From my standpoint, at least two initiatives passed that are objectively bad.
1.) Proposition 2, the ban on gay marriage, passed in Texas:
Texans voted Tuesday to make same-sex marriages and civil unions unconstitutional.
The highly contested and controversial constitutional amendment defining a marriage in Texas as a union solely between one man and one woman passed by 76 percent, as of press time Tuesday.
Previously, gay marriages were outlawed in Texas, but the law granted judges discretion to allow civil unions.
“The passage of this amendment reaffirms the will of the mainstream Texans and protects the sanctity of marriage from activist judges who might seek to redefine it,” said state Sen. Todd Staples in a statement.
In the past, I was more sensitive towards the desires of those who wanted to protect the sanctity of marriage, and supported civil unions for homosexual marriage as a nice, convenient middle ground. After watching the Arkansas covenant marriage charade and the Republican behavior regarding the Schiavo marriage, I began to recognize the ‘sanctity of marriage’ crap for what it is- a load of divisive bullshit that employs the same biblical rhetoric used against blacks in the 50’s against gays today, in a clear and transparent attempt to create ‘in-groups’ and ‘out-groups’ for little more than partisan gain. You want to protect the sanctity of marriage- stay the hell out of people’s affairs.
The Instapundit notes that I am not the only one who had an epiphany during the Schiavo affair:
I also think that I may have been right in suggesting that the GOP had lost its mojo with the Terri Schiavo affair. Things seem to have started to go south then, not only because of the issue itself, but because of the divisive venom that so many Schiavo partisans aimed at people who disagreed with them. I think it was very damaging to the GOP coalition, and they’ve continued to pay a price.
I would be tickled, well, pink, if it turns out this ban on gay marriage unintentionally banned ALL marriages, as some are suggesting. I don’t know if it will or not, but it sure would be fun to watch if it does.
2.) The San Francisco Gun Ban- Not only does this ban the sale of weapons and ammunition, it makes ownership of existing werapons illegal:
With 100 percent of San Francisco precincts reporting on Wednesday, 58 percent of voters backed the proposed gun ban while 42 percent opposed it.
Measure H prohibits the manufacture and sale of all firearms and ammunition in the city, and make it illegal for residents to keep handguns in their homes or businesses.
Only two other major U.S. cities — Washington and Chicago — have implemented such sweeping handgun bans.
Neither of these measures is any good, IMHO.
Lines
Well, hopefully a Republican controlled Supreme Court will overturn the fiasco in San Fran.
As for Texas, the writing is on the wall around the country. Sooner or later a viable majority will support Gay Marriage and those states that passed such divisive laws will pay in neo-Conservative blood. Its too bad that Republicans couldn’t understand that keeping a controversy alive is more powerful than actually making a decisive law.
Jorge
How in heck is the San Fran statute ever going to stand up in court? It is obviously in complete contradiction to the 2nd amendment.
Shygetz
I think that the 2nd amendment has been interpreted in a very limited fashion by the SCOTUS, which is why the DC and Chicago bans have held. But I agree-both are bad laws, but neither really surprised me.
metalgrid
The SCOTUS sees A2 much like they see A9 – as an inkblot. Most of the progress we’ve had in striking down stupid gun bans have had to do with fighting them on a right to life and thus a right to self-defence grounds.
What worries me the most is that this nonsence about guns will start spreading to all the other major cities just like the smoking bans and force me to move out into some godawful rural town.
Krista
metalgrid – yes, heaven forbid that you should have to move out here and live amongst a bunch of gun-totin’ yahoos, right?
RonB
John, I just don’t see why churches should have to be party to something they clearly don’t support in the main.
I’m kinda federalist on this one-let the localities decide, if the government must weigh in on GM.
I’m open to any opinions that might change my mind.
pto892
One of the things that most people don’t know about the DC gun ban is that it really doesn’t ban all guns-just handguns which were grandfathered in from 1977. You can legally own a long gun in DC-as long as it’s registered, stored in a disassembled fashion and with all ammo locked up in a seperate container. Yea, I know-so what’s the difference? If you have to tell the bad guys to hold off for a few minutes while you reassemble your Mossberg than it’s a complete ban in all but name. The DC ban is bad law and is almost undoubtably unconstitutional, but has so far withstood all local efforts to overturn it. Congress has never seriously addressed the issue, and they could actually do something about it since under the Constitution DC is Congress’s to run as they see fit. Since the Congressional Republicans are now running scared they would rather try to investigate the Washington Post than to address this issue, so nothing will change.
Krista
Ron – the churches didn’t have to be party to it. As John said, judges were allowed to perform civil unions if they wanted. And I don’t see why people couldn’t have left that alone. Civil unions are increasingly common here in Canada — not just among gay couples. Many heteros who have no ties to a church, or who do not feel comfortable with religion (like me), prefer a civil union. It’s just as legal, and in the eyes of the law, you’re just as married as someone who got hitched in church. I don’t know…if the churches don’t like gays getting married, fine…they don’t have to perform the ceremonies. But why get their panties in a bunch over the very idea, and ruin it for people?
metalgrid
Huh where did that come from? The only place I’d actually move to if I were to move would be with the FSP (Free State Project), and from my visits to friends in NH, it’s quite annoying having to drive 10 minutes to the nearest store to get cream for my morning coffee.
I suggest you re-read my post – I actually like the gun totin folk (as long as they’re not cops or feds), I just don’t like living in rural areas due to the other inconveniences.
Jack Lindahl
After watching the Arkansas covenant marriage charade and the Republican behavior regarding the Schiavo marriage, I began to recognize the ‘sanctity of marriage’ crap for what it is – a load of divisive bullshit
And up to then you thought it was a valid political position?
Joey
Can we all just agree that the majority of people in Texas are crazy, and not in the “hahahahah, look at me I’m insane!” type of crazy, but more in the, “Wow that guy is really fuckin’ nuts, and we should stay the hell away from him” type of crazy?
Krista
metalgrid – sorry…I just took umbrage at having rural areas being referred to as “godawful.” Having a bit of a bad day, and feeling a bit prickly. Sorry again.
Geek, Esq.
The 2nd Amendment is read as conferring the ability to regulate guns to the states–it talks about local militias.
However, this gun ban will get overturned because it is pre-empted by California statute.
Bruce
Why exactly do people need to own HANDguns? A pistol’s only purpose IMO is to kill humans. If you want to shoot at targets, leave the gun at your gun club.
Steve S
I agree on both counts.
While I don’t like gun bans, and see no purpose in them. I haven’t seen any evidence to suggest crime goes up or down one way or another. It’s not the guns that is the problem, it’s the attitudes.
Stormy70
I voted against the amendment, since I actually don’t care if gays have civil unions or get married. However, the voters went against my wishes. These amendments pass in blue states as well with quite a few Democrats voting to ban gay marriage.
Judges are the ones who screwed the pooch on this one from the very beginning. It is the legislature that should make laws and not a handful of judges, and alot of anger was directed at judges and not gay people here in Texas. Like I said, I voted against it, but I have some friends who voted for the amendment based on their feelings towards judges. Message sending, if you will.
Stormy70
OH, and the guns? I am all for the second amendment and most of the women in my family all carry guns. You try being a woman driving at night in the middle of West Texas, or nothing between you and a rapist but a flimsy lock. Sorry, the gun ban is stupid. Guns tend to stop people trying to harm you, it’s a fact.
Ancient Purple
For goodness sake, can we STOP with this kind of asinine talking point?
There never has been (and never will be) any legislation or initiative passed that would require clergy to perform weddings. This is the same ridiculous reactionary BS spewed by Sen. Rick Santorum who says that if gays are allowed to marry, then they will want to marry their dogs next.
You cannot force members of the clergy to perform marriages. They are under no obligation to marry straight people and they won’t be under obligation to marry gay people.
Again, please STOP making this kind of crap up.
John S.
I love when people tout the Second Amendment, since it actually says:
To me (not a constitutional scholar), it seems fairly clear that the intent of this amendment isn’t to grant the common citizenry the right to bear arms for their own purposes, but rather defines the right with regard to the need to maintain a militia.
Since we do not have ‘militias’ in this country that are charged with the task of the ‘security of a free state’ (that task has long since been ceded to the armed forces), I don’t see that a strict constructionist can argue that this amendment is being used in the way that it was intended to.
The only way to parade the second amendment as some sort of gun-toting panacea is to ignore the entire first half.
Geek, Esq.
If you’re a 5’1 woman working in a rough neighborhood, a handgun is the only way in which you can exercise your fundamental right to self-defense.
Krista
Good lord, Stormy…how dangerous IS it where you live? (No snark intended.)
Perry Como
Erm, because HANDguns aren’t made to shoot targets. They are a means of self defense, e.g. designed to shoot people. For home self defense, I’d consider them pretty worthless. A 12 gauge with 00 buck is much better. But in situations where you may need a firearm on your person, a handgun is the best option.
Mike S
Maybe it’s to kill the humans before they kill you.
I believe in sensable gun control but an outright ban is absurd. Most of my friends that own guns, both hand and long, are good honest people with an understanding of the responsibility that comes with owning them.
I used to sell guns at a store on the outskirts of Compton. I dealt with gang members who bought ammo and tried to buy guns. But outlawing guns because of assholes like that is akin to outlawing alchohol because of the people who abuse it.
Slartibartfast
Why on earth would anyone possibly NEED free speech? Free speech is, IMO, only useful for whining, bitching and complaining. If you want to speak freely, do so at your local Elks lodge.
John S.
I believe the last time a political party found itself hijacked by religious elements they tried something like that.
I seem to recall it didn’t go so well.
John S.
So the right to freedom of expression is synonomous with the right to carry a weapon (this does seem to be the parallel you are making)?
Could you explain the rationale you have behind this theory?
KC
Man, I forgot about the gun ban. As a Californian and a former San Franciscan I can only say one thing: stupid. Other than that, it was a terrible night for the Governor.
Pat R
In case you’re curious, the Texas Amendment says:
(a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
The argument that this kills all marriage goes like this: Since acutal marriage is the only legal status “identical or similar to marriage,” and since the Texas Constitution now prohibits the “state or a political subdivision of [the] state” from creating or recognizing any legal status “identical or similar to marriage,” then the Texas Constitution now prohibit the recoginition of marriage.
Come to think of it, it would also preclude the creation of such a legal status — so it’ll take another (hopefully better drafted) constitutional amendment to fix the problem.
KC
Let me add, ironically, if it weren’t a special election about the Governor’s initiatives, that gun ban might have gone down in flames, even in SF. However, a lot of people who came out were coming out against the Governor. In SF, that means in some cases the most liberal of the liberal.
Defense Guy
John S
You should read this. It is a useful primer for the intention of the 2nd Amendment.
Pat R
But the judges we’re talking about – in places like Massachussetts – have decided that the statutes prohibiting same sex marriage were unconstitutional. Meaning that the legislation violated someone’s fundamental rights.
Argue with their logic, or their interpretation of their state’s constitution, but that is the check (of “and balances” fame) that the judicial branch brings to the table.
Or at least that’s the way we’ve been doing things since Marbury v. Madison.
neil
San Francisco is the only time I’ve ever seen anyone fire a handgun in anger. It was at someone across the street, too, and just when I happened to be driving by. Jesus.
I’ve read some compelling arguments that handguns are an abomination in a munitions sense, because of the twin factors that they are the hardest guns to aim and they are extensively marketed to people who don’t know how to shoot. Certainly, this measure would not prevent people from defending their homes or businesses with a shotgun. Am I missing something?
neil
rather, the only place. The time was, uh, 2002 or 2003, I think. At night in Lower Haight, for what it’s worth.
Slartibartfast
Basically, my message is this: failure to understand the utility of a right by some isn’t a particularly relevant or effective argument. I didn’t say anything about the similarity of such rights, I simply put some different ammunition (so to speak) in the original absurd argument.
Slartibartfast
Probably it would have been a good idea to say the above from the get-go, but I have this pull toward snarkiness that I sometimes give in to. It’s a flaw, I admit.
neil
By the way, where in the Second Amendment does it say the word ‘handgun’? I don’t see it in my copy but maybe it’s incomplete?
Geek, Esq.
Defense Guy:
If by “useful primer” you mean “NRA talking points” then you are correct.
jaime
This kind of attitude I don’t get. I am all for the right to own gun AND sensible restrictions. I understand the fascination with them. My buddy’s brother has a veritable arsenal and I love to play around with the .357’s and shotguns (unloaded). I get that.
What I don’t get is this preternatural fear of the worst case scenario. The, “I need to carry a gun with me because what if a gang member breaks in my house with an AK-47 and tries to kill me and my entire family” scenario or “every second I fear being raped or mugged” mentality. There are actual victims who may need it to feel safe again and there are people that live in a mass-paranoia.
I grew up in the South Bronx. I have lived in every kind of American landscape from the inner city to super-rural deep south and have never had the urge to own a gun. In the Bronx, carrying around a gun will more than likely escalate into having to use it and increasing the likelyhood of getting killed.
I know many here don’t like Michael Moore, but that cartoon in ‘Bowling for Columbine’ with the jittery suburban whites ready to pop off at anything that moves seems accurate when I listen to some of these pro-gun advocates.
Perry Como
Good link Defense Guy. Bookmarked.
Mike S
Even a short barrel Mossberg is a bit unwieldy in tight situations. Like a hallway. They are slower to bring to bear on your target and must be chambered after each round fired.
Defense Guy
If by NRA talking points you mean that they swiped them from the founders than yes, it is.
Do you have something you consider a better source for the intent of the 2nd?
feral1
As someone who is well left of the Democratic party on most issues, I have to say that the San Francisco gun ban is retarded. Focusing on guns is a distraction from dealing with the real (and very tough)social conditions that lead to the shamefully high violent crime rate in this country. Gun ownership is widespread in Canada and their per capita violent crime rate is a drop in the bucket comparede to ours. They are doing something right.
Also as a part of the Texas diaspora (hence my love of guns), the vote to ban gay marriages has left me more disappointed in my native state than any time since they elected Bush for governor over Ann Richards. That truly made me ill.
Defense Guy
jaime
The best analogy I have heard regarding possesion of a firearm is condoms. It is better to have one and not need it than need one and not have it.
neil
Even a short barrel Mossberg is a bit unwieldy in tight situations. Like a hallway. They are slower to bring to bear on your target…
Fine. But can we all agree that the Second Amendment does not say that you have a right to keep and bear the most efficient arms that are available? A Mossberg is better than a musket, and certainly better than no gun at all.
neil
Yikes, what a disastrous analogy. If I bought a condom and never had to use it, I’d be seriously upset.
Jake
The primary purpose of a pistol is not to kill someone, but to credibly threaten physical harm to someone as a means of modifying their behavior. Sometimes this is use to get them to give you their wallet, sometimes this is used to dissuade them from raping you. Naturally, pistols are more useful to those who can’t otherwise credibly threaten physical harm, such as women or the elderly. There’s a practical analogy to nuclear weapons, although the moral analogy isn’t as clear-cut.
As for San Francisco in particular, the city has a bit of a crime problem, but it’s really geographically distinct. The richer parts of the city are much safer than the country at large, while the poorer parts of the city are much worse. This, combined with an utterly dysfunctional police department, makes this gun ban seem to me like political grandstanding that will likely have more negative consequences than usual.
Hopefully it’ll get struck down post-haste.
Lines
Look, I’ve got around 8 guns and a concealed weapons permit. I still don’t carry it unless I’m in the backcountry. When hunting, many times you arn’t the only mammal doing the hunting in those areas. I’ve been stalked by packs of coyotees as well as puma’s. Having a short barrelled easily accessable weapon that fires multiple rounds can be the difference between survival or maiming and death. It can also provide a simple means of stopping the suffering of an animal.
But in the city? I never have one on me, sorry. Humans don’t need shooting, they usually just need a good beating.
Geek, Esq.
Oh, I don’t know. How about actual court decisions instead of the Libertarian Party’s wishful thinking.
I’ll just take one example:
Complete, unrefined, 200 proof horseshit.
Otto Man
Try this.
Stormy70
I have a family member who’s home was broken into and she was raped for several hours. She now owns a shotgun and she has my grandmother’s gun. She lived in a regular neighborhood and the attacker was a coworker. A gun would have been of great assistance in this situation. For women, rape is a constant fear when living or staying alone.
I wonder how the Pink Pistols are feeling about now. They are my favorite gun group. Their slogun is “Pink on someone your own caliber.”
Defense Guy
Geek
You are mixing up intent of the founders, with what is current practice. They are not always the same.
So, again, do you have a better source that speaks to the intent of the authors?
RonB
Well, I’m not that out there on it, so grab a paper bag and stop hyperventilating. You’re right, but I just wonder what a public spectacle might be made if churches are suddenly under fire for discrimination. I would just want to ensure that the churches were insulated from political or legal penalty. As I said, I am willing to change my mind.
Geek, Esq.
Yes. All 200 years of jurisprudence in the United States of America.
Davebo
Gearing up for the 2006 elections here in Texas.
Is there anyway we can possibly prevent a constitutional ammendment to outlaw the possession of firearms by gay couples?
jaime
Stormy,
I understand that situation. But isn’t that the exception? Won’t the overwhelming majority of people go through life without ever getting mugged or raped? There is fear and there is irrational fear.
Slide
I agree with John on both issues completely and I don’t often get to say that.
Stormy70
Pick not Pink. Sheesh, back to work.
Defense Guy
Otto Man
Thanks. However, I think, and being able to rely only on the description of the book, that the authors are putting to much emphasis on the idea that the militia is a state organization, which it isn’t.
A history of the language and the amendment
CaseyL
I used to be an anti-gun nut; now I’m a gun-owner. But I forget I have the thing half the time. I certainly don’t clutch it to my bosom every time I leave the sanctity of my home.
In any case, I remember why I used to be an anti-gun nut, so I still understand that viewpoint. I just don’t share it anymore. I had no magical revelations – unless you count a boyfriend whom I not only adored, but whose basic values and judgment I trusted implicitly. We discussed the gun issue rationally and respectfully; he taught me how to shoot; I realized most of the reason I hated guns was that I knew very little about them.
Now I’m very ready to willing to toss the anti-gun plank over the side, as it doesn’t cause anything but trouble for Democrats, and gives little of value back.
Defense Guy
A dodge. OK, I won’t ask again.
Krista
I think it must really depends on where you live and what your own experiences are. I lived alone for many years, in the middle of a city. There were a few odd times that I’d investigate strange noises, 5-iron in hand, but I really wouldn’t say that it was a constant fear by any stretch of the imagination. And I never considered the idea of getting a gun. I agree that there have been cases where having a gun has saved a woman from a horrible incident, but is the solution to have us armed at all times? I just can’t see anything good coming out of having all US citizens jumpy and armed.
Otto Man
DG, I think I’d side with the historians and legal experts over a Wikipedia entry. Those things can be edited by anyone and shouldn’t be considered authoritative in my view.
Mac Buckets
Take a more lofted club.
Mike S
I don’t know. I think a putter is easier to swing and since it’s a 90 degree angle it can penatrate a head that much easier.
Defense Guy
Otto
I hear you regarding Wikipedia, and only linked to it for what I thought was a fairly straightforwared discussion on the 2 opposing views and the language itself. It also has a lot of quotes from the ‘legal experts’ who gave us the Constitution.
I can give you many sources from ‘legal experts’ and historians that support my view, just as you could do the same.
Here are 2
The US Senate
A UCLA law prof
Krista
Duly noted…sand wedge it is. Mind you, I no longer live alone, I have a dog, and I also have several decorative swords, so I suppose I’ll have to use the golf clubs for their original purpose — wrapping them around trees when my short game flies all to hell.
Veeshir
It’s really pretty funny. The first set of amendments (ratified in 1791) give rights to the people, except the second.
I never could figure that one out.
Geek, Esq.
Not a dodge. There is NOTHING in the history of US jurisprudence that suggests that states have no ability to regulate fire arm ownership.
John S.
Defense Guy-
Thanks for the link to wikipedia on the second amendment. Perhaps you neglected to peruse the following excerpts from it:
So forgive me for doubting your sincerity in pointing me to your “correct” interpretation of the Individual Right Model when I happen to subscribe to the Collective Right Model. I believe George Mason spoke in defense of the latter:
It also seems that John Adams felt similarly:
And while there is certainly evidence there that supports your interpretation, given the fact that the matter can be viewed from two entirely different perspectives – neither of which can easily be disproved – it is patently dishonest for you to imply that your interpretation is more correct than mine.
Defense Guy
Nor did I say there was, however that was NOT my question, but if you wish to continue to answer a question that wasn’t asked instead of the one that was, as you seem inclined to do, who can stop you?
Or perhaps you are just inclined to believe that all of American jurisprudance somehow speaks to the intent of the founders, just because.
SeesThroughIt
Guns also tend to help people harm you, it’s a fact. Just sayin’. That argument cuts both ways, which is why I’m always a bit confused when the NRA’s reaction to a school shooting is, “If only the teacher had had a gun–all of this could’ve been avoided!” The NRA: Advocating for shootouts in schools.
While I’m not too keen on the idea of walking streets where everyone’s packin’ heat, I do think this ban likely won’t last very long. As for the Texas vote…whaddya expect? Hatin’ them queer folk is practically a cornerstone of the state charter.
Geek, Esq.
If there is no support for a proposition in the entirety of US jurisprudence, it may safely be dismissed as a crackpot notion.
Otto Man
I didn’t mean to imply you couldn’t do the same, I was just dismissing Wikipedia.
There’s valid disagreement on the origins of the 2nd Amendment. But surely you can do better than a report from Strom Thurmond’s Senate committee and the opinions of Eugene Volokh.
Personally, I’m swayed by the arguments that the 2nd must be understood in the context of the Revolution, especially in terms of its joint relationship with the 3rd — the people needed guns to form militias, and the state couldn’t house troops in their homes. It sets up an understanding of gun rights that’s predicated on the need to mobilize citizens in defense of the collective state, not in defense of their own turf.
Also, in terms of original intent, I’m also swayed by the argument that the 2nd’s opening clause — “A well-regulated militia…” — lends itself to the claim that Congress and/or the state governments should have the power to limit gun ownership and that right is not absolute. (Contrast that with the 1st’s claim that “Congress shall make no law…” and the fact that Congress has, in fact, made plenty of laws restricting free speech and the free exercise of religion.) I’m not for the abolition of gun ownership by any means, but I think the NRA’s campaign against even the most sensible forms of gun registration and protection measures is ridiculous.
Defense Guy
John S
I can imply that my interpretation has more merit, and it is MORE honest for me to show both competing schools of thought rather than just cherrypick the one I want. Which is also why I asked Geek to throw me a link to the best argument for the other.
Of course, the SF law isn’t regulation, as has been pointed out as being legal even in the face of the 2nd, it’s a ban.
George Mason, father of the Bill of Rights.
Also, The Adams quote while speaking of the danger of an armed populace, states clearly that it is the duty of the militia to preserve the laws.
Ancient Purple
No public spectacle would be made. Anyone who demanded that a church marry them (or be made allowed to use the church facilities) would be a laughing stock. I have yet to see a single occurance where anyone in the pro-gay marriage debate has said that churches that won’t marry gays are guilty of discrimination.
The Catholic Church does not allow Protestants and Jews to be married in its churches, but you don’t see lawsuits or cries of “discrimination” because of that. The same will hold true vis-a-vis gay marriage.
Defense Guy
Yes, but fortunately for us, there are legal decisions that support the idea of the 2nd as meaning the people have a right to bear arms. Miller is a good example of a decision that proponents of both schools of thought use as ‘proof’ of their view. I happen to believe it supports the individual right more, because the court did not rule, nor to my knowledge ever has, that Miller could not be constituted as part of the militia. It did however rule on a specific firearms unsuitability as a weapon that would be legitimately used by the militia.
John S.
Defense Guy-
I make no claim about the SF law. I personally think it is asinine and will not be effective in any way.
It seemed like you were cherrypicking. I certainly wasn’t cherrypicking, since I made it clear that:
While I can accept that your interpretation is valid, I don’t think it does have more merit since both your Mason quote and reference to Adams contain reference to a militia. If the intent of the second amendment was simply to arm individuals, you wouldn’t find almost every reference to it by our founders containing the term militia – which I happen to think points to the original intent.
I wonder, can you find a single reference to the right to bear arms by the framers that DOESN’T discuss it in terms of a militia?
Defense Guy
I’m not sure I would make the claim that there is much difference between ‘Congress shall make no law’ and the ‘right of the people…shall not be infringed’.
Defense Guy
John S
You are right to focus on the word militia, as that is where most of the disagreement comes from. Which means it is important to know what was meant by the term militia when it was written. According to the one that brung it, it is the ‘whole of the people, minus a few public officers.’
If you can find something that clearly refutes that notion, then I’d like to read it.
Otto Man
One has the added “well-regulated” caveat and one doesn’t. Seems like an important difference to me.
Lines
The only reasoning I can possibly come up with for the new SF law is that far leftist liberal elements decided that in the time between passing the law and the eventual overturn by either the state Supreme Court or the the Federal Supreme court will reduce the amount of guns held by legal citizens (and I mean legal as in they don’t commit armed crimes). This is sort of a temporary chill, but once you give up your gun, you may not be so excited to go buy another.
Of course, maybe they just never really expected it to pass, either
Defense Guy
Of course, the meaning of ‘well regulated’ in the 2nd was not the same when it was written as it is today. However, if you are just refering to the idea that the militia is not meant to mean everyone, I would invite you to find something that supports that notion from the founders themselves, and please show me.
Robert Chavez
The only court decisions that matter in 2nd Amendment jurisprudence is SCOTUS’. And given that they have, in 200 years of jurisprudence, one decision, says to me that they know what they think of 2nd amendment jurisprudence, and aren’t inclined to pick up other interpretations.
Ergo, I disagree with the argument that respected jurists disagree on the true meaning. The fact that SCOTUS has not seen fit to revisit the one and only decision regarding the 2nd amendment and clarify or expand it is proof enough of that fact. The true meaning is out there, it’s just that many people refuse to accept it.
As for gay marriage, I look at it this way:
Either marriage is a religious institution or a state institution. If it’s a religious institution, under the 1st amendment, the government, the people, the legislatures and the judiciary have no right to interpret what is a proper marriage and what isn’t. Likewise, there should be no legal benefits to marriage, and the government shouldn’t even recognize it. And when a church decides that they want to perform gay marraiges, no other church or branch of government can do anything about it.
On the other hand, if marriage is a state institution, then by denying it to a certain class of citizens, they’re in violation of the 5th and 14th amendments. Pure and simple.
It’s time for the government to decide what type of institution it is, and quit entangling themselves with religion.
Defense Guy
For the record, I think Texas went to far in banning same-sex civil unions. I do, however, think it is a question for the states, I just don’t happen to agree with this outcome.
Otto Man
This is your game. Feel free to provide evidence that the militia was meant to mean everybody. Personally, I suspect that free and unfree blacks weren’t part of the equation, and neither were women.
John S.
Well, there is this discussion of the term militia back over on wikipedia. While it certainly accepts the entire citizenry as a valid definition that would affirm your interpretation of Mason’s quote, there is a caveat:
So in terms of this definition, it would appear as if defining the citizenry as ‘militia’ only applies for the purposes of defense against foreign invasion (think Switzerland). Personally, I don’t think the majority of gun ownership in this country is intended for that specific purpose (unless they have been watching Red Dawn).
Then there is this from Joseph Story:
Seeing as how we actively engage in the use of the latter (standing army) that Story urges against, it would seem that the presence of the former (militia) becomes entirely irrelevant. I gather this from the fact that Story seems to be making a dichotomy between the two.
And on the subject of the distinction between a militia and an army, I found this interesting quote by Elbridge Gerry:
Is Gerry correct? Since the United States has clearly abolished any sort of active militia and raised an army on its ruins, does that mean that the intention in doing so was to invade the rights and liberties of the people?
slightlybad
George Washington: “Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence.”
Federalist No. 46, Hamilton said, “The best we can hope for concerning the people at large is that they be properly armed.”
The current U.S. code section defining the militia:
§ 311. Militia: composition and classes
Release date: 2005-07-12
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
That will be all.
John S.
You suspect correctly. The 1792 Uniform Militia Act states as much:
Source
slightlybad
Oh yeah, and it’s instructive to note that some of the first gun control laws in the country were instituted in the Reconstruction-era South (I believe S. Carolina was the first state to do so). ‘Cause God help us if those crazy nigras get guns.
Actually, that’s really not too different from the attitude of gun control folk today.
Defense Guy
Since NRA talking points was brought up earlier, this will fit in neatly as an addendum to slightlybad correct statement regarding the first ‘regulations’ being designed to keep firearms out of the hands of black people.
Defense Guy
I think he is correct in asserting that disarming the people is a first step towards tyranny.
I don’t agree that the US has ‘clearly abolished’ any sort of ‘active militia’, and the law backs me up on this. It even describes who the militia is.
However, in a Democratic society such as ours, we have at our disposal the means to overrule the 2nd, through the amendment process. I don’t see it happening anytime soon, if ever.
Thanks for the info.
JonBuck
An interesting fact about the voter turnout in Texas: A paltry 16%. How is that democracy?
John S.
I don’t think that is what he was asserting. I think he clearly stated that replacing the milita with a standing army was a step towards tyranny. I think there is a substantial difference.
You were limiting the discussion to the intent of the founders, and I was attempting to comply. Now you want to open it up to modern definitions (as provided above)? The militia as the Americans of the late eighteenth century knew it was replaced by a standing army. But if you want to insist that the law backs you up with a description of what a militia is, then you just answered yourself:
(And I purposely ommitted your caveat of the ‘founding fathers’ intent due to your willingness to expand the parameters of the discussion.)
Because this is what the law that backs you up says in regards to a militia:
Which is to say that it does NOT include everybody.
slightlybad
John S., I think you better read that again. The ORGANIZED militia consists of able bodied male citizens between 17-45. It also consists of women who are members of the national guard. The unorganized militia consists of everyone in the militia who is not in the national guard.
a guy called larry
God, I hope not.
DG, I am pretty much with you up to that point. Saying “the FF didn’t mean that, of course, they meant this” just doesn’t make it. And the militia’s varying definitions could be viewed as limiting one who doesn’t fit. I’m for the 2nd, but against fluid terms.
It was that sage Jello Biafra who said “for every prohibition you create you also create an underground.” That goes for guns, gay marriage, whatever.
A couple of days ago, Fred Clark over at Slacktivist had an excellent piece about the possible motivations of the defense of marriage crowd. I recommend it to all.
Steve S
First time I ever considered buying a gun was last year, when I realized that GW Bush may win a second term.
I agree with Defense Guy.
Sojourner
Nope. It’s a constitutional issue – equal protection under the law. The judges should make sure that gays have the same rights under the law as gays. It’s not a legislative matter.
Defense Guy
John S
Story is not one of the founders
while Gerry is.
The problem is that the standing army never replaced the militia, not then and not now.
John S.
No, slightlybad, I do not need to read it again. On the matter of what the intent of the founders was by including the term ‘well regulated militia’ (whose sole purpose is to defend the security of a free state), I think it is obvious that what they didn’t have in mind was unorganized militia.
Therefore, your point is entirely irrelevant to the nature of the discussion.
John S.
Defense Guy-
Story may not have been a founder, but he certainly was close enough to that era and in a much better position to posit on what the intentions were of the founders – many of whom were alive during his lifetime and who wrote and spoke in a way more familiar.
But I think it is a minor point. The bottom line is that as far as I can tell, the concept of a militia relative to the Revolutionary war era was that body which was responsible for the defense of America. In 1776, that task lay with the average citizens. In 2005, that task rests squarely on the shoulders of the armed forces, and while they are comprised of civilians, while in service they are referred to as otherwise (and incidentally refer only to non-military personnel as civilian).
But I feel we are at an impasse, and I think we will just have to agree to disagree.
Defense Guy
It would take a constitutional amendment for this to be true, something that overrides the 2nd.
I do agree we are at an impasse, and am fine with agreeing to disagree. I appreciate your effort in supplying me with sources to support your argument.
slightlybad
Oh, you want quotes about what the Founders thought the militia was (hint: it was every free citizen):
[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
—Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms…
— Samuel Adams, in “Phila. Independent Gazetteer”, August 20, 1789
The great object is, that every man be armed. […] Every one who is able may have a gun.”
— Patrick Henry, speech of June 14 1788
Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
-Tench Coxe, 20 Feb 1788
p.lukasiak
I say we return to the intent of the founders, and let everyone have guns….and while we are at it, withdrawal all american troops from foreign soil and disband the army and rely solely on the “militias” for defense unless we are attacked by a foreign power — at which point we will federalize the militias.
Kirk Spencer
Defense Guy (and others), While I understand the urge to make the decisions regarding gay marriage be state only decisions, the urge is doomed. Regardless of the decision, it will be a national issue when a couple, legally wed in one state, move to another state and become denied right and benefits legally associated with spousal relations.
Here’s an ugly example. Joe and Sam get married in Massachussets. Sam owns a large and expensive property in Texas. His sole sibling, Pete, happens to live in Texas as well. Sam dies, and as is typical of an unfortunately large number of people he has no will. Pete brings suit in Texas probate court to receive the Texas property, arguing that since Sam and Joe’s marriage is not legal in Texas the “normal” distribution of the estate to the spouse doesn’t apply.
It’s going to fail because of Art 1 Sec 9 of the US Constitution: “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.” Yep, that much-abused commerce clause. But unlike some abuses, transfer of property across state lines falls under its purview.
StupidityRules
Ok, what part of the 2nd amendment doesn’t give me the right to keep my own tactical nukes for my protection?
There might be a lot of people invading my land in the future. I don’t think even I will be able to kill the all just with my rifles.
John S.
No problem. I’ve decided to treat posters here in a manner in accordance with the way I expect to be treated, and hold them to the same standards I would hold myself to.
Thank you for the amicable discussion.
John S.
slightlybad-
Thanks for posting some of the usual list of quotes that appear on gun lovers websites, including this one (which I think includes all of the ones you posted).
Too bad many – if not all – of these hinge upon the concept of what the militia is (Hint: That is still a matter of dispute).
Ben
kirkspencer says ”
It’s going to fail because of Art 1 Sec 9 of the US Constitution: “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.” Yep, that much-abused commerce clause. But unlike some abuses, transfer of property across state lines falls under its purview.”
Because of the Full Faith and Credit Clause of Article IV of the U. S. Constitution**, same-sex marriages performed in Massachusetts would have to be honored in other states unless they have enacted a so-called “defense of marriage act,” as most other states have, either by statute or state constitutional amendment.
You should quit getting your information at sunday school… the misinformation being handed out by the JF’s in Texas is stunning.
That is not true…
mazzy
Defense Guy:
I may be late to the party, but I had to research this very topic for work recently. Here’s a recent source exploring the Founding Fathers intentions, concluding that they supported a collective rights interpretation of the Second Amendment:
Robert J. Spitzer, “Origins,” The Right to Bear Arms: Rights and Liberties under the Law, 2001.
There are others, of course, which I’m sure you know about. And of course, you know that over the years, courts have consistently reaffirmed the collective rights interpretation over the individual rights interpretation. The exception was the Emerson case (2001). The ruling was confusing, leaving both sides feeling that they had been validated; even the Department of Justice gave conflicting views of the Second Amendment. In arguing the government’s case in Emerson, the DOJ contended that it is “well settled” that the Second Amendment creates a right held by the states and does not protect an individual right to bear arms. Attorney General John Ashcroft sent a letter to the National Rifle Association that stated his unequivocal support for the individual rights position.
And of course you know the Silveria decision by the 9th Circuit in 2002, which completely reaffirmed the collective rights interpretation and is the bane of every gun rights supporter everywhere.
John S.
Mazzy-
Thanks for the input. Better late than never, eh?
Sine.Qua.Non
What’s depressing, other than the failure to eradicate this stupid prejudicial damned constitutional amendment, is that I had this story on 24 October: Texas 79th Legislature: Invalidating All Marriage
StupidityRules
So no one can tell me what in the 2nd amendment makes a hand gun ban unconstitutional but won’t allow me to own my own tactical nukes?
Jake
Why doesn’t the First Amendment protect libel and slander?
Jake
Criminal libel, that is. Civil libel is different. But also see “yelling Fire! in a crowded theater”, But it also doesn’t protect revealing classified information, as evidenced by the IIPA.
Less sarcastically, there are reasonable definitions of “arms” that include handguns but do not include nuclear weapons, but there are far fewer – some would say none – that don’t include handguns.
Regardless, Proposition H is pretty clearly in violation of CA law, might have equal protection issues, and appears to have a huge hole in that there’s no exception to the “illegal to transfer or distribute firearms” clause for peace officers like there is for the “possess handguns” one.
StupidityRules
What if I would invent a handgun with nuclear bullets? Might not have the punch of the Enola Gay bomb but I could probably use it to stop a large number of people invading my land. I don’t recall the Founding Fathers specifying what kind of bullets are allowed. Maybe I’ll settle for bullets made of deplated uranium.
Even so, would a 18th century milita be allowed to have cannons? It would be hard to fight against other forces if you only were allowed to use handguns and rifles. Am I allowed the right to own my own cannon?
And if cannons are allowed does that give me the right to own the modern equivalent of the 18th century cannon? Cause the 2nd amendment seem to give me the right to own more than just 18th century flint lock muskets…
Slartibartfast
Um, I think the fact that nuclear materials are regulated by the DoE (IIRC) might put a…er…damper on things. I think high explosives are also regulated, but I’m far too lazy to look it up. In any case, feel free to try to get yourself a tactical nuke and test this theory for yourself.
John S.
Slartibartfast-
I think StupidityRules is on your team:
I would have thought you were more adept at recognnizing the same flaw in others that you yourself posess.
Defense Guy
It is no surprise that the 9th would state this as their opinion, however, it doesn’t mean it is true. The highest court ruling in Miller is still the standard, and it is an individual right ruling. The lower court ruling (9th – Silveria), does not trump the higher court ruling in Miller, as much as some might like to claim it does. In addition, the 9th ruling is based on a very skewed view of the intent of the 2nd, as evidenced by the actual written opinion. Once again they prove why they are the laughingstock of the federal appeals process.
The Emerson case is just sad, especially if the abuse is unfounded. You know the USSC denied cert on that.