation of free speech and gun rights currently applied in the USA led to better outcomes than a more restricted interpretation? Well, let's see. We can compare the USA to other liberal democracies which do not acknowledge a near-absolute right to free speech, and have very strict gun laws -- like Germany, Canada, and New Zealand just to pick three. And if we do we find the USA is a dumpster fire compared to those countries, a place where white supremacism has run amok and schools must have active-shooter drills because of the ease with which nuts can get their hands on firearms.

So yeah, I'd say the more restrictive interpretation of human rights has, empirically, won out.

> “Human rights” are a fiction, like money.

There are countless dictators and tyrants who agree with you on that.

We have ways of changing the constitution. If there was support for these changes, it could be done, as it is it won't happen because there is not enough support for what you are saying. Any other method of subverting the constitution is wrong would violate the "contract" we have with our government... only bad things can result.

And yet the reason we have the interpretation of the second amendment we have today comes down to a small panel of people ruling at a particular moment in time.

Do you think you could pass an amendment expanding the second amendment had the court ruled more narrowly on it? I don't.

It's a thin line of interpretation currently, so we shouldn't pretend that there's overwhelming support for the status quo either. The reason these court challenges happen in the first place has been because large groups of Americans have chosen to try to restrict guns.

So let's keep having the conversation until we decide to fix the constitution.

just how could the court have ruled more narrowly than 5-4? Maybe Thomas only counts as 3/5 of a vote cuz hes black?

Interpreted the second amendment more narrowly. Think for a second.

Yeah, I did. A better ruling would have been on P&I grounds, as Gura had asked the court and Thomas concurred.

THAT would have nuked the drug war from orbit, along with every other instance of modern federal over reach.

As far as I’m concerned the ruling was stupidly ruled, and very carefully crafted to not upset any apple carts.

ETA: reread your statement above, it was very easy for me to misconstrue “narrow” as in the vote tally.

There are _plenty_ of people that would modify the 2nd to make it more expansive, not less. I'd count myself as one of them.

Well I am talking about all the bill of rights, not just the 2nd amendment but ya the SC has upheld the 2nd and is incorporated under the 14th. Sometimes I feel like we are getting gaslighted by people wanting to curb the 1st and 2nd amendments by saying they don't mean what they plainly say they mean.

> so we shouldn't pretend that there's overwhelming support for the status quo either.

I never said there was overwhelming support, I just said that there was a process in place to change if we want to. I don't like underhandedness, if enough people want to "fix" or eliminate the 2A, then someone one ought to propose a new amendment plainly stating as such and see how well that goes.

> Do you think you could pass an amendment expanding the second amendment had the court ruled more narrowly on it?

Depends on how narrowly. Overall I would consider an amendment strengthening the 2A more likely than removing the 2A.

There are relatively few states with strict gun laws and more constitutional carry states every year.

There is one other point I wanted to bring up. The 2A was designed to protect the people/states from the Federal Govt. so it was sort a "check" on Govt. power. So I do find wrong to think that the Judicial Branch of the Federal Govt. can have the power to remove this check unilaterally. This is a bit like if one branch decided another branch of government could be dissolved. Or even if one branch decided to not follow the rules (like a siting Pres. deciding an election is invalid...). Anyway, just saying that I think the only legitimate way to alter/remove the 2A would be for amendment driven by 2/3 states method or _maybe_ through congress since they are supposed to represent the people.

The current, absolutist interpretation of the First Amendment came about in 1969, as a result of a Supreme Court ruling. Before that, Congress had considerably more leeway in restricting speech, and freely did so starting with the Alien and Sedition Acts.

We're living in an era where foreign states are running disinformation campaigns that swing elections. I think it's time we start thinking about putting the Brandenburg v. Ohio genie back in the bottle.

So we should destroy democracy to save it then? Democracy without freedom of expression can only be described as manipulated at best.

The Alien and Sedition Acts outright caused an election of somebody in jail whose defense can be paraphrased as "yeah I wrote it but this law is clearly unconstitutional bullshit". It wasn't fit for its stated purpose.

The most extensive 2A ruling from the Supreme Court to date is DC v. Heller. The majority opinion has the following bit in it:

> Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

As well as:

> We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” ... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Are you seriously claiming that this is an "absolutist" interpretation?

Refraining from packing the court is one of the very last truces still in place just barely holding the country together by a thread.

I truly wonder what you suppose the marginal odds are that you or someone you love is killed in an event that your proposed action would prevent, vs the marginal odds that you or someone you love is killed as a somewhere-down-the-line butterfly effect of your trying to take that action?

If the party in power now packs the court, the other party will pack it the other way when it gets in power.

One of the many reasons it's a stupid idea.

The reasonable end game is probably something like justices with term limits, or a fixed number of appointments per presidential term.

We probably will never get there without having to play stupid political games in the meantime, given the state of our political parties.

You don't understand. The party that packs the court should have enough votes to make sure they never lose power again. If the party in power packs the court, what's going to happen is the other half of the country will just declare the federal government illegitimate and form their own.

I'm counting at least one Supreme Court justice robbed of the American people.

Two more are ... questionable....

Which is why they are pushing to make DC the 51st state in tandem to ensure that doesn't happen.

https://www.npr.org/2021/04/22/989119412/house-democrats-pas...

Yeah, fuck those people, they don't deserve representation cause it would be bad for the Republican Party.

The law has a solution for this. Portions of DC can and have been given back to the states. Frankly I think they should give the bulk of the "residential and normal city" areas of DC back to MD.

MD doesn't want it, and I don't think there's a mechanism to give it back against their will

Perhaps we need to lock everybody down and forbid them to leave their own homes, so that we can take stock of the situation and figure out what's going on.

Everyone should wear two vests too to stop the spread of bullets.

Hypothetical scenario: Donald Trump's political career miraculously comes back to life in 2024 and he is elected president. He does just as you propose and expands the supreme court with justices of his choosing, and curtails the first and second ammendments.

Do you still support these policy changes?

I might vote for Trump if he promised to fight against the second amendment. Enough lives have been lost because of our desire to potentially be heroes in a hypothetical uprising. The second amendment has been ineffective against so many government abuses to date, and enabled so much citizen violence. Nice idea to try, shame it didn't work, time to fix it.

Not so much the first, though...

Why not just live in a state with more strict gun laws and let people of other states live like they want? As someone in the rural US, guns are part of my heritage. Police response times can be 40+ minutes in non-urban areas, and removing legal guns would just make us vulnerable.

Because the Republican party and the Supreme Court has been eroding the ability of states to HAVE more strict gun laws?

I live in California, why don't the folks who want guns GTFO themselves, instead of trying to change our laws through activist judges?

So we're in agreement that regional cultural differences need to be embraced and allowed in the legal system. Good! Now what do we need to do to make this a reality in our justice system?

I'm actually NOT convinced that such differences should be allowed, but given that you ARE: you should change the constitution - or the members of the courts interpreting it - to allow my state to restrict guns, because right now the claim is that such a thing violates the second amendment.

Why are you so concerned about how people in other states choose to live?

Guns don't stay where they start.

Hell, it's even an INTERNATIONAL thing - US guns end up enabling violence in Mexico, too!

> Guns don't stay where they start.

Neither do criminals, drugs or marriages, however I don't propose giving people in the next state over control of those things.

What are you talking about? States have been running wild passing unconstitutional gun laws for over a decade. All the Supreme Court has said on the 2nd amendment is the feds and states can't ban weapons in common use, specifically handguns - yet California has completely IGNORED this via it's handgun "roster" which is deliberately designed as a slow motion handgun ban. And you can't blame Republicans either - they have no power to stop California (which has a D supermajority) from passing gun laws.

"Over a decade" because pre-2008 it was much more of an open question what "constitutional" meant re: gun laws, no? Hence my claim of erosion: one party decided that their interpretation was now the law of the land, overruling what the populations of certain cities and states might want.

I thought activist judges were bad?

Is judicial activism now just any time a case is decided in a way you don't like?

Hah, I grew up listening to enough Rush Limbaugh to know that it's ALWAYS been that, I just like co-opting some of the terms.

There are literally millions of defensive uses of firearms every year. Source: the CDC. https://repository.gheli.harvard.edu/repository/12225/

1) That's not the CDC. Not even a little bit. You linked to an incubator at Harvard which links to a document produced in response to an executive order and whose suggested citation credits the National Academies of Sciences, a nonprofit, nongovernmental organization. The chain went Barack Obama -> CDC -> Institute of Medicine (a subset of the NAS) -> A committee. At no point did the CDC adopt or endorse this report.

2) Following the trail of sources from the link you provide eventually gets you to https://www.nap.edu/read/18319/chapter/3?term=defen#15 which repeatedly states "the exact number remains disputed" and "is a controversy in the field." The document does not endorse ANY particular figure, and provides 108k, 500k, and 3M as estimates produced by surveys. There is no discussion of the validity or reliability of these surveys in this cursory overview; given that the numbers remain controversial and disputed I expect that both these properties are wanting. All the estimates come from academic sources, not governmental entities.

The CDC did study defensive gun use in the 1990s.

https://www.forbes.com/sites/paulhsieh/2018/04/30/that-time-...

The TL;DR is that we don't have reliable data.

> Hypothetical scenario: Donald Trump's political career miraculously comes back to life in 2024 and he is elected president. He does just as you propose and expands the supreme court with justices of his choosing, and...

Forget what he does. In this scenario, do you still support expanding the Supreme Court?

Absolutely not, and that's the point. People are only considering this right now because it happens to be politically advantageous in the short term. It is incredibly reckless to subvert rights and institutions for political goals like that, and no amount of whataboutism can change that.

Absolutely. What it will do is destroy forever the independence of the Supreme Court. That is far to high a price to pay for temporary political advantage, for either side. (Which is not to say that somebody won't try...)

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