Debate about Gun Control

[Eric the Green]

(05-21-2017, 07:20 PM)Bob Butler 54 Wrote:

(05-21-2017, 05:45 PM)Eric the Green Wrote: It's not a values-lock question. We all share the value of safety. The disagreement is over the means. In my opinion, guns endanger safety, not protect it. Guns destroy life; that is their purpose. Those who disagree claim that guns are a means of self defense.

It is because survival is at stake that it is a values driven question.  One answer or the other, there is a deep emotional element in saying how the world works and how one achieves one's goals.  As much as I distrust the red perspective, as much as I think they have gone too far for too long in many respects, some of their basic perspectives have merit at a values level.  Individuals have responsibilities and need the freedom and tools to make their own choices.  The world is a dangerous place.  Citizens needs the tools, skills and attitudes necessary to thrive.

There are some aspects of the gun debate where meaningful debate is possible.  The basic question of whether one can protect one's self, one's family, one's community is a values thing.  Someone who takes the responsibility seriously just isn't going to give it up.  I don't need to tell you that some are just as firmly committed to the opposite point of view.  "Claim that guns are a means of self defense"?  They are clearly the most effective way to prevent an immoral person from practicing his immorality with impunity.

Those on the "blue" side of the debate disagree, quite strenuously. They (we) are convinced that guns are a threat to public safety, or that at least they are if unregulated or military. So, it's not a values question at all. It's a different view on what fulfills the value that both sides have. So, neither side is values locked, since the same value is at stake on both sides. The question then is why sometimes (as in your case in your statement here) one side does not acknowledge the concern of the other. I'm not sure, except that views on guns have become part of the divide of the country. Some people who value guns do advocate violence and killing, if not murder. They may be revolutionaries on the right or the left, or terrorists, or gang members, criminals, etc. Others have vested interests in the gun industry (especially leaders of the NRA). But many do not; they just disagree with folks like me on the means of keeping the peace instead of allowing violence to prevail.

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(05-21-2017, 05:45 PM)Eric the Green Wrote: You call it the "Jim Crow interpretation" of the 2nd amendment, that says that the 2nd confers the right to bear arms on the militia. I call the Scalia ruling the "right-wing extremist third-turning-era interpretation" of it. The right-wing movement that currently rules our country and took power in 1980 is the most extreme faction in our country in history, save perhaps for the Dixie hotheads of the mid-19th century.

Both the "Jim Crow" and "Scalia" labels are emotionally loaded spin, perhaps pejoratives.  "Individual right," "collective right" and 'standard model' are more neutral terms, but those not long in the conversation might not know them.  I think 'Jim Crow' is an accurate and descriptive label.  There is no hint of the collective right theory until the end of Reconstruction, the beginning of Jim Crow.  The collective right theory began with the Jim Crow supreme courts.  At the same time they neutered the Second, they took out most of the Bill of Rights.  Familiarize yourself with the supreme course case load of Thurgood Marshall and the precedents and cases that he worked in the days leading up to Martin Luther King.  He restored the notion that individual have rights and it was the job of the federal government to protect these rights.

Of course, getting you to read something that conflicts with your world view is nigh on impossible.  You are too values locked in general to consider a point of view conflicting with your own.

Scalia did write a key decision that enforced the standard model.  The standard model was well established and mature in both the academic press and lesser court cases before Scalia wrote his decision.  You can give him more than his share of credit or blame if you like, and use liberal dislike for rule of law as a tool to push your values, but Scalia was a very small if highly visible part of the standard model legal and academic history.  He confirmed everything that those following the academic standard model discussion expected.  He did nothing that many academics and lower court judges hadn't been advocating for years.

The history seems clear that, although there had been debates for decades, the Supreme Court decision came about because the right-wing seized control of the country and put its man on the Supreme Court. The Heller would not have happened otherwise. The charming actor beat the malaise of the peanut farmer, and that's it.

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(05-21-2017, 05:45 PM)Eric the Green Wrote: I understand your analogy about the free speech amendment. Of course, it's just an example; it's not in the constitution. The 2nd is the only amendment, I believe, in the US constitution that has such a clause. So, it's significant.

The justification phrase was a common legal structure of the times.  Other than the Jim Crow interpretation of the 2nd, no one interprets  justification phrases as limitation phrases.  The result is so obviously counter the intent of the authors that it would be absurd to do so.  Is there any other right with a justification phrase that you would wish to interpret as a limitation phrase?

Again, if you are trying to honestly interpret a right with a justification phrase, you've got to work under the assumption that the writers of the right believed the justification true and accurate, and thus the interpretation of the implementation phrase must reflect the goals and methods of the justification.  In this case, the authors of the right believed a well armed and trained general populace was necessary for security.  A lot of people in an pretty large part of the country still agree with these revolutionary era values.  Interpreting the Second in conflict with these values requires blatant and obvious values lock.

Do you disagree with the answers to those three questions?

Congress can specify training for the militia, all males of military age.  They could require training and doctrine for good handling and storage of weapons, how to act in an emergency, and what is the chain of command.  It might not be an entirely bad idea.  I don't think the blue folk want to require everyone to train in weapons.  I have my suspicion that many red leaning people care more about protecting their rights than meeting their responsibilities.  There is something to be said, if not for a well regulated militia, but at least a mildly regulated militia.  Still, a lot of blue politicians and gun advocates are trying to continue the confusion about just who the militia is.  Training all adult males and calling them the militia could change perspectives.  Anyway, I doubt bringing back any real organization of the true militia, all adult males, will happen until and unless some threat arose that it would take an awful lot of people to resolve.

(05-21-2017, 05:45 PM)Eric the Green Wrote: I understand why the late 20th century 3T right-wing interpretation focuses on the 2nd clause. I would interpret it this way: since the militia refers to all men, and all men were whom the constitution applied to in those days, and only white men at that, the "people" and the "militia" were effectively the same thing, originally. So the right of the people to bear arms is subject to the regulations of a militia. Even the extremist right-wing Heller ruling allowed for gun control, perhaps partly for this reason.

The Heller decision was written to resolve the individual vs collective right aspect of the Second, not to resolve all aspects of the gun policy debate.  The Supremes are taking the standard model and 2nd Amendment (in) small chunks. 

A second question is whether the right effects the state's power to regulate guns.  The standard model (and all of Thurgood Marshall's mid 1900s cases) said yes, as did the Chicago 2nd Amendment case that followed shortly after Heller.

A third question is whether the right to keep and bear arms can be infringed.  Can magazine size, rate of fire and similar limitations be placed on guns?  The standard model suggests, that as the militia is mentioned in the justification phrase, the authors of the 2nd intended the keeping and bearing of state of the art military weapons.  A lot of people don't like that part of the standard model.  Heck, I don't really care for that part of the standard model.  I do see the scholarship as solid.  The founding fathers wanted a population armed and trained with military weapons. 

Anyway, Scalia put a few paragraphs into Heller that make it clear that while he was declaring the individual right, he was not endorsing the entire standard model.  There are questions unresolved.

I think the framers probably thought men (or at least enough of them) should be armed as part of the militia to protect the security of a free state. It has also been suggested that the 2nd was a means of arming slaveholders against slave rebellions (just the opposite of the Jim Crow accusation). In any case, the framers and their people did not have military weapons of the kind that were banned in my senator's bill in 1994, or the kind used in mass shootings since the ban was lifted.

Since the militia today is never called up, the 2nd is outdated. Folks like me think it was outdated almost from the start. We have the police and the national guard today, so we don't need the militia. I think police as we know them today were invented in England in the 1820s. So yes, the language of the 2nd is confusing and archaic. That's why strict originalism fails. Language and meaning changes, as do the conditions and needs of the country and its technology.