In both my updated post last night dealing with the spree shooting/mass murder in Kalamazoo and in Hillary’s post on it this morning several comments were made pertaining to the late Associate Justice Scalia and the majority opinion he wrote in Heller vs District of Columbia. Since we don’t have enough fun ripping into each other in the primary/campaign related posts, I figured we should embrace the bloodsport and carnage that is the Balloon Juice comment section and talk about the 2nd Amendment.
Jeffrey Toobin made a very interesting point in his commentary on the passing of Associate Justice Scalia: that he was so extreme that Chief Justice Rehnquist rarely assigned him opinions to write for fear of alienating Associate Justice O’Connor. And his first major (blockbuster) opinion was really Heller. While one can argue over whether the history of the 2nd Amendment as delineated by Associate Justice Scalia was accurate, it is important to keep the Heller decision in perspective and understand what it really did. Heller vs District of Columbia did find that there is an explicit, individual right to keep and bear arms in the 2nd Amendment. This was a major change. Prior to this the explicit right to keep and bear arms, as explained in United States vs Cruickshank; Presser vs Illinois; and United States vs Miller all found the explicit right to keep and bear arms only in conjunction with membership in/service in the well regulated militia. An implicit right to individually keep and bear arms could, and often was, teased out of these decisions, but it is in Heller that that right is found to be explicit. Moreover, the majority opinions in these three cases make it clear that the Federal, state, and/or local government may reasonably regulate firearms ownership, carry, and use. Such regulation has been going on since the establishment of the US. In fact the first Federal mandate, issue by President Washington himself, had to do with firearms.*
Associate Justice Scalia’s majority opinion in Heller did not remove the power to reasonably regulate firearms ownership, carry, and/or use from the Federal, state, and/or local governments. He explicitly affirmed it:
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
As a result there is nothing in the Heller decision that would have prevented Michigan from having stricter firearm laws.**
For good or for bad we are stuck with the 2nd Amendment. The only way to get rid of the actual amendment would be through one of the two delineated amendment processes. There is no chance of an amended 2nd Amendment getting through Congress, let alone being ratified by the requisite number of states. And calling for a (Constitutional) Convention of the States to amend the 2nd Amendment – either in part or to amend the Constitution to remove it from the Bill of Rights, is a terrible idea. The last time we had a Constitutional Convention, the guy who lobbied for it hijacked it. If you want to see the United States come undone really quickly, call a Constitutional Convention.
Where does that leave us? Even if the majority block on the Supreme Court shifts to left of center and a case that would allow Heller vs District of Columbia to be reconsidered were to come before it, the most that is likely to happen is that Heller would be overturned. This would return things to the pre Heller status quo: there is an implicit right for individuals to own a firearm and it can be reasonably regulated by the Federal, state, and/or local government. Since it is unlikely that any meaningful statutory law pertaining to firearms regulation will make it through Congress in the foreseeable future, this means that we will continue with the hodge podge of state by state by state differences. Some states have equivalents to the 2nd Amendment in their state constitutions that are older than the Federal 2nd Amendment, some are younger, and about ten have no explicit language at all. Some states have much stronger 2nd Amendment equivalent language than the Federal 2nd Amendment and some much weaker. In many ways if Heller were to be overturned we would be in just about the same place we are now. A place that seems to make almost no one in the US happy. Not those wanting greater regulations, nor those who think that no regulation is reasonable at all.
* Interestingly enough the second Federal mandate, made by President Madison – you know, the guy that actually wrote the Constitution – was a requirement for sea men to have the early 19th Century equivalent of health insurance.
** Michigan is a shall issue concealed carry state and also allows for open carry of firearms.
Mike J
Where did this bullshit you may also like thing come from? Has it been there for people too dumb to use an adblocker?
Urza
Sometimes I wonder if we couldn’t let the Confederate states go. Form a nice contiguous landmass from the northeast to California with our mostly sane neighbors to the north. Literally the only reason I couldn’t vote for it is because we’d have to split our nukes with the nutjobs and they’d be willing to use them. Can’t see to many other downsides.
Urza
@Mike J: I actually just turned my adblocker off to see how well my IP blocking of ad sites is working. Where on the site are you seeing the ‘also like’ stuff and whats on it?
JMG
As any economist of any ideology knows, if you want less of something, tax it. Taxes on firearms and ammunition would interfere with no right to bear arms, and would result in fewer firearms. The Constitution isn;’t the issue, it’s political will and the role of the gun fondlers in the Republican coalition.
Trentrunner
God, that’s all depressing and points up the importance of turning SCOTUS liberal after two generations of rightwing majorities.
a hip hop artist from Idaho (fka Bella Q)
@Mike J: Nah that’s a feature of the upgrade! Though for me it only appears sporadically.
Mary G
I wish we could get rid of guns, but I don’t think we will. Focusing on things like closing the holes in registration is probably the thing I concentrate on.
JPL
@Mary G: My hope is that they tax the heck for ammo.. They can keep their guns.
the Conster, la Citoyenne
@JMG:
My gun fondler (ex) friend would rip into me when I suggested that taxing the shit out of ammunition to make it a true luxury good would disadvantage his right to enjoy his sport. I would tell him that I love Laboutin shoes but can’t afford them, and that’s just the way life is sometimes.
a hip hop artist from Idaho (fka Bella Q)
Indeed Heller made the individual right to keep and bear
penis extensionsphallic reassurance devicesarms explicit, it is more of a semantic change in the holding than a practical change of the status quo. The right had been de facto in effect based on interpretation of the cases that precede Heller; it does mean, however that it will be next to impossible to unwind that specific right.But gun regulation will remain the province of state and local legislators. And that will be a hard slog given the large number of ammosexuals in the US. Says the junkie.
zzyzx
Speaking of the 2nd amendment, I went home from the store a little while ago and the roads were closed. This happened right around the corner from me. My wife and I heard the noise and joked about how we had no idea what it was. That’s an area we walk by all the time.
Bill E Pilgrim
The open thread is sort of stale so I’ll figure the “Politics” tag makes this one fitting:
The New Slatepublic headline, making me half-convinced they’re doing self-parody at this point, for your consideration:
My mind reels with sarcastic replies but I’ll settle for this: If that campaign was his idea of “not a joke”, then he needs to find out who sent him comedy writers as consultants instead of speechwriters because I think someone played a nasty practical joke on him.
Cacti
@Bill E Pilgrim:
Jeb Bush was a joke.
The national media owes Dubya an apology for labeling his little bro “the smart one”.
Adam L Silverman
@JMG: The concealed carry licensing and permitting in most states serves some of that purpose.
debbie
@JPL:
And also make them accountable should innocent bystanders be shot.
BBA
The 2nd Amendment crowd seems okay with the idea of banning felons from owning guns, and Scalia explicitly allowed it in Heller. I don’t see how this is constitutionally justifiable.
I’m dead serious about this. If you’ve served your sentence, you should have all your rights restored. The right to vote, certainly (allowing felon disfranchisement is the worst part of the 14th Amendment – it should have been restricted to Confederates only), and the right to bear arms as well. We don’t ban felons from attending the churches of their choice, writing newspaper columns, etc.
Now of course I understand the racial implications behind this, as well as the practical matter of not wanting to let someone with a history of violence own a gun. But I really think that if we as a country are going to take the 2nd Amendment seriously, we should take it all the way.
I know these views aren’t popular, but I have never courted popularity.
David ?Canadian Anchor Baby? Koch
Women’s Olympic Soccer (USA vs Canada) 10 PM NBC Sports Channel
It’s a very good rivalry match.
RSA
I’ve read a few of Scalia’s opinions in the past week, and they’ve brought me to the conclusion that originalism is mostly politically motivated hocus pocus.
oldster
I don’t mind guns in moderation, and I have some sympathy for the Akhil Amar line that bases some limited rights to bear and carry on a more general unenumerated right to self-defense.
What I hated, hated, about Heller was its incredibly dishonest scholarship, and its willful ignorance of 18th century history and linguistic usage.
The gun-fondlers who drove the case simply mis-represented central facts about how language was used in that era, and thus what the text of the 2A means. And they misrepresented what was at stake in putting an amendment like this into a federal or state constitution.
Bad history. Bad scholarship. And Scalia swallowed it all, because it produced the result he wanted. What a charlatan he was.
KG
Two thoughts. First:
There are days, not many but they do happen occasionally, when I wonder if this isn’t the end game.
Second:
Not necessarily. It depends on the make up of the Court and the underlying issues before it. It’s actually fairly rare for a Supreme Court decision to be overturned with a return to the status quo ante. More likely, a new standard would be devised – and without knowing who would be on the Court, what the law under question would be, and what the lower courts’ rulings were, you might as well as pick the winner of the 2035 NCAA national championship (any sport)
a hip hop artist from Idaho (fka Bella Q)
@a hip hop artist from Idaho (fka Bella Q): Tag close fail. FML.
KG
@RSA:
Since I really started reading Supreme Court decisions in law school, I’ve always been of the opinion that Scalia was the most results-oriented justice on the Court.
dave
Thanks for the post. So, maybe we should call a constituional convention, and maybe we should split up into the republic of texas and the alliance of oregon, washington, and northern california and all the rest. i’m not being facetous. the US is an empire, which bombs the world, treats its citizens badly, spins madly out of control creating green house gas emissions, consumes way more than it should, imprisons you… Would the splitting up of the USA allow blue states to act like social democracies? And the missisippi’s, can well, ok that looks horrible. But is it time to just admit that the US is not too big to fail, and that it doesn’t work as a democracy?
Tim C.
@RSA: I think it’s slightly more complex than that; I’ve heard from many lawyers in th family that Scalia started out fairly internally consistent in his decisions. But some time around the Clinton impeachment and Bush v. Gore he basically said “Fvck this, I’m letting my freak flag fly!” Stopped even pretending to have a philosiphy beyond hippie punching.
Adam L Silverman
@BBA: This is a significant issue. Along two different fronts. The first is that a significant amount of gun control legislation has always been targeted at African Americans. During the little debate there was over the 2nd Amendment a good chunk was over the Federal government’s ability to call out and federalize the militia. Many representatives of southern states were worried this would give the Federak government the ability to call up not just African American freedmen, but also slaves. And, of course, we have the Southern Jim Crow restrictions on African Americans owning firearms, as well as the modern gun control laws beginning in California after the Black Panthers freaked out the white establishment.
The other is involved with what rights should be restored to felons after they’ve served their sentences. And is there a difference between non-violent and violent felons?
Reasonable regulation is often in the eye of the beholder.
mike in dc
I’m still not clear on whether subsequent caselaw has established a standard of review for firearms restrictions.
Adam L Silverman
@RSA: I would not argue with that. Beginning in the 1960s there was a concerted effort by very specific groups to change the historiography, legal interpretation, and popular understanding of the 2nd Amendment. Associate Justice Scalia’s historical review is in line with this revisionist history. Read Associate Justice Steven’s dissent for a different history.
Wrb
I strongly support gun control (specifically making the carrying of guns in public, and engaging in the sort of menacing we just saw in Oregon). But meaningful federal regulation ain’t going to happen, and all its threat does it turn out republicans, convert democrats to the republican side, and give the Arsenal the congress. Oregon just passed a lame ass background check regulation about which advocates are puffed up, but which does nothing but puff up those who oppose restrictions. I can go to any bar in town and purchase a gun, no questions asked, within 15 minutes. If that is too much effort I can order one over the Internet and have it delivered to my door. The regulations that work are those that make you a criminal if you even carry one in the public realm. That is why gangs in the UK don’t pack: it ain’t worth the risk.
BillinGlendaleCA
@Cacti: When the campaign first started and I’d seen a speech by jeb?, I told the wife that I’d discovered some disturbing news; George W. Bush is the smart brother.
RSA
@KG: @Tim C.: @Adam L Silverman: Thanks for the better-informed opinions and pointers to elsewhere; it’s an interesting topic, for me.
Adam L Silverman
@Wrb: I’m guessing that your reference to buying guns in bars and home delivery of an Internet purchase are references to illegal gun sales/purchases?
Calouste
@Wrb: Standard sentence in the UK for unlawful possession of a firearm is 4 years IIRC.
fuckwit
@JMG: Five thousand dollars. For a bullet. Chris Rock nailed it decades ago. “I’d pop a cap in yo’ ass…. if I could afford it…”
Adam L Silverman
@RSA: Here’s a link to Associate Justice Stevens’ dissent:
https://supreme.justia.com/cases/federal/us/554/570/dissent.html
The Golux
@RSA:
Isn’t that jiggery-pokery? Or do you mean applesauce? I can never keep it straight.
a hip hop artist from Idaho (fka Bella Q)
@RSA: Ding ding ding, as raven would write.
@KG:
Also ding ding ding. Though I’ll skip mentioning when I started reading them with Scalia on the court.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): Huh? I sprung you from moderation, but don’t understand what the problem is beyond that.
Chyron HR
Now that Philip Seymour Hoffman’s epic hoax of pretending to be this “JEB Bush” person is over, he can reveal that he faked his death, right? Right?
Honus
Scalia demonstrated his hypocrisy with the Heller opinion. It is based on the idea that an individual has a right to own a firearm for self-defense. Yet the words “self defense” do not appear in the constitution, and the second amendment states a premise that has no relation to self defense. This right to own weapons for self is invented from whole cloth, moreso than the right to privacy justifying birth control, abortion and banning discrimination based on sexuality, which Scalia scathingly mocked. (the fourth amendment at least states an explicit right to privacy in banning unreasonable searches)
As far as taxing ammunition, that’s unnecessary. Simply remove the immunity from liability for gun dealers and owners that has become popular in ALEC drafted statutes passed by many states over the past few decades and make dealers and owners liable in the same manner as the owners and manufacturers of automobiles, explosives, swimming pools, livestock, pharmaceuticals, etc. The much vaunted free market will take care of the rest if firearms owners are held liable for the damage they cause.
Adam L Silverman
@David ?Canadian Anchor Baby? Koch: And the US rugby team is playing Chile right now on ESPN2.
a hip hop artist from Idaho (fka Bella Q)
@Adam L Silverman: I forgot to close the em tag after (the 2d mention of) Heller in post # 10. I was berating myself; I’m an idiot and a junkie.
Wrb
@Adam L Silverman: sure illegal, in the case of the ups deliveries, but an illegality that is not enforced, and will be completely ignored by those from whom the background check laws are trying to keep guns. There are those who are proud of flaunting the laws of the “oppressor” others who are unaware of them- “this is how we always did it… Can’t sell my gun when I need some cash, that’s crazy”. The individual to individual bar sale is perfectly legal in most cases, almost always if you claim it came from a relative (with no documentation who is to prove you wrong- once you have the gun you are cool, and if the seller never told you his name, so is he. uPS sales are also dead easy. They don’t require a verified I’d of the shipper, an the recipient can always claim this thing was sent to him by mistake. I know someone who “illegally” sent pot around the country for decades using this system.
Matt McIrvin
@dave: If the US split up, the mother of all refugee crises would be the next thing to happen, and the next thing after that would be the red states invading the blue ones to take their stuff, or getting into civil wars that would spill unto the neighbors, or turning into lawless failed states that would become havens for pirates and robbers. It’s impossible to just say “the hell with them” if they’re on the same continent.
dp
@JPL: That’s the Chris Rock solution — guns for everyone, but bullets cost $15,000. “I’d shoot you, but you aren’t worth it.”
Honus
@the Conster, la Citoyenne: exactly. You only have a “right” to enjoy a dangerous and expensive sport if you can afford it. That’s why I don’t have a formula one racing team, although I have every right to do so.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): Okay. I hope, from your legal perspective, I didn’t butcher the jurisprudential analysis too badly here. I’m familiar with it as a criminologist and political scientists who learned a lot of it when working on domestic US extremist movements. I’m particularly always amused about how Cruikshank actually defines what a well regulated militia is, including how it has to be under state control. Gives the lie to the ammo clad schmoes that keep starting their own.
Honus
@KG: I came to the same realization when I read scalia’s decisions in law school in 1993.
Adam L Silverman
@Wrb: Individual to individual sales are regulated at the state level. Depending on the state they may have to go through an FFL to conduct a background check. Washington state just passed one of these last year.
All firearms sales through the Internet, as in sales that require shipping the firearm to someone, are required to go through an FFL for the background check. Do some people ignore that? Sure. Is it illegal? Yes it is. Should they be prosecuted? Definitely.
magurakurin
@Urza:
It’s way too late for that, if there ever was a possibility. The red/blue map is misleading as the country isn’t segregated along clear geographical lines at all . The “purple map” and the green-hued purple map are far more revealing of the reality. Separating the United States would make the bloody and violent exodus of peoples from India to Pakistan/ Pakistan to India look like an elementary school’s red/blue color day sports event. There would be nothing left anywhere but smoking craters. Unease and tension filled co-existence is the only option.
Wrb
@Calouste: yep, that is what would work. I’ve spent considerable time studying the issue, and the effectiveness of approaches tried in different countries and ended up at: penalty for possession, or at least possession in the public realm.
Steve from Antioch
I think there is broader agreement about these matters than this suggests.
The vast majority of people favor reasonable regulation and most gun owners do, too. There is some quibble about what is “reasonable” but there is broad agreement about preventing felons and mentally unstable people from acquiring firearms, etc.
The problem arises when people attempt to use “regulation” as a means of a de facto ban – like taxing ammunition at exorbitant rates or limiting people to absurdly low levels of ammunition. Although these extremists are in a minority, the do, unfortunately, provide proof for gun owners who contend that regulations are just cover for elimination.
I wish there could be a grand bargain on firearms where there are careful restrictions on purchase/transfer and extensive safety training required in exchange for a moratorium on idiotic restrictions. I doubt this is politically possible.
Botsplainer
OT – watching Downton – Lady Mary is a total bitch. She should’ve been the one to slice her wrists.
Honus
@Adam L Silverman: except that CC licensing is a joke in my personal experience. I took an online exam of about 15 really simple questions, printed out a certificate, and submitted with my CC application to the county clerk. This is in Virginia. Whole there was a wait of a couple weeks for the clerk to issue the permit, the whole process took less than half an hour of actual effort and cost about fifty dollars. I really had to know next to nothing about guns, and had no safety training whatsoever, and now I can legally pack in about twenty states.
Wrb
@Adam L Silverman: they will just ignore them. Once you have the gun, who is to prove you didn’t get it from your grandpappy, or buy it on a trip to an unregulated state. Or found it in the woods. Such regulations only limit those who so bend over backwards to be upstanding that they pose little threat.
Pandemoniac
@Honus:
Agreed 100%. I was just directed to a LG&M post that included a link to an article by Richard Posner knocking Scalia for that very thing in Heller. In Scalia’s book Reading Law, he (Scalia) hangs his textual originalist hat on the reading of Preambles to discern the author’s intent then ignores the preamble to the 2nd Amendment that expressly concerns itself with Militias (and NOT self-defense).
The Incoherence of Antonin Scalia by Posner
Adam L Silverman
@Honus: It depends which state. Some are much more rigorous, some much less so. I can’t prove it, but I think the reason VA is so easy is because open carry is legal. So the reasoning is: people can open carry with no permit, so why make the permit for a CCW onerous.
moderateindy
I actually think that we are in a “cat is out of the bag” situation. We aren’t going to be able to do anything big picture. The overwhelming majority of gun owners pose no threat. I’m just not sure if any law is going to stop people that want to shoot at others, from doing so. Guns are so prevalent that trying to keep them out of the hands of dangerous people seems futile. It’s in the constitution, so there’s zero chance of passing legislation that will have a meaningful effect. I think it is one of those things you may not like, but you’re not going to change at this point in history, so you might want to expend your time and energy on something else. One encouraging trend for the future; more guns are being sold, but to fewer households. If that continues there might be hope for the country down the line.
Honus
@Tim C.: the clue is “stopped pretending”. He really never had any other philosophy, but for a while he felt compelled to conceal it.
Adam L Silverman
@David ?Canadian Anchor Baby? Koch: Why are the American Women’s team wearing day glow yellow socks?
Wrb
@Adam L Silverman:
Will the infentesimal chance of such a prosecution make a damn difference to someone besotted by a gun they spotted on the Internet? Hell no.
a hip hop artist from Idaho (fka Bella Q)
@Adam L Silverman: I think you analysis is correct. If the Court shifts leftward, and the appropriate case makes it through cert and Heller is overturned, we’re back to where we were. The right of ownership outside the context of a (Cruikshank) state militia, is not explicit, but since that context was routinely ignored, the status quo pre-Heller was not effectively different. And “effectively” does the heavy lifting in that statement.
As we know, however, the ammosexuals have their own con law scholarship, which bears no resemblance to that of actually educated (in law) con law scholars. The David Barton/Cleon Skousen correspondence course education carries the day with those fools.
debbie
@Botsplainer:
Violet would disagree.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): They have Glenn Harlan Reynolds!!!!
More importantly, because he’s not a punchline, they have Allan Gura.
Honus
@BBA: actually, the second amendment crowd has been quite active and adamant about felons that have served their time having their gun rights restored. They seem much less concerned about the right to vote.
Dr. Morpheus
Let’s take a page out of the right’s play book and start getting local and state to pass regulations for firearms and ammunition. The left needs an equivalent to ALEC. Soros doesn’t seem to want to bankroll much (RWNJ mythos to the contrary). So why don’t we fund left/liberal proactive organizations with grassroot donations? Like how Obama and Bernie funded their campaigns.
Zinsky
I have done a lot of research on the Second Amendment and wrote a lengthy paper on it in graduate school. Scalia’s tortured opinion in Heller is only operative if you ignore the prefatory clause, “A well-regulated militia,…”, which Fat Tony clearly did. The Framers chose their words carefully, and Scalia’s purposeful ignoring of the opening words of the amendment give lie to his claim that he was an advocate of “originalism”. Justice Stevens’ dissent in Heller, published here, is essential reading for anyone who wants to know more about the history of the Second Amendment and its precursors. Most people are also unaware that the Second Amendment was inserted in the Bill of Rights in order to persuade the representatives of the Southern states to sign on to the new Constitution to preserve the ‘slave patrols’, which were bands of armed white men who came together to put down slave uprisings and rebellions, since blacks outnumbered whites in many parts of the Deep South. Thus, this is an amendment drenched in blood and conceived to preserve the enslavement of other human beings. Very noble, indeed.
Botsplainer
@debbie:
And that’s that – Edith shafted by Mary, Mary marrying again.
a hip hop artist from Idaho (fka Bella Q)
@Adam L Silverman: Indeed, Gura is the problem in their scholarly lineup. I think he’s wrong – as do lots of higher level minds than mine – but unlike the rest of their band of scholars, he’s not a punchline.
The junkie sighs.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): Fine, I will start working on a post standoff update. Please stop sighing. I thought this was a bit more topical based on the day’s, so to speak, events.
debbie
@Botsplainer:
Now, now. Edith’s done her fair share of shafting too. The way Barnes writes, they’ll be chums by the end of the series.
Wrb
@Dr. Morpheus: that is what I think is the approach with the most potential. I’ve become convinced that on the national level, and at least in a western and southern states, anti gun efforts will only get Republicans elected. However there seems to be a clear minority market for those who want to live somewhere free of gun owners. So individual developments and communities might succeed by marketing themselves as gun restricted, and if they do, others will follow. Their doing so would only increase choice and freedom.
Steve from Antioch
@Wrb:
It would also assist criminals in knowing where to target.
jsrtheta
This is wrong on many, many levels. In fact, until the Court of Appeals decision in United States v. Emerson, no federal court of appeals decision held there was an individual right to own a firearm. And I’m talking many, many opinions. Nothing in the Second Amendment bequeaths such a right, nor was it ever intended to bequeath such a right. Scalia certainly tried to divine such a right, but he had to ignore the usual methods of reliance on history, legislative history and legislative intent to get there. Heller is in fact an example of just what abandonment of “original intent” can get you. He had a result he wanted, and he tortured a non-textual justification for it. I would suggest anyone wishing to understand this issue at the least consult Garry Wills’ excellent “To Keep and Bear Arms” in the New York Review of Books. I have written on this issue myself, but I defer to Wills’ piece as setting the standard.
The Second Amendment doesn’t have to be repealed (though it should be, having the same modern-day relevance as the Third Amendment). It merely needs to be correctly interpreted. Nothing in its history or drafting gave rise to an “individual right”. It was, quite simply, a states-rights sop to the anti-Federalists, and concerns control of the militia only.
Eric
@the Conster, la Citoyenne: https://m.youtube.com/watch?v=Db0Y4qIZ4PA
Omnes Omnibus
@debbie: Edith dropped dime on Mary about Mr. Peruke.
Honus
@Adam L Silverman: except that CC was a serious felony in Virginia forever before this. One of the first things I learned back in the 1970s was that if you were pulled over you took your gun out of the glove box and put it on the dash so it was plainly visible, because if it was in the glove box and the officer saw it when you went to get you registration, it was concealed, and you were really in trouble.
West Virginia was almost the opposite. Until about twenty years ago, it was technically illegal to have a handgun in a vehicle, even if it was locked up, to drive to the range to shoot. You couldn’t have a rifle or shotgun in a gun rack except in the daylight, and then only during hunting season. After dark, the rifle or shotgun had to be unloaded, broken down, and put out of sight in the trunk or behind the seat of a truck. A judge had to issue a permit for a handgun, and then only after an applicant had shown good cause (for instance a merchant or restaurant owner that had to carry a lot of cash after hours). Then West Virginia passed a CC law, and a judge refused to issue a permit, it was appealed to the Supreme Court and the approval was made non-discretionary, and the permit was issued by the sheriff instead of a circuit judge. I believe the licensing requirements are as lax as Virginia, a simple gun safety course that really doesn’t amount to anything. For example, while I personally know a number of people that have failed the required safety course and been denied a motorcycle license, I’ve never heard of anyone failing the gun safety course, or being denied a CC permit.
a hip hop artist from Idaho (fka Bella Q)
@Adam L Silverman: Oh no, no, no – it wasn’t a sigh in demand. I was sighing about the ammosexuals in general, and the reminder that they have an actual practicing attorney, Alan Gura, on their faculty.
And also that
I’m over it. ^
debbie
@Omnes Omnibus:
That’s why I’ve never liked Edith. I did like her father’s line that she couldn’t even get her dolls to listen to her.
Tim C.
@Honus: Oh, I agree completely. Though I think it’s possibly even sadder than that. Perhaps he really was convinced of his own superiority and really did believe in his dogma being internally logical. It’s just when his logic broke down… well… It’s like what happens to a lot of fundamentalists when reality intrudes. The good ones adjust to the real world and become better people. The wicked ones double down on insane cruelty.
Omnes Omnibus
@a hip hop artist from Idaho (fka Bella Q):
You lie!
/Joe Wilson
Omnes Omnibus
@debbie: I presume there was history between them prior to that.
Eric
I work with a gun nut who even my other pro-gun coworkers tend to avoid talking to about politics generally, and guns specifically. He maintains that the purpose of the Amendment is to allow individuals to keep the government in check (despite the part about the defense of a free state) and that militias can be groups of armed citizens organizing themselves (despite militia being defined elsewhere in the Constitution) He still hasn’t given me a definitive answer as to whether the Crips constitute a militia.
There are gradations of gun nut.
a hip hop artist from Idaho (fka Bella Q)
@Omnes Omnibus: Fair enough. More precisely,
as this post is much more topical, and it’s frustrating that there is an Ammosexual Online University faculty member who’s not a punchline. But junkies gotta want a fix.
@Eric: Clearly he’s a militia major. Guns are to defend against a tyrannical government. They’re the most adamant, and often the most alarming.
Adam L Silverman
@jsrtheta: I never wrote that they did. Moreover, I linked to four books: Adam Winkler’s Gunfight; Michael Waldman’s The Second Amendment: A Biography; and Saul Cornell’s A Well Regulated Militia and The Second Amendment on Trial that make that perfectly clear.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): Well too bad. I’m almost done with the verdammt thing!
Steve from Antioch
@Honus:
I don’t know what the “law” was in WV re these matters, but I can tell you that in the 1970s it was common for people to leave rifles and shotguns in racks in cars day and night year round.
The only reason people stopped was because they were concerned about guns being stolen from their trucks.
Adam L Silverman
@Honus: I’m tracking. All I know about VA is you can open carry without a permit and cc with one. And that the former was a longer standing right than the latter.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): The update is up in a nice new thread for you.
Honus
@Steve from Antioch: @Steve from Antioch: @Steve from Antioch: it was illegal but by the 1970s not enforced too strictly. I can tell you that it was fairly strictly enforced before that. When I was young, If we came out of the woods after hunting and it was near dark, the men in the party made sure to break the guns don and put them behind the truck seat. In the 1970s and 1980s, if I drove home to West Virginia during the summer and had my .22 in the gun rack in my truck, my father would always tell me to take it out of there so I wouldn’t get pulled over.
J R in WV
Concealed Carry laws were quite helpful in controlling who could have a firearm.
But now the ALEC republicans are working to destroy those regulations. In West Virginia, suddenly taken over by the Republicans, they have removed the whole structure of CCW permits, on the justification that Sheriffs charging citizens for the permit violates the 2nd amendment.
Now anyone can just get a gun and carry it around under their shirt or coat, or in a pocket, if its a small one. Crazy!
Adam L Silverman
@J R in WV: The holy grail of Constitutional Carry. Shall not be infringed means shall not be infringed! Can’t you people read?
Honus
@Adam L Silverman: You are correct. Open carry has been the law forever in Virginia. CC was considered a bigger danger for decades, and was strictly forbidden.
When I moved here in the early 1970s, I would occasionally see somebody with a gun on their hip and express surprise, and I was always told that packing was legal as long as it wasn’t concealed. If you wore a long coat, and it covered the gun, you could be arrested.
debbie
@Omnes Omnibus:
Edith and Mary have probably been at it since they were born. One family of my cousins includes three girls, all born close together, and they still snipe and take sides against each other, just like when they were little.
Adam L Silverman
@Honus: I remember reading that the view up through the 1960s/early 1970s was that honorable men/gentlemen open carried. Only those bent on doing wrong concealed their firearm. This was actually the NRAs position until the 1970s.
Honus
@Steve from Antioch: since you’re from Antioch, you may be confusing Ohio law with west Virginia law. We used to cross the river so we could ride our motorcycles without helmets, too.
Omnes Omnibus
@debbie: My mother was the pretty, clever, elder sister. Whenever my aunt posts family pictures on FaceBook, they are always pictures where my mother looks like crap. Always.
mclaren
Embrace the horror! GO AMERICA, NUMBER ONE!!!
Adam L Silverman
@mclaren: That’s the spirit!
NotMax
Is the implication that Madison “hijacked” the Annapolis Convention (calling for a convention to craft a constitution) or that John Adams “hijacked” The Philadelphia Convention which wrote (and passed) one?
Either way, extremely fuzzy history.
Steve from Antioch
@Honus:
Before I was from Antioch I was from Logan WV. We were allowed to bring our rifles or shotguns to junior high school so we could go squirrel hunting after school, provided we left the guns in the principal’s office during the day
Honus
@Adam L Silverman: before th open carry people went off the rails and started bringing their AR15s to the Kroger store, I used to sarcastically espouse that position. Why concealed carry when all the reasons you say you carry a handgun (deterrence, civility, etc.) are better served if it is plainly visible?
On another level, as a practical matter, I don’t see why a concealed carry permit is necessary. If you properly carry a concealed weapon, nobody should know you have it unless it is absolutely necessary.
Adam L Silverman
@NotMax: Its that Madison (edited from originally mistyping this as Adams) hijacked the Philadelphia Convention to produce something other, a Constitution that created a much stronger and central Federal government, than what was intended by those who called for the convention at Annapolis.
Adam L Silverman
@Honus: There’s a huge and ongoing debate on the various firearm sites about open versus concealed carry. Including whether the folks that feel the need to wander around with their rifles in low ready are really helping anything.
a hip hop artist from Idaho (fka Bella Q)
@Honus: If agencies permits actually screened for actual need or temperamental suitability to carry a concealed weapon they should be necessary. Since that’s not the case, the requirement is superfluous.
Some people have a very low threshold of absolute necessity of use. I’d kind of prefer they carry obviously so I can avoid them.
@Adam L Silverman:
I think they help make themselves look like fearful macho idiots.
PS – Thanks for the new thread.
Omnes Omnibus
@a hip hop artist from Idaho (fka Bella Q): Yes, I do think that there are people who do have a real need for concealed carry, but there should be damned strict conditions.
Honus
@Steve from Antioch:I think you’re probably a little younger than I am, but I agree that by the 70s it was pretty common for people to carry rifles in gun racks year round. Those laws were passed mostly to suppress the mine wars, after the battle of Blair Mountain, which you know about.
We used to drive over from New Martinsville to buy Ohio beer and play fast pitch softball in Antioch.
NotMax
@Adam L. Silverman
Do carry disagreement to that.
The main thrust behind calling for the meeting in Annapolis was to begin a process to create a constitution outlining a stronger federal government than did the Articles of Confederation.
Hamilton’s proposal in Philadelphia sought a much stronger and more centralized government than anything Adams might have offered.
The structure of the government approved can be laid more to Roger Sherman’s feet than to those of Adams.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): I had a conversation with one of my students my last year at USAWC. He’s a National Guard colonel from Texas. We were discussing someone who had been at one of these open carry demonstrations and explained that he needed to have his guns with him to protect his kids if he took them for ice cream. My student and I both agreed that what he really needed was to move to a better neighborhood or pick a better ice cream parlor.
Adam L Silverman
@NotMax: I’m talking about Madison, not Adams. I haven’t referred to Adams at all. Aw hell, now I see where the disconnect is. That first response of mine was supposed to be Madison. Not sure why I put Adams there. I definitely need to go lie down.
I’m going to correct it now.
Omnes Omnibus
@Adam L Silverman: Adams, Madison, meh. They were both short. Sorry, efg.
Adam L Silverman
@Omnes Omnibus: All those Founding Fathers look alike to me.
Honus
@Omnes Omnibus: and that’s what judges used to do in most jurisdictions. You had to convince a judge that you had a need and the ability to carry a handgun. The NRA and ALEC changed all that.
Omnes Omnibus
@Honus: I am in Wisconsin. I know.
a hip hop artist from Idaho (fka Bella Q)
@Adam L Silverman: But your obvious suggestions aside, how much protection could he actually provide his kids anywhere? Has he qualified with the firearm he carries, does he train routinely and requalify? And so on and so forth,
@Honus: The good old days.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): I have no idea. Some folks train a lot, some for self defense, some for competition, some for both. And some folks don’t train at all. That’s always the rub. When you back and read the Framers discussions, as sparse as they were, pertaining to the 2nd Amendment, almost all of it was about the militia and the need for them to be properly equipped and trained. Washington, especially, remembered just how poorly prepared the militia he inherited when he became Commander of the Continental Army and how difficult that made his job. The state level discussions of what protections there should be were often different. Some were very focused on a right for/to self defense. And in Pennsylvania, where this all came up during the ratification convention, there was a definite urban (Philadelphia/Eastern PA) versus rural (Pittsburgh/Western PA) divide.
Omnes Omnibus
@a hip hop artist from Idaho (fka Bella Q): Once upon a time, I qualified expert with .45 and 9mm and sharpshooter with M16. I am sure I have some muscle memory left. Last summer (25 years later and only some shotgun shooting in between), I was able to hit a coke can at 25 yards with a .22 rifle while teaching my nephew how to safely shoot. There is no way I should be let loose with a concealed weapon – and that’s leaving my character out of it.
a hip hop artist from Idaho (fka Bella Q)
@Omnes Omnibus: Several years ago, I walked (as I always did when court allowed) in the local LEO memorial walk. At the starting point, I ran into an Lt. I’d dated years earlier, who’d brought his approximately 4-year-old son to the walk. I was walking with my boss, and they ended up behind us. Kiddo, thinking I was an LEO asks “Daddy, where’s her gun?” to which his father replied “Sam, that last thing in the world that lady needs is a gun.” My boss chuckled and said “I know; we don’t even let her have sharp objects in the office.”
J R in WV
So when all this discussion started, someone, Adam? stated that many states have their own 2nd amendment in the state constitution. So I googled, and found a page with all the states’ reference to freedom to keep and bear arms.
Look where I found the data!
One thing that startled me was that many of the right to keep and bear arms stated specifically that the right did NOT include any right to bear a concealed weapon!
Loookie here:
Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
And here:
Kentucky: All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: … Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons. § 1 (enacted 1891).
Louisiana: The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. Art. I, § 11 (enacted 1974).
This is a little off topic, but Massachusetts said Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. Pt. 1, art. 17 (enacted 1780).
So no Army in MA without special permission !!
Mississippi: The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons. Art. III, § 12 (enacted 1890, art. 3, § 12).
Missouri: That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons. Art. I, § 23 (enacted 1945).
Montana: The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons. Art. II, § 12 (enacted 1889).
Well… I’m gonna stop here. Lots of other states ban concealed carry in their constitutions, and several ban a standing army, which was a little surprising.
Look up the whole list on the Volokh web site at ucla.edu, the link is up above.
Mrs J got a carry permit long before the “shall issue” law or rule. She got a death threat from a LEO stupid enough to put it on the answering machine. She played it for a judge, and he issued the permit right there. This was a very long time ago, and nothing came of it, although we both carried for a while.
My Grandma taught me to shoot a .22 rifle when I was very young, with my cousins. When Mrs J and I started seeing one another, she taught Mrs J too, said “I can’t believe [your grandma] didn’t teach you how to shoot!” Turned out my Grandma and Mrs J’s Grandma lived next door to each other back in the 1920s. Small world, huh?
Adam L Silverman
@J R in WV: Pennsylvania’s original recommendations to the Federal 2nd Amendment mirrored MA’s concerns over a standing army. And reading what each state does or does not include is itself quite interesting. Thanks for the post.
LAO
@Adam L Silverman: I really wonder about how effective weapons training is for the average citizen. My brother happens to be a federal agent and the one time he drew his weapon and fired he missed the bad guy (standing about 12 feet away) because of weapon focus. The guy was apparently holding the gun but would not drop it.
Although not killing the bad guy was a tremendous relief to my brother because the guy had serious psychological problems. He certainly did not want to kill anyone.
Adam L Silverman
@LAO: Its the problem with any training: you never know how you’ll actually respond until you have to.
Glad your brother’s response did not end badly for everyone.
Omnes Omnibus
@efgoldman: I have no interest in having him die. Kicking him in the ‘nads, however. I want him to see WI become again the state that it was. And then piss on his grave. Fucker.
I want him and his vision to lose, and I want him to see it.
Omnes Omnibus
@efgoldman: Also too, my condolences. I was not aware until tonight. Good thoughts headed to you and your family. I still stand by my short joke.
Adam L Silverman
@efgoldman: OT: just heard about what happened. My sincerest condolences and we’re keeping good thoughts for Mrs. efg and you and the rest of the family.
LAO
@Adam L Silverman: it did not stop me from laughing a little bit (I’m a sick person) because he was a member of an atf swat team at the time…but not to his face just with my other brother. I’m definitely going to hell.
Also thanks for the malheur update.
Adam L Silverman
@LAO: If everything turned out okay, its okay to laugh.
pluege
this is an ignorant, ridiculous statement. Sure overturning the cataclysmic, erroneous, immoral Heller decision – one of scalia’s hallmark stinks, would leave legislation about where it is today. But it is undeniable that the Heller abomination unleashed and emboldened the gun fetishists to brazenly threaten the safety of every person in the US by brandishing their fetish and pushing the limits (and frequently past the limits) of literal interpretation of laws and regulations. Overturning Heller would pull the rug out from under the NRA terrorists and give sane people the opportunity to constrain the insanity we currently are subject to at the hands of the gun nuts.