Comment by ethbr1 | Hacker News Reader

Comment by ethbr1 | Hacker News Reader

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The issue, from a public safety and law enforcement perspective, is that intent is mostly a post-hoc construction. Whereas possession can be judged before an act occurs.

If the US intends to stick to the freedom-first philosophy with regards to possession, then it would behoove everyone to have a more nuanced legal view of intent.

E.g. graduated escalating consequences for 'Making threats and remarks of a violent nature' to 'Taking actions that indicate preparation for violent action' etc.

Like you, I think if people want to mess around with homemade explosives, and they have enough land to do so, then that's their business.

BUT! There should also be a pattern of behavior, evidence, and witnessed statements where we say 'This particular individual has ceded the right to access dangerous things.'

So essentially being able to charge and convict someone (with due process) of 'violent intent', with no financial or incarceration penalties, but temporary addition (5 year?) to lists that preclude their being able to access dangerous material (guns, explosives, etc).

Of course, the NRA has historically been the biggest lobbyist blocker to anything of that nature, given their paranoia that any legal government consequences will spiral into a panopticon.

Unfortunately, that view doesn't solve the fact that there are very troubled individuals out there, and we'd all be able to be afforded greater freedom if we did a better job in managing those particular people's access to lethal things.

"So essentially being able to charge and convict someone (with due process) of 'violent intent', with no financial or incarceration penalties, but temporary addition to a lists that preclude their being able to access dangerous material (guns, explosives, etc)."

I'm not sure what you're getting at on this one. This individual faces potential incarceration. He is on bail and would be denied access to dangerous things... in theory. Of course he manufactured explosives, so it's not like he has to pass a background check to come into possession of them again.

"and we'd all be able to be afforded greater freedom if we did a better job in managing those particular people's access to lethal things."

Do you have some examples of additional freedoms we're missing currently?

"Of course, the NRA has historically been the biggest lobbyist blocker to anything of that nature, given their paranoia that any legal government consequences will spiral into a panopticon."

I'm not exactly sure what you're referring to that they oppose. But the legal term for a slippery slope is the Overton Window. Speaking of gun regulations generally, it's not hard to understand why a pro-gun group would be against the types of additional regulations that are already present in other states that arguable do not improve safety or could even reduce it in legitimate use circumstances (eg hollowpoint bans, etc).

> This individual faces potential incarceration. He is on bail and would be denied access to dangerous things... in theory.

The current US justice system is based around conviction of a crime (which usually requires having already committed it, or a VERY high bar for having intended to do so) in order to impose consequences (usually severe).

Or limitations on individuals' rights after conviction of the above.

There's no lesser standard of 'at higher risk to commit a crime', aside from a patchwork of short-duration city/state red-flag type laws, most of which are being challenged in court.

> Do you have some examples of additional freedoms we're missing currently?

Access to NFA-controlled devices? [0]

E.g. a breach-loading potato gun

> I'm not exactly sure what you're referring to that they oppose. But the legal term for a slippery slope is the Overton Window.

The Overton Window isn't a legal term: it's a PR/clickbait term.

The NRA has and currently opposes red-flag laws [1], even when constructed with due process procedures, because of its mistrust of any government firearm regulation.

If they instead switched their lobbying approach to productively crafting due process procedures that would allow targeting individuals with a history of threats, abuse, and violence, the rest of us could benefit from greater freedom to dangerous devices.

Instead, their tunnel vision on absolute freedom requires repeatedly casting a blind eye to inconvenient situations where disturbed individuals leverage that freedom to kill others.

Solving problems requires clear-eyed appraisals of the risks and benefits of various approaches to arrive at optimal outcomes.

The NRA has fueled the exact opposite, by leveraging histrionics and fear mongering, not least for its own financial gain. Fuck em.

[0] https://en.m.wikipedia.org/wiki/Title_II_weapons

[1] https://www.nraila.org/search/?t=79503

Oh, you're talking about red flag laws. What makes you think passing red flag laws will provide additional freedoms? It seems highly unlikely that those who support the current red flag laws would support any loosening of other firearm restrictions. Your statement also implicitly assumes that red flag laws would be significantly effective to allow looser restrictions overall. However, groups like RAND have found no conclusive evidence that red flags work. The best evidence they have is potentially reducing suicides. What would the protections you mention look like? The whole point of moving things like red flag laws or civil asset forfeiture to the civil side is because it lacks the protections on the criminal side - lower burden of proof, no right to representation, ex parte proceedings, etc. It's no wonder we see constant abuses of the process in traditional PFAs during divorces in many states. Surely we could fix the existing processes to ameliorate the problems and concerns thus providing a solid basis for the argument to expand them. Currently, the ACLU opposes most of the red flag laws due to civil liberties issues.

I would bet that the NRA will propose ammendments to any national red flag legislation introduced, just as they helped shape the 1968 legislation once it looked inevitable. That's all a part of the political game. Sure, the Overton Window is associated with some clickbait, but it's a real and valid concept in politics. This is why groups aren't going to volunteer to help implement things that are counter to their goals, be it the NRA or Everytown. Do you really think Everytown would support something like national reciprocity in exchange for red flag laws? No, as they are also a hardliner and playing the game.

"Solving problems requires clear-eyed appraisals of the risks and benefits of various approaches to arrive at optimal outcomes."

So what's the solution? What's the optimal outcome?

No, I'm talking about the need to have a discussion around moving access restrictions to before a crime is committed, while still ensuring individuals have access to due process.

The NRA's blanket opposition to red flag laws is simply one example their willingness to ideologically fight even the simplest approach to a priori restrictions.

> So what's the solution? What's the optimal outcome?

In my ideal world, the US would lean more heavily into universally-accessible but universally-required certification for access to dangerous devices.

Similar to motor vehicles, the default should be that no one has access to these things, but everyone has a right to obtain certification to have them.

As an example, that would look something like national "must issue" concealed weapons permits, but contingent on completing a non-trivial safety course and passing a background check (to ensure the individual isn't spending their free time talking about murdering people online / to their neighbors, appealable ofc).

Instead, we've spent ~60 years wringing our hands to try and square the circle between {everyone deserves access to dangerous things} and {some people are too irresponsible to have dangerous things}.

Why not just start with those facts and craft a viable system from there?

Yeah, that's going to be a tough sell considering the problems with the driving test being a joke and the history of requirements in some areas just being a pretext to deny rights to specific groups or individuals (still to this day). The main problem I see is that a safety course isn't going to prevent violent crime. It could prevent use of force issues or accidents, but those tend to occur at an extremely low rate already (for civilians). The background check part is already implemented depending on jurisdiction.

The way the current system is set up, it's supposed to weed people out before they get access to the more dangerous stuff. As juveniles, if they get convicted of certain offenses, they will be prohibited, at least until 35. We have eroded various aspects of this with selective enforcement, plea deals, and the promoting the continuation of childhood with delays in freedoms and responsibilities. Then for the of-age group we have stuff like conspiracy, voluntary/involuntary commitment, terroristic threats, and all manner of prohibiting offenses. There's certainly some room for improvement, but it hard to say what an effective improvement would be.

>Do you have some examples of additional freedoms we're missing currently?

Freedom from gun violence for thousands of US children annually?

I'm talking about freedoms as in things you can do that were previously restricted by law. People typically don't think of stuff like being negative for lyme disease as a "freedom" from lyme disease. But I also don't see how your claim would be applicable to the conversation at hand. It's jumping to conclusions to say a red flag law would protect thousands of children when places like RAND have not identified any evidence of their effectiveness beyond a possible reduction in suicide.

> Taking actions that indicate preparation for violent action

The contradiction is that that’s literally the content and purpose of the 2A of the US Constitution. It’s not the right to bear arms for hunting deer, or the right to go target shooting. The language is pretty explicit, if it isn’t clear enough the founders took the time to explain the purpose of it in the Federalist Papers after they fought an armed revolution against their own government.

My take on unstable people is that if you’re not stable enough to own guns you’re not stable enough to participate in society. If the person in this case made credible threats, they should charge him with a crime other than possession of a firearm accessory. There are plenty of other ways that deranged people hurt others (Like driving a vehicle into a christmas market). The only way we can claim to live in a free society is by maintaining a system of due process.

Does the second amendment authorize me to bear nuclear weapons?

If no, you acknowledge there is a line. We’re allowed to bear arms, but not any and all arms.

If yes, maybe your views are consistent but you’re utterly insane.

It should guarantee the right to carry the same weapon we give to 17 year kids in the military. Which is an M4 carbine. That would be the modern musket and more or less consistent with historic tradition.

You've conceded that there should be some limits. You think they should be at one point. I disagree.

Since the second amendment itself doesn’t contain any express instructions as to who can bear which arms—which is a necessary consideration once you’ve accepted that everyone shouldn’t be able to bear every arm—we’re now solidly in the realm of political debate rather than second amendment absolutism.

2A people presumably think that even though there are some edge cases that are bad (citizens owning nuclear weapons), the risk of unintended consequences of legislating against these cases is too great given the small-to-nil occurrence of these cases in the real world.

I’m sure people thought the same thing back when fully automatic weapons were first invented. “Sure gosh but who is ever going to tow around a Gatling gun with them?”

Nuclear weapons are an intentionally-absurd example to force a concession that there obviously must be limits. Frequently people will even acknowledge that the 2A probably doesn’t cover them (or at least oughtn’t be interpreted in a way that it does). From there it’s generally pretty easy to walk reasonable people backward towards MANPADs, and then further on down to things that aren’t quite so difficult to acquire.

Sure, but there’s a gap between “this would be bad” and “we need to change the law to stop it happening”, so what you think of as a concession isn’t necessarily conceding anything at all.

> The language is pretty explicit

The literal text is ambiguous to a degree that commas change its meaning:

>> 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.

Relying on contemporaneous ancillary (and unratified with consensus) documents should be an obvious sign that textual clarity is lacking.

Furthermore, the ability of an 18th century individual to craft weapons of mass destruction was vastly inferior to our modern access.

> My take on unstable people is that if you’re not stable enough to own guns you’re not stable enough to participate in society. If the person in this case made credible threats, they should charge him with a crime other than possession of a firearm accessory.

Not only stability! Just normal common sense.

~20% of English-proficient Americans can't do basic numerical tasks in English [0].

I wouldn't trust anyone that dumb around a loaded 6-lb trigger pull.

As the aphorism goes, some people ain't got the sense God saw fit to give a squirrel.

And while they and unstable people are fully entitled to live their lives however they want, it would behoove society at large to say 'Maybe we're not going to hand you things that require the highest amount of safety and carefulness.'

But I'm from the generation where you started out firearms ownership with a hunter safety course at the local firehouse, followed by supervised use with your family, eventually progressing to independent use by high school.

[0] https://nces.ed.gov/pubs2020/2020025.pdf

> ~20% of English-proficient Americans can't do basic numerical tasks in English [0]

We don’t gatekeep rights based on someone’s perceived intelligence. The same logic was used to keep southern blacks from voting in the civil rights era and was promptly struck down. If you’re an American, it’s your inalienable right.

> The literal text is ambiguous to a degree that commas change its meaning

The people who wrote the amendment literally wrote essays explaining their thought process. It’s not like we’re deciphering ancient greek artifacts, we all know exactly what the founders meant when they wrote it. The Supreme Court has repeatedly affirmed this extremely obvious interpretation.

>My take on unstable people is that if you’re not stable enough to own guns you’re not stable enough to participate in society. I

Exactly. Prison or full rights, guns, voting, living beside a school, all of it. Get rid of all this inbetween crap.

Oh, the prisons are too crowded you say? Well perhaps criminalize less things.

"Oh, the prisons are too crowded you say? Well perhaps criminalize less things."

We can also focus on actual rehabilitation or fewer heavy handed sentences for non-violent offenders. A lot of things that are currently prison sentences could potentially be probation and fines.

The second amendment was to make sure the government could organize militias to put down armed rebellions, not to empower them.

You may consider it hypocritical, but the vast majority of the founders ( Jefferson was an exception) were very very anti armed rebellion! That's the context for the Constitution replacing the articles of confederation. Having recently fought one they didn't think we needed any more revolutions and didn't want any more revolutions! And didn't appreciate several violent incidents like Shays rebellion.

https://www.reddit.com/r/AskHistorians/comments/75z37x/what_...

> Shays’ Rebellion was an armed uprising led by former Massachusetts militiamen and veterans of the American Revolution which took place between 1786 - 1787. Daniel Shays led several thousand ‘rebels" to fight against the economic injustices that were facing farmers and agrarian peasants all across America. (3) These farmers were experiencing extreme poverty following the end of the Revolutionary War. All across America, farmers saw their lands foreclosed on in unfair property seizures, and they wanted to fight back. They were also trying to fight taxes which were beginning to be levied against them.(4) People in rural American fought these perceived injustices in a few ways, with Shays' Rebellion being the most violent. Shays' Rebellion would ultimately be put down, but it startled the gentry who feared further uprisings throughout the United States.

> While we call it a “rebellion" today, these men did not label themselves this way. They called themselves “regulators,” specifically they called themselves the “Massachusetts Regulation,” modeling off of the North Carolina Regulators that we saw just a moment ago.(5) This was the larger part of a trend of poor Americans fighting back against economic injustice. The idea of “civilian regulation” was catching on and becoming a popular idea for ending government corruption. They believed that if the government wasn't regulating itself on behalf of "We the People", then "the People" had the right to regulate, or take back the government – to take it back and do what they believed was right. They didn't see themselves as a rebellion, but rather the gentry labeled them as such in order to de-legitimize their cause. By calling them "rebels," neutral Americans would see these men as insurgents who needed to be stopped. But this regulation was not the only type of fighting Americans across the country participated in. Many states saw widespread revolts ...

> By the time the the constitutional convention convened, America was under extreme duress. In Terry Bouton's article "A Road Closed: Rural Insurgency in Post-Independence Pennsylvania" he masterfully explained the fighting and rebellion that took place in the rural country sides of Pennsylvania that mirrored what had happened in Massachusetts.(7) The gentry were terrified that they were losing control of rural America, and as a result they would not be able to seize foreclosed land and collect taxes, which they needed. Empowering militias to be trained and carry firearms allowed the gentry to call up these men in times of need and suppress these rebellions that were taking place. The Founders knew that the only solutions were to call up militias as they had done in North Carolina and Massachusetts.

...

> Multiple other bills of rights from other states had already protected a militia's right to bear arms (such as Section 13 of Virginia's Declaration of Rights) and many of these states were fighting to have the federal government protect this as well. Here their declaration stated:

> > SEC. 13. That a well-regulated militia, or composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.(8)

> This wording is even more carefully crafted then in the national Bill of Rights. Here, they define “well-regulated” meaning they were trained my military officers. You also see that they define the purpose of it as being necessary to “defend” the state (implying against people in rebellion) and they of course explain why they feared a standing Army. Now if you examine the wording of the Second Amendment, we can see some clear similarities:

> > 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.

> Like in Virginia, “well regulated" is the key phrase. They are referring to militias led by people like Benjamin Lincoln and his Massachusetts Militia, not Shays and his "rebellion". The idea that people need firearms to protect themselves from the government is not accurate. It was a message propagated by anti-gun control advocates of the 1980s. This “right” was crafted when rebellions were happening everywhere and the only way the government could maintain control was to make sure they could call up their militias.

The interesting part is how militias are defined. Looking at how conscription during the whiskey rebellion and US 10 ss 246 provides some interesting background and raises questions on how that could be applied in a non-discriminatory way today. Another interesting point is how the text of other state constitutions of that time have extremely similar wording but also include personal self defense (see PA).

If your theory is correct then why does the text say the right of the people to keep and bear arms, and not the right of the militia to keep and bear arms?

Because the militia is necessarily made of the people. There are even definitions for the implicit militia in 10 US ss 246. When individuals were conscripted to fight in the militia to put down the whisky rebellion, they brought their own arms. There is an interesting history of how those arms were treated - even exclusions when property was seized by the courts to pay debts the militia related arms were not taken. By leaving the arms with the people rather than only issuing them when their is an uprising lends itself to the "well regulated" part, as regulated has a different meaning when used to describe soldiers/units of the period - generally skilled and disciplined, which requires practice. There really is a lot to read into and interpret in many areas of the constitution based on the language differences from then vs now, the the second amendment being a prime example.

> think if people want to mess around with homemade explosives, and they have enough land to do so, then that's their business.

Do you also believe you should not need a driving license, or an electrician should not have any certification?

Because an average person can watch a YouTube video and wire a circuit, or learn to drive by themselves, but their chances of making explosives without posing a danger for themselves or others are far, far lower.

This should be a licensed activity where you need to demonstrate at least basic competence and mental stability.

A drivers license on your own land - no. Adding a circuit to your own house generally doesn't need a license but does need a permit. Driving without a license or doing electrical work without a license/permit usually isnt sending you to prison for years. Manufacturing explosives generally requires licenses and could otherwise result in years of prison. I'm not sure if the law works this way, but I would hope there are some exceptions for small quantities. I see plenty of stuff online about black powder manufacturing, which I think is cool as an insight into history. I'm sure it's dangerous, but in small quantities it's really only a danger to oneself. Honestly, I see that as less of a danger to others than reckless driving on a road or even electrical work after the house is sold.

Or to put it another way, the things we're regulating as a society should be an individual's ability to cause harm to others (either intentionally or unintentionally), as that deprives others of their freedom to live their own lives.

If an individual is endangering only themselves in a way that poses no risk to others (e.g. blowing up stumps on their own large property), then that's a responsibility they should be given.

Which does suggest stricter limits on higher density areas (read: cities), given the proximity of people and lack of empty, fuck-around space.

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