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Comment by ctdonath | Hacker News Reader

Demoralizing that 3 judges ignore obvious Constitutional rights, yes, but at least hopeful that twice that many disagree with them, and may apply the same reasoning to other equally obvious Constitutional rights.

The right to own & carry weapons, explicitly enumerated in the Constitution and held as a clear right by the Supreme Court, may benefit from this ruling (to the surprise & dismay of some). Laws delaying (often for days or months) purchase of weapons, or of obtaining licenses to own or carry (themselves subject to debate for other reasons), may be challenged in court with the same reasoning as "briefly" holding someone without cause, regarding anything more than a 5-minute background check for adjudicated felonies or mental illness. From this ruling, we might actually get to one that acknowledges "shall not be infringed" means what it says.

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I'd rather they clarified "well-regulated militia".

"The gestation period of some species of opossum being seven months, the right of the people to speak freely shall not be infringed."

(A silly example, but hopefully effective in showing the trick of language.)

It's pretty clear that the founding fathers thought civilians should be able to own deadly weapons. The purpose for this was defense not only of the state, but of the individual.

But even though I am a gun owner, I think the second amendment is extremely dated and should be ignored. So what if the founding fathers thought civilians should own guns? However intelligent and knowledgable they were, they have been superseded in all dimensions by two centuries of scientific and technological progress. If gun ownership decreases crime, OK. Tweak the laws to increase gun ownership. If it increases crime, OK. Do the opposite. If some middle-ground licensing thing works, do that. I find firearms fun to shoot, and I could see how they could be useful in self-defense, but what I really care about is the well-being of people. It's best to do whatever helps people, not what some centuries-old text says.

Fortunately, if the Talmud and D&D have taught us anything, it's that people can interpret any rule to match their existing view. In the long run, judges will rule in favor of public safety no matter the text of the constitution.

For what it's worth, the largest firearms lobbying group in the country, and generally its members, agreed with you up until a coup and marketing campaign in the late 1970s [1][2][3], if the "liberal media" is to be believed.

[1]: http://www.washingtonpost.com/politics/how-nras-true-believe...

[2]: http://www.salon.com/2013/01/14/the_nra_once_supported_gun_c...

[3]: http://www.shmoop.com/right-to-bear-arms/charlton-heston-nra...

Oh, yes, the NRA has pulled a huge con job on a vast swath of the American public; in effect turning many of us into little lobbyists for the gun manufacturers.

Thanks for providing all the links.

Not to mention NRA not only didn't support DC v. Heller, but actively opposed it by filing a motion brief in support of the government. After all, without gun control to fear, who would buy NRA memberships?

Sometimes, an organization's need to survive outweighs or compromises their stated goals.

It's also worth noting in the debate that armed civilians aren't doing anything against actual government oppression. Police are militarised in the US now, and are sending SWAT teams against civilians with alarming regularity. That 'armed population guarding against government oppression' hasn't done a thing. I do heartily agree with the idea that we need to make our laws in the modern context, not in the Founding Fathers context - after all, it took 80 years to rid their republic of condoned industrialised slavery, and even then that was a byproduct of other issues.

As for your example sentence, you're saying that the two halves of the sentence are entirely unrelated, when it's clear given the subject matters in the constitutional phrases that they are related. Are there any other such examples from the same lawmakers where two halves of a sentence are supposedly utterly unrelated to each other?

Au contraire, civilians DO push back against oppression, and when they do the government gets the message and stays back for a long time. A couple decades ago, the government attempted to stage some high-profile violent raids (Waco; Ruby Ridge) over some very petty issues (alleged failure to pay a $200 tax; cut a gun barrel 1cm too short), and were immediately resisted with significant firepower; the attempts were spectacular failures, and while the intended targets mostly died in the conflict, the government refrained from such behavior again for nearly 15 years.

Time having passed, police/DHS are ramping up their domestic firepower and increasing their militarized responses to mundane crime. Criminals being (on the whole) the targets, little has been done in response. However, a similar violent act was nearly perpetrated on regular citizens at Brady Ranch last year, and there was a very tense armed standoff whereby the federal agents backed down, having been given the message again.

Alas, many confuse the lack of frequent armed resistance with no resistance. Resistance is rarely necessary, when the other side gets the reminder and acts according to it. There is, unfortunately, a growing tendency to dismiss that reminder again, and there is, unfortunately, a growing number of citizens AND government agents who are waiting for, if not looking for, another heavily armed violent encounter.

What you have just described is not "pushing back against oppression", it's "fighting like a dog when your back is to the wall". Laws aren't changing, SWAT teams and tanks are still proliferating amongst the police, and

It's a pity that your national dialogue around defence from oppression sits around "firearms" rather than "behaving ethically". So what if Waco and Ruby Ridge and Brady Ranch all happened - the US still has the highest number of prisoners per capita (by a factor of five over other western democracies - a rate that really took off around the time of Waco);police are still militarising and buying tanks, throwing in SWAT teams; making bigger and more encompassing three-letter-agencies. The edifice barely even stumbled; business as usual. If anything, the love of firearms and solving problems by force is encouraging the militarisation of police and heavy-handedness with the outcasts of society.

In the USA, it's axiomatic to not consider armed active resistance until your back is to the wall. Thing is, when that point comes one does not fight like a dog (unarmed), but with such firepower that the oppressor feels compelled to use SWAT teams and tanks ... and even then hesitates to do so.

Laws are changing, slowly. The next Presidential election should prove interesting in this regard.

Interestingly, those promoting defense from oppression via "firearms" are "behaving ethically" - licensed gun owners are among the most law-abiding & ethical citizens (popular quote: "an armed society is a polite society"). That Waco & Ruby Ridge & Brady Ranch all happened IS significant, because they were followed by a significant drop in violent raids, militarization notwithstanding.

Don't conflate resistance to oppression with incarceration rates, as the two categories practically do not overlap. The militarization likely has more to do with police desperately wanting to minimize their risk (statistics don't matter to a cop when he's the one at grave risk of being killed), and a criminal subculture which is he11-bent on violating clear laws (if criminals won't "go quietly", and won't stop engaging in unlawful behavior, that leaves the state little choice but resort to the natural foundation of law: force and incarceration).

an armed society is a polite society

This is such a throwaway slogan. Go check out the worst spots of Africa. Plenty of arms, not much politeness. Also, apart from not being true, it also encourages politeness for the wrong reason: fear of arms. Politeness should be due to respect of people, not fear of what they might do.

It's just as easy to say "an unarmed society is a polite society". There's not much difference between the US and Australia when it comes to politeness, and our society is unarmed. Japan is unarmed, and politeness is a keystone of their society. The British are unarmed, and their stereotype is one of unsufferable politeness.

Don't conflate resistance to oppression with incarceration rates, as the two categories practically do not overlap.

I wasn't conflating them, I was using it as yet another metric of US government oppression, which the armed population isn't stopping. Your last paragraph is also stating that the police are militarising due to the armed population, which is kind of my point - rather than prevent oppression, the armed population is actually doing more to increase it.

Also, I'm not sue what you mean by 'significant drop in violent raids', given that SWAT raids are skyrocketing, an order of magnitude more than they used to be. It's not really a victory if there's only a brief pause before business-as-usual continues.

"licensed gun owners are among the most law-abiding & ethical citizens"

Law-abiding? Ethical? I don't think there is any actual basis for your claim (except that you would like it to be so, maybe).

After all, Cliven Bundy--who I think you mentioned earlier--broke the law for decades. When the democratically-elected government came to enact its penalty for that law-breaking, a lot of white guys with guns came from all around the country to stop the justice system from doing its job.

Wow, thank you for the clearest response I've ever seen on the 2A puzzle!

Yes, exactly, you got it exactly right: whether the founding documents were ever useful, what governing principles do we want to live with now?

We obviously constrain people's agency in lots of ways that are non-controversial, like requiring that people drive on one side of the street or the other, or requiring that people not dump toxic waste in public parks. How do guns fit into that picture? How does speech, for that matter?

These are good and important questions to think deeply about, and I'm so glad you raised the issue so articulately.

My background, by the way: not a gun owner now, but I've used them enough to have a pretty good familiarity with them (and was once licensed to do armed security work, even). I'd fully endorse gun ownership restrictions, background checks, etc. I have never seen any rational argument against such laws; to me, it just goes to show how the NRA has done an amazing job conning a lot of people into becoming their own private gun lobby army, heh heh.

    > whether the founding documents were ever useful, what
    > governing principles do we want to live with now?

My understanding is that if you can get 2/3 of Congress to agree with whatever governing principles you want to live with now, you can amend the constitution. It's far from clear to me (a bleeding heart liberal) that 2/3 of the people, let alone 2/3 of Congress, want to see the 2nd Amendment rights re-amended.

Well, it needs 2/3 of Congress to propose it, and then 3/4 of the states to ratify it, so it's a bit harder than that, but your point stands. The constitution does indeed have provisions to change with the times, provided the nation agrees.

Stability is also important of course, but a reasonable balance seems to have been struck. The constitution does indeed evolve with the times, while still remaining more or less the same document, upholding the same basic ideals.

I think you'd find very little informed support for that claim about a reasonable balance. The US is on the very far end of rigidity in its political system among the western nations. Heh, no less a progressive extremist than Antonin Scalia himself said that, if he could amend the constitution, it would be to make it easier to amend.

Oh, yes, change happens veerrryyy slowly. Agreed, 100%.

chroma's insight was that the question we should be asking is not "what do these centuries-old documents tell us to do?" but "how do we want to live, in the world we have now?"

> In the long run, judges will rule in favor of public safety no matter the text of the constitution.

What about this ruling? Is this in favor "of public safety no matter the text of the constitution"? It sounds like the cop was trying to get meth off the streets, isn't that a matter "of public safety"?

> ..., but what I really care about is the well-being of people. It's best to do whatever helps people, not what some centuries-old text says.

The problem, as you point out, is that not everyone interprets "well-being of people" the same way. For some, it means largely sticking to this centuries-old text.

A topic on which thousands (if not tens of thousands) of hyper detailed essays and published articles have been written.

Whether what a "well-regulated militia" meant in 1776 has any relevance to 2015 is also a topic upon which many, many essays have been written.

You might enjoy reading the pre-amble to the Bill of Rights. I could tell you, but you'll appreciate it more when you see it yourself. It gives context to the Bill of Rights that I think most people have forgotten.

It also makes it clear that no interpretation of that phrase could undermine the right.

TL;DR - a proper & updated rephrasing of the right & clause would be "The existence of a standing army notwithstanding, the right of the people to own and carry weapons shall not be infringed."

The typical response equates "the people" with "well regulated militia" by observing that "well regulated" meant equipped & trained, which all able-bodied males were expected to be (per the Militia Act of 1792, each was to buy standardized weapons & gear and participate in local training).

The typical dissenting response equates "well regulated militia" to "standing army", explaining the right as "of course active soldiers have a natural right to carry exactly and only what weapons their commanding officers order them to", which hardly constitutes a "right" requiring enumeration.

An alternate response I'm growing fond of enhances the "the preamble was explanatory but ultimately meaningless" argument others gave here. The Founding Fathers had a strong dislike for standing armies, but grudgingly realized that one would be required because an armed populace was inadequate to the task of advanced national security. Citizens being an uncooperative & cranky & poor bunch, there would be a need for a well-equipped, highly-trained, severely-disciplined military body ... a standing army, necessary to protect the states individually and the country as a whole; the citizenry should be able to do the job themselves, but we can't be sure without formal troops. Should a standing army be created, they'd be faced with arguments (like we're seeing right now) that there would be no need for an armed population because a standing army was ready to protect the country...and then the government could proceed to disarm the people at large, leaving a situation that the Founding Fathers had just fought a prolonged war to eliminate. Ergo, the right as enumerated is best understood as "The existence of a standing army notwithstanding, the right of the people to own and carry weapons shall not be infringed."

What do you want clarified? The meaning is very clear, and well-established by the courts. The prefatory clause it's a part of is a matter of some dispute and interpretation, but the meaning of "well-regulated militia" itself, is clear. (Which is to say, "well-regulated" here is not used in the same sense as it would be in the phrase "a well-regulated broadband industry", on the off chance that's what you're getting at.)

Perhaps what you're getting at was addressed in the Supreme Court case District of Columbia v. Heller: http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

Actually you cannot exclude felons and mentally ill people. The constitution is clear cut about it. They are people.

Alas, the Supreme Court and legislature at large have concluded that there should be "reasonable restrictions" whereby individuals can & should, for clear reasons ruled by a court, be prohibited from possessing weapons. While I generally agree with you, this is a reality we'll be hard-pressed to correct. Ergo, and in the interests of restoring the right to most people, we may have to settle for the disarming of people who, individually, due to particular conditions, as reviewed and declared by a court, and listed in public records (which may these days be checked "instantly"), declared individually unfit to be armed as they are a demonstrable threat to themselves and/or the community at large.

Pushing for "they are people [too]" will require a very different approach than where this subthread is going.

I don't think they should be restricted.

If a felon is too dangerous to allow to legally own a gun which can easily be illegally obtained, then they are too dangerous to be released among the general public.

As for the mentally ill, punishing the mentally ill by removing rights will only lead to them not seeking help. Since we assume people mentally competent til proven otherwise and since they will avoid seeking help, this results in an overall increase in danger.

Also, if a poll fee is wrong because it limits a right, why isn't the same true for other fees such as that needed to register a gun?

I'd like to see some sort of "Prove that you can shoot what you're aiming at, store a firearm safely, and do basic maintenance" vetting process for guns. Right now it's about where you live, what country were you born in, have you ever been arrested... all things that have nothing to do with the physics and safety of firearms.

I mean, we already do this with cars.

(Incidentally, this would disqualify me - I can't hit the skybox in Team Fortress 2, never mind real weapons)

Alas, such "prove basic competence" requirements have been repeatedly abused - much akin to the unwarranted delay which this thread is about - to inflict unwarranted delays and other hurdles to gun ownership.

Guns are not complex. Basic operations & maintenance can be taught in a few minutes by the seller. There are just 4 basic safety rules. Pull the trigger, and whatever it's pointing at is destroyed - that's kinda the whole point of a gun. Having hundreds of hours of training, I assure you basic vetting should take no more than 30 minutes. Alas, vetting is often twisted into weeks of delays, hours of obligatory boredom, tens or hundreds of dollars in direct (and more indirect) costs, and rarely actual shooting - all designed to delay exercise of that right. This is quite a rights problem when someone NEEDS one immediately, say to prepare for a "I'm gonna kill you tonight bitch" stalker.

BTW: methinks "driving" would be an enumerated right had the Founding Fathers ever conceived of the notion of making vehicular travel a "licensed privilege". The loudest argument against the Bill Of Rights was precisely that rights not enumerated would be construed as not being rights; prime example: driving.

I guess, but "hit this target", "demonstrate operating a safety, and bring a picture of your gun safe", or "show us how you clean your gun" are things that can be done quickly and can be measured objectively - it wouldn't be like those racist literacy tests for voting.

You'd still get the occasional crazy or evil person jumping through it, but at least you'd avoid idiots who shoot themselves in the nuts because they walk around with a loaded pistol carried in the seam of their trousers.

>it wouldn't be like those racist literacy tests for voting.

A modern day test for voting would also be different, but they are still used as justification to ban any such test. As long as the potential to abuse a test/restriction is reason to ban it, all restrictions should be banned equally.

Last I checked driving is a right. The whole licenses bit is just for driving on public roads (granted, that is the reason 99% driving occurs). It is the difference between owning a gun and taking that gun wherever I want.

I'll be willing as long as we get something similar for voting and having children.

I've always wondered: does the NRA (or a majority of its supporters) believe that Americans have the right to buy a surface to air heat seeking missile and then hang around with it under the departure path of a major airport? If so, then they are nuts. If not, then they support an infringement of the right to keep and bear arms.

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