A US statute that defines ‘militia’ can serve as a precedent, no?
There is a hierarchy of meaning involved here, no? ( see below )
No, this is a matter of the over-arching principle of self-defense. To be secure in my person I have the God-given right to use violence to stop an aggressor. However, I cannot violate the rights of a uninvolved bystander to be secure in THEIR person in doing so.
No court, no population can deny me( you ) the right of security. It not theirs to grant, its not theirs to take away.
And while I am perfectly capable of firing a black powder powder musket ‘indiscriminately’ that does not make a black powder musket an indiscriminate weapon. Which is exactly the weapon that the Founders were intimately familiar with when they penned the 2d Amendment.
Similarly, I am capable of firing an automatic weapon ‘indiscriminately’. But that does not make an automatic weapon indiscriminate.
The overarching principle is that I ( you ) cannot be denied the right( and therefore the capability ) to defend yourself.
The definition of militia is irrelevant in the context of self-defense.
I didn’t say that was what Schenck was about, just that its reasoning still applies to Justice Holmes’ famous quote about shouting fire in a crowded theater:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [. . .] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Brandenberg’s reasoning would not apply in this situation because shouting ‘fire’ doesn’t incite anyone to do an illegal act.
It could if it preceded the second amendment. But it doesn’t. If tomorrow Congress decides to define ‘arms’ as muskets, does this new definition limit the second amendment to keeping and bearing muskets?
No, you don’t. I mean, forget about the fact that you don’t have “God-given” rights under the constitution (and does this mean that all the other countries that restrict firearms are godless nations?): you don’t have the same rights of self defense everywhere. In some places you must retreat before using deadly force, and pretty much everywhere the use of force must be proportional to the threat. In other places you do not. There is nothing universal or god-given about your right to self defense.
By this reasoning firearms and the entire second amendment is irrelevant in the context of self defense, as self defense is not limited to the use of arms, and if there is some fundamental right to self defense found elsewhere in the constitution then there is no need to cite the second amendment.
They were also familiar with indiscriminate weapons, and muskets were significantly less accurate than modern arms are. Guided munitions and bunker-busting nukes are pretty discriminate, too: does the second amendment cover them under your model?
Ok, I will go with that. Now I place the burden on you to explain, in light of the aforementioned Code, what ‘militia’ means.
Well, ok, that is, if we decide to let you choose the terms of debate…well then…let me think about it… ok, fuck it… I’m game.
This is a matter of degree, not a matter of principle. Keep in mind that I never asserted that the user of legitimate violence is beyond reproach.
Whether or not the consequences of one who sought to defend themselves falls on the aggressor or not is to be decided by the courts.
I emphasize the ‘elsewhere’ you refer to. The 2nd codifies the means of defense against unlawful aggressors as well as foreign invaders. An unarmed population is easy prey to both. One does not need a JD to see the wisdom in this.
No, I would regard both of these examples as indiscriminate as I, or anyone else for that matter, would be unable to target an individual aggressor with these weapons without consideration of the effects to bystanders.
Therefore, guided munitions and bunker buster nuclear weapons are not suitable self-defense weapons and are not protected by the 2nd.
10 USC 311 is completely irrelevant to the second amendment: it sheds no light on the meaning of ‘militia.’ Under Scalia’s opinion in Heller, however, the result is the same: ‘militia’ refers to “those who were male, able bodied, and within a certain age range.” However, the definition under Scalia’s opinion is also irrelevant, as his opinion establishes the second amendment right as not being limited to those in the militia.
I’m not choosing the terms of the debate when I say you have no God-given rights. The laws and constitution of the United States, and not the Bible, is the source of rights in the US. In fact, the first amendment has a thing or two to say about the separation of church and state.
The use of firearms for self-defense purposes is generally considered the use of deadly force.
There are lots of things that may be wise or self-evident but are not law. Your theory that the second amendment codifies the means of defense against “unlawful aggressors” appears to be a novel one, even if it makes perfect sense to you.
As opposed to un-rifled, inaccurate projectiles like muskets or shotguns? What about deadly weapons of self-defense not described in the second amendment? Can we use knives or bows and arrows, even though they are not codified as the means of defense in the second amendment?
I said something about the second amendment. You said you assumed I knew what the legal definition of ‘militia.’ My response was:
Your statutory definition of ‘militia’ has nothing to do with the second amendment, which is how my question was couched.
Given the context in which it was written, I think the second amendment was intended to ensure that it would be possible to organize widespread, popular armed resistance to a strong central government. Americans with muskets were able to successfully challenge the British in the American Revolutionary War with these kinds of arms. This is no longer a realistic possibility, and to a large extent I think the second amendment is as anachronistic as the third amendment’s prohibition on quartering soldiers in private residences.
Why do you get to say what acceptable levels of accuracy are? A guided munition may be more accurate in context A than a musket would be in context B. And yet you believe you are able to say what weapons are acceptably accurate and which are not, and further claim that this is the basis for what weapons are acceptable forms of self-defense. Why is the risk of a stray shotgun pellet more acceptable to impose on society than the prospect of a stray RPG fragment?
So what is the point of the second amendment, then? Why would it enumerate/codify only one of the many acceptably accurate forms of deadly self defense?
Here’s the big goddamn difference between those scenarios: In a war zone, journalists aren’t the source of the danger. At a gun range, the person giving an uzi to a nine-year-old clearly is the source of the danger.
Whoa—back up. The Second Amendment doesn’t mention firearms by name at all, it just says “arms.”
“Arms” could reasonably be interpreted as anything from a wooden club to a thermonuclear weapon. Second Amendment debates generally center around modern guns, but in colonial times weapons of war certainly included the blade (sword or bayonet) and the bow.
Thanks for the really interesting and civil discussion. What do you (and you, TrollsOpinion) think of the argument upthread that the 2nd was a concession given to the southern states to allow them to protect themselves against slave uprisings?
Hmmm… I would say that an explosion that creates a jet of molten metal capable of penetrating armor and the dispersal of high velocity fragments over a wide area caused by an RPG are a far cry from the hazard presented by a stray shotgun pellet. Regardless of how accurate either weapon is.
At typical ranges of engagement the spread of shot from a shotgun round is not that great and the terminal performance of shot mitigates the risk to bystanders.
Conclusion, a shotgun is a self-defense weapon, an RPG, not so much.
The 2nd protects the right of individuals to posses weapons.
It does not enumerate any weapons other than “arms”. It cites the preexisting right of the people posses arms and that this preexisting right cannot be infringed. The phrase ‘shall not be infringed’ is quite unambiguous.
The intent of the Second Amendment is not to guarantee the right to collect antique weapons or hunt. The right of self-defense and the absolution of guilt of one who causes injury to an aggressor while defending themselves were well established long before the second amendment.
You didn’t ask me, but I will tell you. I think it is revisionist bullshit. The traction this theory has gotten lately is nothing more than a ploy to some how equate “pro-gun” as also “pro-slavery”; to paint a group as racist by affiliation.
I am sure that the idea of wanting to be able to prevent slave revolts was in the minds of some Southerners, but the REASON for the 2nd Amendment was because they just got done overthrowing an oppressive government which tried to restrict their access to arms. Their new government was also in a very fragile state, and private arms would be needed several times in the next 50 years fighting Britain, Indians, and Mexico. Remember, unlike post WWII, America had a pretty modest standing peace time army. Private arms were pressed into service all the time, even during the Civil War. Rich people even bought canons which would be called upon to be used.
If you look at the context of the times, slavery uprising were much less of a threat than other foreign powers still in the area, hostile Indians, and the possibility of the new government itself being as bad as the King was.
And let us, just for a moment, pretend that slave revolts were a valid reason, that it was a concession to the Southern states. That doesn’t negate the other valid reasons for it.
Ironically, some of the “common sense gun laws” people have suggested or support keeping in place have their roots from racist Jim Crow laws. There are still areas where the Sheriff has to sign off on a pistol permit. Those laws were original made to make sure the “right” people were given permits. I think that shit still goes on today. I know two of my friends (one black, one Asian) who applied for CCW licenses, and both of them took the maximum wait time to receive them, and both for some reason didn’t receive a call when they were ready for pick up. I hope it was just inept bureaucracy.
Many anti-gun people like to characterize “good” guns and “bad” guns, which comes down to classism and racism. They aren’t threatened by the $5000+ engraved skeet shotgun like what President Obama was seen using, but the cheap hand gun they are. It has nothing to do with the gun - it has to do who is more likely to own that gun.
“Mr Vacca was standing next to the girl at the Last Stop outdoor shooting range in White Hills when she pulled the trigger of the Uzi with recoil sending the gun over her head”
Between this and your last comment, I am convinced someone has taken over your account. Finally something we can agree on! I was going to make the exact same point about slavery as well.
The only exception I’d make is that he is less of a victim than the girl because he has the ultimate choice over whether to teach a 9 year old or not. I can’t imagine the girl had personally requested to fire an uzi, so the parents are likely the most blameworthy party.
Thanks, and that makes sense. What about the argument that times have changed, we have replaced militias with standing armies (not something some of the Framers were enthusiastic about), and the whole militia things is so, I don’t know, 19th Century? If this has been covered in other comments, feel free to ignore me.
Again, why aren’t her parents the source of the danger when they are the ones who signed her up to shoot an Uzi and allowed her to do so? Why do you break the chain of causality so cleanly at the employee, especially when he is simply providing services that the child’s legal guardians have demanded?
And are you really arguing that it’s OK to insert yourself into dangerous situations so long as you’re not “the source of the danger”? I guess it’s OK to lie down in the middle of a busy highway so long as you didn’t give the cars to the drivers and thus aren’t the source of danger. Maybe you’ll say that someone who lies down in the highway is actually the one who creates danger to human life, but then I guess we can blame firefighters who are killed in burning buildings, since their decision to enter was the source of the danger to human life.
Fair enough. According to Scalia’s opinion in Heller, arms are weapons that can be wielded by hand and which are not primarily used by the military:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).
Regardless of how you interpret “Arms,” there is clearly a limit to what sort of weapons the second amendment allows. Whether you think that the limit should be at handguns, automatic weapons, RPGs, or somewhere else, there is clearly a limit. Why codify this limitation—wherever it may be—in the context of militias if there is a fundamental right to self defense? And if the limitation on what weapons can be used in self defense is based on their accuracy and spillover effects, then how does the second amendment reflect that limitation?
And I could argue that “A well regulated Militia, being necessary to the security of a free State” is also quite unambiguous. But the reality is that the second amendment is obviously rather ambiguous, given the way doctrine has shifted through time.
So what? The right to self defense was not limited to any weapon. Self defense with a canon would have been acceptable under the common law, and it still would be (you would still be liable under any laws regulating the use of canons, but it could still be a valid form of self defense). A more realistic example would be the use of a sawed-off shotgun in self-defence. For 70 years after Miller and before Heller, sawed-off shotguns were not protected under the second amendment, yet you could still assert a valid self-defense argument if you used one to defend yourself during that period.
And the hazard of an AK-47 round is a far cry from the hazard of a musket ball, regardless of how accurate either weapon is, but I doubt you think that’s a good reason to ban assault rifles.
Nor does the possibility of using a shotgun in self defense mean “a shotgun is a self-defense weapon.” You can use a fully-automatic weapon in self defense, yet bans on them remain constitutional. You can use an AK-47 in self-defense, but that’s not what they were designed for and that’s not what most of them are used for.
A shotgun or AK-47 aimed at an individual in a crowded nightclub is more dangerous than an RPG aimed at an individual alone in a desert. Heck, a baseball bat in a crowd may be more dangerous than a handgun used in the same situation. Self-defense doctrine can handle injury to third parties just fine, regardless of the accuracy and secondary effects of the weapon being used: there’s no real need to limit self-defense to any class of arms. No real need unless you think there are good policy reasons to restrict what weapons people have access to, even if it is possible for them to be used lawfully.
Presumably this is why the language of the second amendment reflects absolutely none of this intent, but instead speaks of militias.
