The MacDonald Slaughterhouse


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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151 Responses

  1. Avatar Jaybird says:

    Excellent post.

    I’ve never understood why it seems so very obvious to so many people that the 2nd Amendment obviously does *NOT* protect an individual right against the whims of the State. We’ve no problem reading the other 9 in such a way… yet the 2nd is supposed to be read substantially differently?Report

    • Avatar gregiank says:

      @Jaybird, my guess is because the founders clearly erred and put in that “well regulated militia” stuff.

      FWIW i’m think the position of many people labeled as “anti-gun” was that guns should be legal but there should also be some laws regarding them. So yippie for the gun rights folks. I’m sure with this decision the endless shoutfests and dogmatic screaching will end. There will be no more scare mongering about the gov taking every bodies guns and such.Report

      • Avatar Jaybird says:

        @gregiank, okay, let’s break that down.

        “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

        Reading that, I see that it says that since a well-regulated militia is necessary to the security of a free state, therefore the right of the people to keep and bear arms shall not be infringed.

        I honestly and sincerely do not understand how in the hell people can read that and say “well, obviously, that means that the right of the people to keep and bear arms requires limits such as preventing them from owning handguns.”

        Seriously. It’s opaque to me.

        If I said “A well regulated information network, being necessary to the security of a free State, the right of the people to distribute pamphlets, shall not be infringed” and someone else read that as saying that only certain people should be allowed to distribute pamphlets and only on certain topics… well, I suspect that you’d see the problem there.

        But, for some reason, you don’t when it comes to guns.Report

        • Avatar gregiank says:

          @Jaybird, the argument is that the right to own guns is for participation in a well regulated militia. The National Guard would be the current well regulated militia.

          I’m actually more interested in what the specific regulations we should have on guns, since i’ve always felt people should be able to own guns.Report

          • Avatar Simon K says:

            @gregiank, The court has made it pretty clear its going to leave that mostly to local government. At most they might force the states to have some kind of must-issue provision for licenses (due process again), but its unlikely they’ll get into the where when how and why.Report

          • Avatar Jaybird says:

            @gregiank, and why is that interpretation obviously better than one that leads you to believe that the right is a right retained by the people and that the amendment is intended to make sure that the right shouldn’t be infringed?Report

            • Avatar gregiank says:

              @Jaybird, Beats me, i don’t claim to have the dead spirits of the founders on my speed dial. I think its a reasonable interpretation but then again i am fine with both gun ownership, gun regs and never thought gun control was an evil commie plot.Report

            • Avatar Jaybird says:

              @gregiank, do you have papers they wrote on the Google?

              “I think its a reasonable interpretation…”

              Sure, fine. Why do you think it more reasonable than one that says “because militias are important, the right of the people to keep and bear arms shall not be infringed”?Report

        • Avatar Simon K says:

          @Jaybird, I think the idea was that the right to keep and bear arms depended on the need of the states for a well regulated militia that used private arms. Since the states now provide armaments for whatever militia they may need, the amendment is a dead letter. ie. That it protects only the right of the states to keep their militia, and not and invidual right.

          I don’t buy this myself – it seems clear that the text gives a reason for the protection of the right to bear arms and that the intent is not to give the only reason. Certainly one reason for it was that the states wanted to keep their militia, but it wasn’t the only reason.Report

          • Avatar Jaybird says:

            @Simon K, That it protects only the right of the states to keep their militia, and not and invidual right.

            But then I read this: “the right of the people to keep and bear Arms, shall not be infringed”

            This tells me that the right is of the people. Not the state. “Of the people.”

            I don’t really want to get into the whole “shall not be infringed” part because then I’ll totally start talking about how it means “shall not be infringed” and I’ll totally start sounding crazy.Report

            • Avatar Simon K says:

              @Jaybird, I didn’t say it was a good argument – it reads way too much meaning into a comma.Report

            • Avatar gregiank says:

              @Jaybird, thats where this debate gets silly. If you want to quote the amendment fine, that makes sense, but quote the entire thing. How do you read the well reg militia part?Report

            • Avatar Jaybird says:

              @Jaybird, “How do you read the well reg militia part?”

              As an explanation for the “shall not be infringed part”.

              Sort of “because X is so important, Y.”

              And then you see it twisted into “Well, obviously not Y because of X” and my eyebrows knit.Report

          • Avatar Michael Drew says:

            @Simon K, I agree that as written, it gives a reason for the protection, but then makes the protection pretty much unlimited (given which, I’d like to hear advocates of Heller or MacDonald defend the limits it allows).

            However, the presence of a historically contingent, stated reason for the protection in the article itself, as demonstrated by the conspicuous absence of same in other Amendments drafted and passed concurrently, seems like a direct invitation from the drafters to review constantly whether the need they identified remains, and should it appear somewhat permanently not to, to consider whether the amendment might be better jettisoned or altered. The presence of the justifying clause suggests that the framers understood that a protection of the right to bear arms could well be one that could come to be used for purposes the people might well have good reason to legislate against (such as rebellion without good cause), and thus in a case where the reason for inclusion seems to have passed into history and good reason seems to have arisen to review the efficacy of the protection, the clause seems a suggestion that such a review be done (at such time as popular may underwrite such a review).

            But as it stands, the protection does see more or less iron-clad.Report

        • Avatar Mike Schilling says:


          I have no problem with the right of people to bear the sorts of arms available in the late 18th century. Machine pistols with 100-round magazines are a different story.Report

          • Avatar Jaybird says:

            @Mike Schilling, and Freedom of the Press only applies to Gutenberg level tech?

            “Sorry, you can’t say that on the internet. The First Amendment only applies to pamphlets.”

            That sort of thing?Report

            • Avatar gregiank says:

              @Jaybird, so people can have Stinger’s, cluster bombs, claymores, mortars and cannons for self-defense.Report

            • Avatar Jaybird says:

              @gregiank, if we really want to get into the intent of the framers, *WHY* did they want a 2nd Amendment?

              Do you think the answer involves “hunters”?Report

            • Avatar Mike Schilling says:


              I don’t think the 2nd was intended to enable mass murder. Nor do I think the First Amendment protects building a radio transmitter to drown out a licensed station’s broadcasts.Report

            • Avatar Jaybird says:

              @Mike Schilling, “mass murder” is an interesting term.

              If your definition of “mass murder” includes “armed revolution against the government”, I daresay that the 2nd very well *WAS* intended to enable mass murder.

              We’re talking about people who had the experience the decade before of the British confiscating, among other things, weapons. They knew darn well what they were writing when they wrote the 2nd Amendment.Report

            • Avatar Mike Schilling says:


              A few machine pistols won’t do much against the armed might of the US government. You’re going to want tanks, artillery pieces and war planes, just as a start. If that’s what you think the 2nd protects, say so, and I suppose we’ll rationalize the occasional drive-by massacre as an unfortunate consequence of allowing the Muncie Militia parity with the 182nd Airborne.Report

            • Avatar Jaybird says:

              @Mike Schilling, is this one of those things where you’ll alternate between pointing out how the citizenry couldn’t rise up against a tyrannous government without ordnance while, at the same time, pointing out how the 2nd Amendment doesn’t protect the rights of people to keep and bear ordnance/point out how it’s absurd to think it might?Report

            • Avatar Mike Schilling says:


              P1 Interpreting the 2nd as protecting bearing ordnance is ridiculous.
              P2. Ordnance would be required for military overthrow of the government.
              C. Interpreting the 2nd as protecting the ability to overthrow the government militarily is ridiculous.

              IOW, pretty much.Report

            • Avatar Mike Schilling says:


              Or to say it another way, when they decide you’re a terrorist and come in the middle of the night to grab you and ship you off to God knows where, a handgun isn’t going to do anything for you but get you killed, and much as the GOP loves to tell you they stand for gun-toting liberty, all they’ll say is “Good riddance”.Report

            • Avatar Jaybird says:

              @Mike Schilling, so the argument is “you won’t even be so much a thorn in the side of the government as even the Iraqis are capable of being, so lie down little rabbit and don’t worry your head about handguns either”?

              Feel free to trade your guns into the local police station for hockey tickets, dude. I don’t see how you have the right to tell me that I ought not be allowed to own a handgun.Report

            • Avatar Jaybird says:

              (not in the First Amendment sense of tell but in the force of arms sense of tell.)Report

            • Avatar Mike Schilling says:


              the argument is “you won’t even be so much a thorn in the side of the government as even the Iraqis are capable of being, so lie down little rabbit and don’t worry your head about handguns either”?

              No, the argument is “Give up your fantasy about overthrowing the government with your handgun. Talk sense instead.”Report

            • Avatar Jaybird says:

              @Mike Schilling, There are dozens of arguments for gun ownership.

              The first is something to the effect of “you don’t have the right to tell me that I can’t own a gun.”

              This argument isn’t believed by anybody. Of *COURSE* I have the right to tell you that you can’t own a gun!, they think.

              The ones that follow, in America anyway, tend to focus on the 2nd Amendment.

              “The Amendment says this!” is a fun argument. “Because X, Y!”
              It tends to get turned around by others who say “well, if you parse X, it obviously means *NOT* Y.”

              At that point one can appeal to the writings of the founders (the Declaration of Independence, Federalist Papers (24-29), so on).

              Now it ought to be pointed out that the argument that it doesn’t matter what the Founders intended is a fair one indeed and it needs to be hashed out in its own right.

              But the argument that the Fathers thought Y is a fair argument in response to people who argue that the 2nd Amendment obviously means because X, not Y.Report

  2. Avatar sam says:

    How would you answer this question that was raised (Ilya didn’t answer):

    The two clauses [of the 14th Amendment] at issue seem to be in some tension:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

    nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws [I think the equal protection clause goes along logically with the due process clause].

    The P or I clause safeguards the rights of only American citizens (plainly read), while the due process clause (and equal protection clause) extends constitutional protections to all persons within the jurisdiction of the United States and the several states.

    I guess my question is, how would one, in general, distinguish between a right that accrues to someone in virtue of his or her being a citizen of the United States and a right that only accrues as a result of being within the jurisdiction, etc.? Do Americans, for instance, have greater rights to counsel and trial by jury than aliens? If not, why not, or vice versa? Is there a criterion or criteria to distinguish?Report

    • Avatar Simon K says:

      @sam, Not sure where there’s tension in the text – the clauses clearly do different things. The privileges or immunities clause says the states have to respect the rights of US citizens. The due process clause says you can’t deprive any person of life liberty or property. US citizens could in theory – and do in practise – have rights beyond those to life liberty and property. For example the right to vote is a right specific to US citizens. Also, the due process clause doesn’t in itself say what the due process has to consist of. On its face it permits the states to confiscate all property belonging to red-haired persons provided it does it using legislation and court procedures and not by simply sending the heavies round to throw them out of their houses. The privileges and immunities clause does protect against this, but only for US citizens.

      In the context where they were originally passed the distinction is plain enough – the privileges and immunities clause was intended to prevent the states from making former slaves into second class citizens, and therefore only applied in the context of citizenship, and the due process clause was intended to stop the states from simply persecuting them without going to the trouble of making laws to do so.

      The court has substantially muddied the waters since by essentially claiming that the privileges or immunities clauses doesn’t mean anything in practise, but then insisting that due process must be “substantive”, which is slowly coming to mean it has to respect all the rights the privileges or immunities clause was supposed to protect. Give it another century …Report

      • Avatar sam says:

        @Simon K,

        I guess the tension I perceive between the clauses arises out of a difference in extension. The PorI clause limits the scope of rights to American citizens only, while the due process clause (and even more so, the equal protection clause) extends the charter of freedom beyond what the PorI clause does. I mean, why didn’t the framers of the 14th write the clauses this way:

        nor shall any State deprive any citizen of the United States of life, liberty, or property, without due process of law; nor deny to any citizen of the United States within its jurisdiction the equal protection of the laws.

        It’s almost as if they read the PorI clause out loud and said, “Uh oh, better correct that and universalize the protections as much as possible. After all, all men are endowed by their Creator, etc. We’ll do it by using the words ‘person’, ‘liberty’ ,and ‘equal protection of the laws’ — those most expansive of words in our democratic vocabulary.” And, I think this, especially the use of the word ‘liberty’, is why substantive due process has carried the day when the question of fundamental rights has arisen. I grant that has muddied up the waters, but how could it have been otherwise in a society as dynamic as ours? Liberty is not easily cabined for us.Report

        • Avatar Simon K says:

          @sam, I think the PorI clause is intended to protect a larger set of rights, including political rights eg. the right to vote, to join political parties, etc, that non-citizens don’t have. Hence the reference to citizenship and the use of the odd expression “priveleges or immunities” rather than rights. Of course the understanding of due process has indeed expanded so much it might cover even these, but it certainly wasn’t originally supposed to.Report

          • Avatar Jaybird says:

            @Simon K, as an aside, it ought be pointed out that there was a very, very specific group of folks they were thinking about when they thought about “non-citizens”.Report

            • Avatar Simon K says:

              @Jaybird, Well yes, obviously. Although the 14th amendment made them citizens, right?Report

            • Avatar Jaybird says:

              @Simon K, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

              In the same breath of making them citizens, it also seems to make them members of “the militia”.Report

          • Avatar Dave says:

            @Simon K,

            Much of what can be learned about the PorI clause can be learned via the Privileges and Immunities Clause of Article 4, the meaning of which was addressed in a circuit court case (Corfield v Coryell, 1823). That opinion pointed to both the natural and civil rights of citizens.

            Regarding due process, I’d argue that the understanding of due process has been butchered since people facially view the language as procedural in nature (both liberals and conservatives have done this – hence the term “New Deal Originalism”) when in fact due process of law included judicial review and part of that judicial review was to determine whether or not the government’s actions were appropriate.

            Prior to fundamental rights analysis, courts did not identify specific rights as they do now. Case like Meyer v Nebraska and Pierce v Society of Sisters involved elements of privacy in different areas of life, but the court simply struck down the statutes as being in excess of the state police power rather than attempt to identify the right, match the appropriate level of scrutiny and go from there.

            I tend to thank the Progressives for that. When they were finally successful in upending the freedom of contract doctrine that drove them nuts for the better part of 30 years, they ultimately threw most unenumerated rights to the mercy of democratic majorities, something laid in Footnote Four of Carolene Products.Report

          • Avatar sam says:

            @Simon K,
            “I think the PorI clause is intended to protect a larger set of rights, including political rights eg. the right to vote, to join political parties, etc, that non-citizens don’t have.”

            Uh, I wasn’t aware that a noncitizen is prohibited by law from joining a political party, or contributing to political candidates, etc. (Or are you saying they would not have a cause of action if denied by the party?) Voting, yeah, holding office, yeah (at the federal level, anyway) but beyond that, I’m pretty sure they can participate in the political process. As a matter of fact, other than voting (and maybe serving at the federal level), I’m hard pressed to think of something in the nature of a political right that is proscribed to someone in virtue of his being a noncitizen. Can you give some more examples?Report

  3. Avatar Bob Cheeks says:

    Carry guns, form militias, every once in a while hang a statist commie-dem, enjoy the fruits of the republic.Report

  4. Avatar Bob Cheeks says:

    Actually, I wouldn’t assume I do know that. We’ll have to try it and find out!
    Anecdote, I’m having coffee this morning with an old pal from my high school days who prides himself on being a “librul.” He ALWAYS and everywhere carries a Beretta in his pocket…go figure.Report

  5. Avatar Jaybird says:

    (and, for the record, the 2nd Amendment protects a right. It does not create a right. As such, it doesn’t matter whether the 2nd would exist in the first place a law saying “you can’t own a handgun” as the law in question did would be a violation of rights even if the 2nd Amendment didn’t exist. The existence of the 2nd isn’t what makes the law a bad law. It only makes it an unconstitutional one.)Report

  6. Avatar Jaybird says:

    Greginak, down here…

    Let’s say, for the sake of argument, that I said that, of course, people like you obviously shouldn’t be allowed to own claymores.

    Why the very thought that you could be trusted with a claymore is absurd.

    For the sake of argument, let’s say we agree on that.

    Does that mean that Chicago can decide that you can’t be trusted with a handgun (which was the law overturned by the case in question)?Report

    • Avatar ThatPirateGuy says:

      Sorry to jump in Jaybird but I couldn’t resist.

      I am inclined to think that you are right as far the unconstitutional nature of gun control. But I think that we pay a terrible price in people shot because of the second amendment.

      It is a price I am only willing to pay because I don’t want anyone to start mucking about with the bill of rights. Not the supreme court and even worse not an amendment process(even though it is the valid process constitutionally the idea terrifies me.) If any politician or pressure group cared what I thought, I would recommend that they simply drop gun control attempts, find a non-NRA gun-rights group to partner with and simply repeal the existing laws so that we can stop arguing over an issue that is a legal and electoral loser for liberals.Report

      • Avatar Jaybird says:

        @ThatPirateGuy, one question I’d have with regards to the 2nd Amendment is this:

        Do the places with stricter gun laws tend to have less gun crime than places with more (I was going to say “liberal”) relaxed gun laws?

        If, it turns out, that places with tougher gun laws tend to have more gun crime, why might this be?

        (And, dude, always jump in. Throwing down is a pleasure.)Report

        • Avatar ThatPirateGuy says:


          It depends on the places.

          If we are talking inside the states you have to keep in mind that I can buy a gun in say detroit and drive to to chicago very easily.

          It would be significantly harder for me to get my gun from detroit to say london(still possible but it requires much more expertise.)

          So even a priori there is a definite confounding factor. That doesn’t even address other problems a study like that might have.

          So my answer is that the borders between gun-banned and non-gun banned regions in the states are too porous for the gun ban to work at making guns unavailable to criminals. They can work wonders at making them unavailable to non-criminals however.Report

          • Avatar Jaybird says:

            @ThatPirateGuy, so taking the porous nature of the borders between ban cities and non-ban cities into account…

            Do cities with strict gun laws have more gun crime than cities with looser gun laws?

            (And, of course, by gun crime I don’t mean stuff like “possession” but “shots fired”)Report

            • Avatar ThatPirateGuy says:


              I doubt you would be asking if you didn’t think you had the answer so [citation needed] ;).Report

            • Avatar Jaybird says:

              @ThatPirateGuy, I don’t have such at my fingertips… and I’m pretty sure that we’ve got a chicken/egg problem because I suspect that there is a pretty decent correlation between the increase of crime-in-general with the increase of gun crime.

              As crime goes up, laws tighten about Saturday Night Specials, crime goes up, laws tighten about more expensive handguns, crime goes up…

              Whether there is a positive feedback loop there is, of course, the root discussion.

              Places out in the boondocks (Rifle, Colorado) tend to have a lot less gun crime per capita than, say, Baltimore.

              I reckon that Rifle has a lot less crime than, say, Baltimore.

              (And, according to , Rifle is a 2 for violent crime and a 2 for property crime on a 10-scale… Baltimore is a 7 and an 8 respectively. The country, in general, is a 3 and a 3… AND HOLY COW COLORADO SPRINGS IS A 5 AND A 4!!!! Still, better than Denver and Pueblo.)

              Is it a “cities” thing? Is it a “density” thing? Is it a “culture” thing? I grew up with guns in the living room in a gun case made by my great-uncle.

              A friend moved to Colorado from Jersey and he couldn’t believe that I owned guns. He couldn’t believe that most of the people he had been playing poker with earlier in the evening had been packing. Guns were something that criminals had, as far as he was concerned.

              I dunno.Report

        • Avatar Simon K says:

          @Jaybird, The UK has much stricter gun laws and far less gun crime than the US. However, it doesn’t have less violent crime – in fact it has quite a lot more violent crime on average, in the form of stabbings, assaults, etc.Report

          • Avatar Jaybird says:

            @Simon K, that’s another thing that’s really interesting.

            Has it always had strict gun laws? (For definitions of “always” that probably could be limited to “living memory”)

            Did the 1948 folks, for example, hand in their handguns or was it something more recent?

            As mentioned in my yet-to-be-released-from-moderation comment, it looks like we have a chicken/egg problem…

            Do the prohibition laws follow crime spikes or do the crime spikes follow prohibition laws?Report

            • Avatar Simon K says:

              @Jaybird, Its always been stricter than the US average – certain weapons are allowed, but you have to have a license, which requires no police record, a good reason to own the gun, character references etc, etc and is basically up to the judgement of the local police to grant or deny. Guns have to be kept secure and unloaded at all times when not directly in use. This regime has been in place since 1920, although the class of weapons allowed and the purposed for which they can be owned has shrunk.

              Self defense was removed from the set of acceptable reasons to own a gun in 1937, and handguns were finally banned outright in 1997. At this point, you can own a rifle or low-powered shotgun for hunting or skeet shooting. Most farmers still own shotguns, although there’s been further mumblings about further restricting this. Most of these waves of gun control have followed some wave of fear about gun crime. The final outlawing of hanguns in 1997 followed the Dunblane massacre. The original 1920 act was partly motivated by fear of political revolution. I doubt any of them was particular followed by an up-tick in crime since gun ownership was never widespread enough to create much of a deterrent.

              It might be interesting to compare N Ireland, which has different gun laws and more widespread gun ownership, and outside of political violence very low levels of crime.Report

    • Avatar gregiank says:

      @Jaybird, I think there are all sorts of weapons that are part of modern armies that perhaps people should not be able to buy. When the constitution was written this was not the case. So who is the gatekeeper for what is legal and what isn’t. I guess we have a democratic form of gov acting within the constitution to do that.

      I think city wide bans on guns are not practical. I used to live in Jersey. During many of the gun debates i would make the point that if somebody wants a gun in Jersey all they have to do was drive to Virginia or Florida promise they weren’t criminals and they could buy all the guns they wanted legally . Having so many different gun laws, and states with very weak laws, made it impossible for any state to have strict laws. So much for states rights. City level bans are just not workable.

      Somebody needs to enforce whatever laws we have, i wonder whose job that is.

      I’ll also assume your going to make a gulag comment soon since if THEEVILGOV can decide who can be trusted with a gun then we are all doomed. The “who decides who can be trusted” argument is a weak emotional ploy. Various gun laws are popular and very likely would be acceptable to the Supremes. Most people don’t wont felons or people with DV restraining orders to have guns. Is that about trust or reasonable public safety. Its not about trust to make sure people aren’t wanted criminals before buying a gun at Walmart.Report

      • Avatar Jaybird says:

        @gregiank, actually, instead of a “gulag” comment, I’ll talk about stuff that actually happened in this country.

        Did you know that black people were not considered to be eligible for “the militia” in some parts of the country? It’s true!

        White folks were the only ones considered eligible for “the militia” and, as such, black folks weren’t eligible for gun ownership.

        On top of that, this attitude went aaallllllll the way to the Supreme Court. Where it was upheld.

        Do you agree that people who are not deemed to be eligible to be part of “the militia” should be able to be prevented from gun ownership?

        It seems to me that you do.

        I’m wondering if you think it not an excess on the part of the government to say that black folks shouldn’t be allowed to own guns.

        Hey! Maybe you and Rand Paul could hang out!Report

        • Avatar gregiank says:

          @Jaybird, Very creative, I’m glad your expanding your use of slanderous accusations past just the gulag stuff. This is a bit more subtle and well crafted. Although the putting words in my mouth stuff is a bit lazy.

          I don’t have a problem with gun ownership with some regulations. this actually puts me in the same camp as most NRA members and the majority on the supreme court. I do think the “well regulated militia” part of the 2nd actually has some meaning, i don’t think is reasonable to just not even mention it as many “gun rights” people seem to.

          Has anybody actaully made the arugment only people in the NG should have guns????? That seems to be the words you are attributing to me. I know i haven’t. Remember Jay, most people aren’t absolutists.Report

          • Avatar Jaybird says:

            @gregiank, you are the one who has argued that it is reasonable to see “well-regulated militia” as the part of the 2nd that defines the second half of the amendment.

            Indeed, that it is reasonable that denying gun ownership to people who are not “well-regulated” is not, in fact, an infringement of their 2nd Amendment rights.

            Have I misunderstood your position? Is this not, in your words, “a reasonable interpretation”?Report

            • Avatar gregiank says:

              @Jaybird, uh yes you have misinterpreted my position and probably that of every gun control group.

              I think the well regulated part of the 2nd has meaning, it suggests that the uninfringed right to own a gun does not, as gun rights groups see it, rule out gun laws. As originally intended i think the founders were thinking of guns for militias. However the world is very different now. Private gun ownership the way it is now thought of is very different from the way it was thought of back then.

              Have i ever said only people in the NG can own a gun or has anybody ever said that? No. So therefore your misinterpretation is hard to understand.

              We have a lot of specific rights that can still be regulated in certain situations. So as i have said, i am more interested in what regs we should have then arguing about clauses. I think guns and militias were a bit different back in the day so trying to directly apply it to now does take some thought. I, and i would guess you do, think the ninth amendement means something. We have rights not specifically noted. we can own what we want but that does not rule out laws regarding public safety.Report

            • Avatar Jaybird says:

              @gregiank, the Supreme Court cases are not discussing dudes who want to own claymores and AKs. Heller and Chicago cases were talking about gun laws that prevented normal dudes from owning a handgun.

              Just a handgun.

              Were you not bringing up the reasonableness of using the “well-regulated militia” clause as justification for gun laws when we’re talking about gun laws that prevent folks from owning a handgun?

              Because, if you weren’t, it’d be like discussing “crush videos” as justification for censoring Lady Chatterley’s Lover.Report

            • Avatar Michael Drew says:

              @Jaybird, But what is it that keeps what they are discussing from being about those arms? There is nothing in the Amendment saying that it applies to certain classes of arms (though you rightly point that arms perhaps may be distinguished from other forms of munitions much would depend on their understanding of the term) more than others. There is no reason AKs should be presumptively controllable more than handguns. Surely they are both arms. A “compelling government interest” standard was developed for determining when disobeying the plain words of the Constitution precisely because it was quickly seen that the document was simply to absolute to be put into practice. So the question is of whether the government interest is compelling. And it defies much of the thrust of this particular majority’s jurisprudence for them not to trust local governments with that determination – some localities will perceive a much different interest in controlling handguns than others. And this decision invalidates those differences in perceived interest.Report

  7. Avatar gregiank says:


    I thought we were discussing the 2nd amendment. Personally for self defense in my home i’d go for a shotgun over the handgun.Report

  8. Avatar Pat Cahalan says:

    Jaybird, you’re freaking out here. Please to be putting the rails back under the train.

    Compare the amendments in the bill of rights. The first amendment contains no explanatory language. The third amendment contains no explanatory language. The fourth, fifth, sixth, seventh, eighth, ninth, and tenth contain no explanatory language.

    None of them do, except the second… if we accept your premise that “the well-regulated militia” language is in there only to explain the second half of the thing.

    It is therefore *at best* only arguable that the language is in there only as descriptive language and not intended as a possibly limiting factor.

    In other words, before you go saying that gregiank or anybody else is completely batshit insane to suggest such a thing (even by implication), it might behoove you to explain why your interpretation is so much more reasonable…

    … given that the amendment in question is the *only* one that has such unnecessary verbiage in it.


    Now, there are several reasons why private gun ownership was included in the bill of rights, and any (even moderately non-insane) student of history can posit that it is reasonable likely to assume that the amendment is in there precisely to prevent the government from wholesale impounding of personal firearms. Given the historical context of the British attempting to do, yanno, precisely that.

    (However, it is also not completely unreasonable for someone to point out that the context of the revolutionary war doesn’t precisely match the context of modern society, but we can kick that ball down the field for now.)

    That said, even in the context of the revolutionary war, it’s a serious stretch of the imagination to claim that the second amendment applies to “anything that goes boom”, not just longarms.

    Artillery troops were elite troops in the 18th century, it took far more education than was possessed by the average Joe to compute a trajectory and drop a shell onto a group of soldiers. Nobody would rationally conceive of private ownership of a howitzer; only an actual organized military force of some sort would have a group of people with the expertise to use the goddamn thing without blowing themselves up. Hell, the American forces didn’t even have many cannon during the war.

    If you are proposing that the founders assumed that the second amendment was covering anything that could possibly ever be described as “arms” (including artillery), you will have to provide some serious justification for that claim for me to buy it. I haven’t read enough of their personal writings to reject the possibility, but I’ve studied enough military history to regard that as a vanishingly small likelihood.

    In short, it seems likely to me that the founders intended that the government not be allowed to impound or restrict personal firearms.

    The “personal firearms” class making sense as a class only in historical context.

    No, I don’t believe that it is unreasonable to claim that the second amendment does not cover unqualified access to mortars, cannon, other types of field artillery, mines, claymores, flamethrowers, missile launchers, RPGs, machine guns, SMGs, grenades, incendiary bombs, or biological, chemical, or nuclear weapons. Most of those things didn’t exist and in fact would be outside the realm of imagination in 1800.

    Hell, it’s not unreasonable to include handguns on that list, because a handgun was not a reliable piece of hardware in 1770. It was accurate out to about all of 30 feet, which is why so many gentlemen survived dueling with pistols. No tyrant would even bother to impound the freaking thing, you couldn’t use it effectively in mass combat anyway, so it could hardly be used as a weapon of revolution.Report

    • Avatar Jaybird says:

      @Pat Cahalan, here’s another interpretation… let’s see if it works for you.

      The First Amendment talks about Congress. That’s it. It allows for such things as States respecting an establishment of religion… and my evidence for this take on the Amendment is that there were, in fact, several states that had established Churches.

      Now the 2nd does not mention Congress. Indeed, it offers a blanket rule:

      The right of the people to keep and bear arms shall not be infringed.

      Golly, that’s a pretty bold statement! What possible justification might there be for such a bold statement?

      Well, a well-regulated militia is necessary for a free state.

      Oh, so that’s why.

      Now perhaps you’d like to make the argument that the revolutionary colonists going to war against King George III in the 1770s obviously had no intention to argue that people ought to have access to the same weapons as were being used by the oppressive government.

      I would be interested in reading such an argument, if you’d be interested in providing it.Report

      • Avatar Michael Drew says:

        @Jaybird, The right to keep and bear “the same weapons” as would be used against rebels in a rebellious off-shore colony. That’s your position as to what the 2nd Amendment now, today, protects?Report

      • Avatar Pat Cahalan says:


        No, that doesn’t work for me. If you’re seriously suggesting that the second amendment acknowledges that a free citizen has a right to possess any ordinance that the government can own, I’m afraid that I frankly don’t agree.

        I also think you’re completely unhinged if you’re suggesting that anybody in the country ought to be able to pick up a 1 kiloton warhead and stick it in their backyard.

        And again, I’d like you to offer some sort of contextual guidance in the way of references to support this view.

        Show me a section of any letter, missive, autobiography, public speech, you name it… by any member of the founding fathers… to suggest that they are speaking about private citizens having access to *military* ordinance. Even in the late 1700s, there is a distinction between arms that might be carried by a everyday citizen or even a militiaman and arms that require the advanced training of a professional military. Show me a portion of the debate over this amendment, a legal argument submitted in a pre-revolution court, any communique sent by anyone in the colonies to the British government… a manifest of the munitions depot at Concord… a manual at arms for the colonial army, a training document from West Point circa 1810… anything to suggest that “bear arms” could be reasonably construed as “the guy who lives next door to me in Boston can own a mortar.” I don’t doubt that it’s possible that some exists. I would like you to show it to me.

        Frankly, I think that’s just not a justifiable position… even contemporary to the historical period of the ratification of the Constitution… let alone the fact that “arms” in a pre-Industrial Revolution society do not bear any sort of resemblance to arms in the present day.Report

        • Avatar Jaybird says:

          @Pat Cahalan, If you’re seriously suggesting that the second amendment acknowledges that a free citizen has a right to possess any ordinance that the government can own, I’m afraid that I frankly don’t agree.

          What if I made a distinction between “arms” and “ordnance” and said that the 2nd Amendment only referred to “arms”?

          Would that be unreasonable?

          I would think it quite reasonable to say that, oh, a 9mm handgun would qualify as an “arm” while a cannon would qualify as “ordnance”.

          You touch on that when you say this: “Even in the late 1700s, there is a distinction between arms that might be carried by a everyday citizen or even a militiaman and arms that require the advanced training of a professional military.”

          Would we be down to say that the 2nd Amendment protects the rights of the people to “arms that might be carried by a everyday citizen or even a militiaman”?

          Because I would agree with that in a heartbeat and wouldn’t worry overly about my right to own, say, a tank.Report

          • Avatar gregiank says:

            @Jaybird, mortars: yes or no
            grenade launchers: yes or no

            There is also some line that has to be drawn some place. And somebody will always scream “dictatorship” or “how dare you draw a line” regardless.Report

            • Avatar Jaybird says:

              @gregiank, to run with my ordnance theory, I’d say that it’s reasonable to say that the 2nd Amendment does not protect my right to a grenade launcher or a mortar.

              Now I’ll ask you:

              Does the 2nd Amendment protect my right to a handgun?Report

            • Avatar Pat Cahalan says:


              Yes, the Second Amendment (IMO) certainly does protect your right to a handgun. I’m not arguing against this particular case, where it seems the ruling is correct on the face of it.

              Personally, I’m not much invested in the gun control debate. It seems pretty self-evident to me that private citizens, in this day and age, don’t need access to firearms to protect themselves (hell, even against a well-armed military, the Iraqi insurgents do more damage with IEDs than they do with automatic weapons), but on the other hand it seems pretty self-evident to me that necessity isn’t what either side is required to demonstrate here.

              If the anti-gun crowd wants to ban gun ownership, they need to go after a constitutional amendment, just like the anti-abortion folk need to go after a right-to-life amendment. That’s the barrier you’re looking at right now, plain and simple. Anything less than that is largely irresponsible posturing, you’re just wasting court time.

              I do believe that there are qualifications on your rights to own a handgun (or any firearm for that matter) that are reasonable… for example, if you’re unfit for duty in a militia (say, because you’re a violent felon), it’s within the rights of your other potential militia members to say, “Okay, you’ve forfeited your right to arm yourself”. However, I believe that the burden here is on the government to make the case that you qualify and on the courts to accept that qualification. You can’t just say, “anyone convicted of any crime can’t own a gun”.Report

            • Avatar Jaybird says:

              @Pat Cahalan, fair enough.

              My problem with the attitude that says I do believe that there are qualifications on your rights to own a handgun (or any firearm for that matter) that are reasonable is that, next thing you know, you’re hearing the exact same argument for why it’s okay that we waterboarded KSM.

              The 8th Amendment, after all, has to have some reasonable exceptions. There are people who want to kill us. Besides, it’s not like Middle Ages kinda torture. It’s just like drowning. Pretend drowning.

              You’re not an 8th Amendment nut, are you?

              See what I mean? Once you start carving out exceptions for yourself because your circumstances are extraordinary… you find that you don’t have a soul anymore.Report

          • Avatar Pat Cahalan says:


            Yeah, I get that… that’s always a danger when you start talking about qualifications to anything. About the best you can hope for, in practice, is that an adequately designed system of checks and balances will correct that sort of problem. Hence the:”I believe that the burden here is on the government to make the case that you qualify and on the courts to accept that qualification.” Due process, and all that.

            Of course you’re going to get periods of legal insanity. The system (after all) isn’t designed to respond to certain types of exception scenarios very well. In the particular case of the “War on Terror”, it’s unclear that you can actually use the term cap-W “War” to describe the “War on Terror”, and it’s certainly at least debatable that the protections outlined in the BoR don’t apply, given that we can’t really be in a state of War against a non-state agency.

            I think this goes back to “the burden is on the government to attest and the courts to agree”… and it’s clearly the case that that’s not what happened when it came to waterboarding.

            After all, you’d have to be seriously stretching to say that there was any contemporary analog that might lead one to reasonably say that the Founders would consider a non-State agency involved in violence against the citizenry to qualify as “war”. The closest analog would be mid-18th-19th century piracy, I suppose… but even contemporary to the founders piracy was largely a state-sanctioned (or at least, originally a state-launched) action.Report

      • Avatar Pat Cahalan says:


        Oh, to address this:

        > Now perhaps you’d like to make the
        > argument that the revolutionary
        > colonists going to war against King
        > George III in the 1770s obviously
        > had no intention to argue that
        > people ought to have access to the
        > same weapons as were being
        > used by the oppressive government.

        Even supposing that they did, arming a militia (a volunteer force) is manifestly different from arming a standing Army or Navy. Which, uh, the Constitution directly references in multiple places.

        The Congress has a right to raise and support Armies (8.12), Navies (8.13), *and* Militias (8.16), which clearly indicates that the framers differentiated between an Army and a Militia.

        The States, for another example, are forbidden from their own Troops or Navies, but they get to train and appoint officers amongst the aforementioned Militia.Report

  9. Avatar JosephFM says:

    I think the real problem is that, as Mark says, there aren’t really any agreed-upon fundamental rights in the strict sense. If even speech can be restricted in rare cases, the entire philosophy of the Bill of Rights is basically called into question. This is why we keep acting like they create rights, because as a practical fact all that can be done is to delineate limits on government and trust the courts to enforce them – which often fails completely.

    As for gun rights, specifically, I honestly have no strong opinions – I’ve lived my whole life in places with very loose gun laws as these things go, and I don’t see that we’re substantially worse off for that particular reason.Report

  10. Avatar gregiank says:

    @Jaybird- As i’ve said, i think gun ownership is fine and dandy. i also think there can be laws regarding guns. I don’t see the 2nd as saying there can’t be a check when you want to buy a gun to see if you are a criminal. I think .50cal sniper rifles are probably a no go.Report

    • Avatar Jaybird says:

      @gregiank, I’m of the opinion that felons who have paid their debt to society should be able to, among other things, vote.

      One of the other things is “own a gun”.Report

      • Avatar gregiank says:

        @Jaybird actually i was referring to checking, at point of sale, whether someone has a warrant for their arrest. I would also add i don’t see any prohibition in the 2nd from keeping a database of gun ownership. I know both of those things send some people into a frenzy but i don’t see how they are unconstitutional.Report

        • Avatar Jaybird says:

          @gregiank, would it be relevant to point out any number of governments that have, in the past, used gun registration databases as points of information before they started confiscating guns?

          Would it make a difference if I pointed out that the government was confiscating guns in the wake of Hurricane Katrina?

          I’m not a fan of such databases… because they get used when the government has half a mind to start confiscating the guns of the citizens.Report

          • Avatar gregiank says:

            @Jaybird, fine, but i don’t see the 2nd as prohibiting it.Report

          • Avatar Pat Cahalan says:


            I’m not a fan of such a database either, because it has essentially zero practical value.

            What does tracking gun ownership give you?

            What problem are you trying to prevent?

            How is auditing gun ownership through a legal channel going to solve that problem?

            The answer is, “you’re trying to prevent criminals from getting their hands on guns.” But that doesn’t extend to the solution presented – tracking everybody who owns a gun doesn’t help you prevent any criminals from stealing those guns.

            If anything, it creates a new exception scenario: there’s now a list of all privately-held firearms. I can see lots of uses for that list that aren’t good ones, including criminal uses.Report

      • Avatar Travis says:

        @Jaybird, I agree that felons should be able to vote. Own firearms? Not a chance. If you’ve committed a serious crime, you’ve already demonstrated your liability to pose a threat to the public.

        Now, you may get me to agree that we have too many crimes that are felonies, particularly drug crimes. But the solution there is to reduce the number of felonies, not allow people convicted of rape, assault and major fraud to own deadly weapons.Report

        • Avatar Jaybird says:

          @Travis, if you think that they aren’t ready to rejoin society as a full citizen, keep them in prison until you think that they are ready to rejoin society as a full citizen.

          Because, lemme tell ya, it’s pretty easy to get a gun if what you want is a gun.Report

          • Avatar Travis says:

            @Jaybird, and the reason to make it even easier is… what?Report

          • Avatar Pat Cahalan says:


            > if you think that they aren’t ready
            > to rejoin society as a full citizen,
            > keep them in prison until you think
            > that they are ready to rejoin society
            > as a full citizen.

            This doesn’t scale well. Note: I’ll agree, the scaling problem can probably be mitigated quite a bit by cutting down quite a bit on the list of crimes, but there’s also other crimes that deserve prison as punishment, but should have parole as penance.

            If someone evades taxes on 100 million dollars, throw his ass in jail for tax evasion, but give him parole (like any other tax evader) after a suitable length of time and put him back to work so that he can pay his tax debt.

            Punishment and penance don’t always go hand in hand.Report

    • Avatar Jaybird says:

      @gregiank, parsing that… I see that you do *NOT* think that the 2nd Amendment protects my right to a handgun.

      Do you think that the 8th Amendment protects citizens against torture?

      Do you think that the Miranda decision is wrong given what the 6th Amendment *REALLY* says?

      Is it at least reasonable to see why people are saying “oh, the Bill of Rights doesn’t mean *THAT*…” given your inclination to do so?Report

      • Avatar gregiank says:

        @Jaybird, really where did i say that?Report

        • Avatar Jaybird says:

          @gregiank, Well, in response to your asking me a direct question, I gave you a direct answer. I’ll even quote it.

          I’d say that it’s reasonable to say that the 2nd Amendment does not protect my right to a grenade launcher or a mortar.

          After saying that, I asked you a question involving rights. Your answer did not discuss rights. At all.

          Was I wrong?

          I’ll give you a similar out to the one I used:

          Do you think it is reasonable to see that the 2nd Amendment protects my right to a handgun? (For the sake of argument, I’ll (honestly) state that I have no criminal record.)

          Or will we be back to language that focuses on your personal feelings?Report

          • Avatar gregiank says:

            @Jaybird, I think we have a right to buy what we want within scope of safety and public safety regs. I’m sure i’m alone on this, but i don’t need the 2nd to guarantee a right to own guns. we can buy what we want.

            The 2nd was written for the 1700’s, its language does not 100% match with the 2000’s.Report

            • Avatar Jaybird says:

              @gregiank, so you *DON’T* believe that the 2nd Amendment protects my right to own a handgun?Report

            • Avatar Travis says:

              @Jaybird, what did the word “arms” mean in 1789? Flintlock muskets and single-shot smoothbore muzzle-loading pistols.

              So yes, I agree that you have the right to possess a single-shot smoothbore muzzle-loading pistol.

              A semiautomatic pistol capable of firing 15 or 30 shots within a few seconds? Not sure that’s what the Founders envisioned.Report

            • Avatar Jaybird says:

              @Travis, and what does “Freedom of speech” mean to the Founders?

              Does it include 2 Live Crew’s “As Nasty As They Wanna Be”?Report

            • Avatar Travis says:

              Thus ever the problem with strict originalism. If one is going to insist on a textual reading, one must take the words in the context of their original meaning.

              An interpretative reading of the Second Amendment would suggest that we have the right to purchase and possess firearms suitable for personal defense, including handguns — but that this right, like other rights, is subject to reasonable regulation.Report

            • Avatar Jaybird says:

              @Travis, so if I were to argue that the Fathers could not have foreseen 9/11, would that make it cool to engage in extraordinary rendition?

              I’m just trying to think outside of the box, here.Report

  11. Avatar gregiank says:

    @Jaybird- what about- i think you have a right to buy a gun – is hard to understand.Report

    • Avatar Jaybird says:

      @gregiank, give me a hint as to what phrasing of the question I’d need to use to get a “yes” or “no” answer from you.

      I’m out of ideas.Report

      • Avatar greginak says:

        @Jaybird, come on jay you never tire of fishing for oppression.

        How about this. I think the second is a bit of an anachronism, its wording does not directly apply to now. I tired of endless fights about this clause and that years ago. I think we have a right to buy a gun….really is that so hard to understand. Every single right does have to be specifically stated for it to exist. If there was no second amendment i would still think we had a right to own guns.

        I’m more interested in the conversations in other parts of the thread regarding whether felons can own guns or about a national database. I’ve never thought gun ownership was remotely in danger, that was NRA propganda to terrify people. We are a gun owning nation and will always be so. What matters is more how gun ownership works and what laws we do have.Report

        • @greginak, I’m personally a believer in applying intermediate scrutiny to gun laws (and really most laws in general). I suspect that most (though certainly not all) gun laws would withstand such scrutiny on the grounds of “public safety” being an “important governmental interest,” although if Judge Urbina’s decision in Heller II ( stands, I may have to change this preference to one of strict scrutiny (I actually think plenty of gun laws could even survive that). I have a difficult time seeing how so-called “assault weapons bans” are substantially related to anything other than “these guns look mean.”Report

        • Avatar Jaybird says:

          @greginak, greg, if you believe that the law can prevent any given citizen from buying a handgun for really, really good reasons, then it’s not a right.

          It’s like belief that the government can shut down a particular newspaper if it’s really, really important.Report

          • Avatar greginak says:

            @Jaybird, ahhhhh No. I don’t buy that absolutist stuff. Regulations can exist with rights. Que up mentioning freedom of speech exists with laws against yelling fire in a crowded theater.Report

            • Avatar Jaybird says:

              @greginak, you know that the whole “you can’t yell fire in a crowded theater” argument was used at a Supreme Court level to throw a political pamphleteer in prison, right?Report

  12. Avatar gregiank says:

    @jaybird- You do know that rights can be restricted at times.Report

    • Avatar Jaybird says:

      @gregiank, and that justification has been used to:

      waterboard people
      sterilize the retarded
      sterilize the non-retarded
      imprison people for passing out pamphlets

      You’ll forgive me for being “unreasonable” about this.Report

      • Avatar gregiank says:

        @Jaybird, i’ll forgive you for being dogmatic and seeing everything as an absolute to be self-righteous about.. You yourself said way up thread that there were things we should not be able to buy like a tank or a cannon. That seems to me like when you draw a line it is reasonable but when others do its oppression.Report

        • Avatar Jaybird says:

          @gregiank, And what was your opinion on waterboarding again?

          Was it a variant of “well, you have to understand, people are trying to kill us”?

          Are the people who take that attitude being perfectly reasonable?

          Or is that different?

          (Also, my phrasing isn’t exactly the phrasing that you painted it to be.)Report

          • Avatar gregiank says:

            @Jaybird, why of course because rights can have limits on them that obviously means i support any evil thing that has ever been done….yeah that makes sense. I think its easy to posture and preen about rights. But i don’t think there is anyway around the fact that the constitution did not lay out every single thing that is okay and not okay. That means we have to think about and figure some things out. Not everything we disagree about or don’t like is a constitutional violation. It seems like every thing you disagree with is somehow the road to a gulag or against the constitution. So you can say that because i feel that rights can have limits at times, which is not particularly controversial i’m okay with waterboarding even though i’m not. Then i can say you are for people growing their own strain of Ebola since the constitution does not say the gov can limit that. But how does that debate get anywhere.Report

            • Avatar Jaybird says:

              @gregiank, can you see how your exact (EXACT!) argument could be used to justify torture?

              As such, does it not trouble you?

              I’d rather err on the side of not torturing, not censoring, not sterilizing, and not imprisoning people for handing out pamphlets even at the cost of people shouting “fire” in a crowded theater.

              Maybe if there were too many people shouting “fire”, I’d have a different opinion… but, being reasonable and all, I think that far, far, far, far more damage has been done by the people trying to protect me from folks shouting “fire” than by the “fire” shouters.

              I’d rather try to take my chances with that, for a while.Report

  13. Avatar gregiank says:

    @Jaybird- fair enough, however i’m interested in how to try make this country work well, not just in avoiding the worst errors. If somebody wants to torture they will find a reason. Potential evil doers don’t get to the brink of doing their deed then suddenly stop and exclaim ” curses foiled again….we can’t come up with a reasonable constitutional valid way of being evil…..well back to working for BP.” Bad guys always have an excuse. Every good and noble idea can be co-opted.Report

    • Avatar Jaybird says:

      @gregiank, and I’d rather scream about how waterboarding violates the 8th and come off like a nut than be a reasonable person who acknowledges that the Founding Fathers could not possibly have foreseen Islamic terrorism.Report

      • Avatar gregiank says:

        @Jaybird, well i’m glad you agree with me on that then.Report

        • Avatar Jaybird says:

          @gregiank, what justification do you use?

          I’m guessing it has nothing to do with the 8th.Report

          • Avatar gregiank says:

            @Jaybird, why can’t i use the 8th, is it already taken? This might surprise you but i think some punishments are peachy kean……i know , i know, thats just how i am, i’m okay with punishment.Report

            • Avatar Jaybird says:

              @gregiank, I didn’t say that you *CAN’T*.

              I was just wondering why you would.

              Do you honestly feel like you have firm footing using the 8th against waterboarding?

              What if someone says “well, you have to understand, it’s not ‘cruel and unusual’, besides, we’re doing it to save lives, you have to draw a line somewhere, you draw it there, I draw it here…” and so on?Report

  14. Avatar gregiank says:

    @jay-there are always lines that have to be drawn. Waterboarding is wrong. But wouldn’t you say some questioning is reasonable. At what point do think “reasonable” punishment becomes cruel. It doesn’t spell it out in the Constitution. So you have to draw a line someplace. Some things are going to be allowed and some aren’t. Is 20 years to much for murder? is that cruel? how about death for murder? How about whipping somebody to death? How about 5 years for murder?

    Even you draw lines and make decisions.Report

    • Avatar Jaybird says:

      @gregiank, so do you feel like you have firm footing when you stand on the 8th?Report

      • Avatar gregiank says:

        @Jaybird, I have my hands securely at 10 and 2 on the 8th.

        How do you justify making the judgments you do when you so quickly disparage others judgments?Report

        • Avatar Jaybird says:

          @gregiank, I’m *NOT* disparaging your judgments.

          I’m boggling at them.

          It goes from saying well, the 2nd obviously doesn’t mean *THAT*, and, while we’re at it, the 1st doesn’t protect *THAT* either… but, sure, the 8th *TOTALLY* puts limits on the government with regards to waterboarding.

          I don’t see how you can do that.

          I can see how someone might say that the Amendments don’t mean much in a modern world with the internet and everything.

          I can see how someone might say that we need to burn the Constitution every 20 years and come up with new Amendments for each generation.

          I can see how someone might say “we need to take as extreme an interpretation of each Amendment as we can in order to protect liberty.”

          I can’t see how someone can, quite reasonably, point out the limits of the first, the limits of the 2nd, so on and so forth and then, suddenly, decide that, oh no, we can’t waterboard KSM. That’s an obvious violation!

          Surely you must admit that reasonable people can reach the conclusion that waterboarding KSM does not violate a reasonable interpretation of the 8th, given the circumstances in which we find ourselves.

          Can you?

          I don’t see how you can. Explain it to me.Report

          • Avatar gregiank says:

            @Jaybird, I’m not sure how to say something i’ve already said in various ways. Rights exist but they can be limited for the ….ummmm …General Welfare and when its Necessary and Proper….

            The various rights which we have are not detailed lists of what is and what isn’t. So our task in trying to run a democracy is to understand what they mean and how to put them in practice. What does cruel and unusual punishment mean? Does your copy of the constitution list exactly what is and isn’t allowed? So it is up to us to figure it out. Not only that we will always have disagreements and somebody will always feel something is to cruel or not cruel enough.

            I’m not an absolutist. You are. That seems to be the fundamental divide. I’m not sure how to bridge that although i’m sure we can get this thread past 200 posts trying.Report

  15. Avatar gregiank says:


    Let me try it this way. You seem to be applying a slippery slope to everything i say. so if i say maybe A is a reasonable reg then you are hitting the slip’n’slide down to way Z must be okay. First i think slippery slope arguments are a fallacy. Just because i think A is okay does not mean in any way i think Z is okay. they are qualitatively different. So i may think some guns regs are fine, i do not think it is fine to outlaw guns. Those are qualitatively different arguments. Slippery slope arguments usually also involve changing the subject, so i say A and you start talking about Z. If the only way you can argue against A is by invoking Z then you don’t have an argument.

    Secondly, as i’ve said and i don’t think you have answered, how do you draw the lines on what is okay and what isn’t. The 2nd says the right to bare arms shall not be infringed. There is no footnote that says the gov can fringe away at tubed artillery and guided AA missiles. The 8th says no cruel and unusual, so how do you draw the lines. The thing i find empty about much of your argument is that you are avoiding the question of how to draw those lines. There is no way to avoid drawing those lines since the constitution does not list every darn thing that is okay. So how do you do it? That seems to be the most pertinent question until the reanimated corpses of the founders reappear to really confuse everythign. You are just raising questions without showing how you would answer them.

    FWIW- simulating death seems pretty clearly cruel.Report

    • Avatar Jaybird says:

      @gregiank, I’m not saying that you are wrong to draw the line where you’re drawing it, Greg.

      It’s perfectly reasonable.

      We all agree that it’s perfectly reasonable to draw the line where you drew it.

      I’m wondering if you agree that it’s perfectly reasonable to draw it elsewhere or if where you drew it is the only place that it makes sense for a reasonable person to draw.

      As for your question for me, I think that liberty is seated in the individual and that the government needs to always have an uphill battle whenever it tries to remove the liberty of a person and, indeed, there are some things that are out of its jurisdiction entirely and, as such, ought not be options at all.

      For me, the question is always “would I have the right to force you at gunpoint to X?”

      If I would not, I don’t see how the government gets the right to hold a gun on someone and force them, at gunpoint, to X.

      That’s how I draw the line.

      And so, once again, I’ll ask you:

      Is where you drew the line the only place where you see it reasonable to draw it? Do you allow for a reasonable person to come to the conclusion that, hey, the government needs to waterboard this guy?

      For the sake of the preventing a second 9/11, for example?

      (Oh, by the way, I think I answered your question there. Lemme know if I haven’t.)Report

      • Avatar ThatPirateGuy says:


        I always get a funny feeling when “government pointing a gun at you” argument comes up with libertarians.

        Chiefly because I wouldn’t shoot an unarmed man stealing a loaf of bread from my convenience store but I’m pretty sure that it should be illegal.

        (Convenience store is purely hypothetical.)Report

        • Avatar Jaybird says:

          @ThatPirateGuy, I don’t know that I’d shoot… but I’d certainly not feel bad about yelling “Freeze” and making him put the bread back.

          Hell, if he’s got a hard luck story, I can give him 5 bucks for a loaf of his own.Report

  16. Avatar gregiank says:

    Well of course people disagree. That is part of democracy. It’s also why i find so much of discussions about the constitution high grade wankery, we’re going to disagree and none of has access to ultimate truth. ( tea party people and glen beck i’m looking at you). Good and decent people disagree all the time.

    “As for your question for me, I think that liberty is seated in the individual and that the government needs to always have an uphill battle whenever it tries to remove the liberty of a person and, indeed, there are some things that are out of its jurisdiction entirely and, as such, ought not be options at all.” I’m pretty much fine with this although i’m sure we would disagree on specifics.

    I’m generally against the hyperbole of today. So i don’t like to shout about how this person or that person is a horrible person because they believe X. Even when then X is torture. On the other hand i have almost no tolerance for people advocating torture.

    “For me, the question is always “would I have the right to force you at gunpoint to X?”

    If I would not, I don’t see how the government gets the right to hold a gun on someone and force them, at gunpoint, to X.”

    I’m not really sure how this applies to much of what gov does. Do you have a right to imprison someone for life? If owning a stinger is illegal then who should oversee that no one gets one?

    I don’t think i have any ability to tell an airline how and when to do maintenance on their planes. However i think somebody who knows what the hell they are talking about should do that. So i am all for the FAA metaphorically holding a gun to an airline even though i can’t and shouldn’t. We give gov some powers to do things because we as individuals can’t do it.Report

    • Avatar Jaybird says:

      @gregiank, “Do you have a right to imprison someone for life?”

      I would say that the answer is obviously “no”. Certainly not with the rape factory prisons we have today. (I wrote an essay on this, actually!) Prison, as it exists in the US, is a Human Rights Abuse.

      “If owning a stinger is illegal then who should oversee that no one gets one?”

      Would you be willing to shoot someone that terrified you because they had a stinger? If you aren’t, why do you think that someone else should on your behalf?Report

      • Avatar gregiank says:

        @Jaybird, Because i think there is a good, dare i say reasonable, argument that Stingers should be illegal. Duck hunters be damned. I want to outsource the stinger policing to guys ( or girls) with authoritarian tendencies and sharp crew cuts to police that for me.Report

        • Avatar Jaybird says:

          @gregiank, I imagine that outsourcing such things to people with certain haircuts makes a lot of stuff a lot easier.

          Not just stingers, but, in Chicago, they managed to make handguns themselves illegal.

          As time goes on, you can even get those with such haircuts to see themselves as fighting a war with you (and me) as civilians.

          And, eventually, punching chicks in the face for jaywalking.



          • Avatar gregiank says:

            @Jaybird, i don’t think i invented the idea of having gov serve certain functions and to perform those functions it gets certain powers citizens don’t have.Report

  17. Avatar Rob says:

    Too much talk about over throwing tyrants, ect… At the time the Constitution was drafted it was also considered your right, and duty to protect yourself from those who would harm you. Those who would harm you are criminals, you as an honest citizen, have a duty to protect yourself, and through that society at large, by stopping those who would harm you. Then, as now, the greatest equalizer of force between different humans is a fire arm.

    Ignoring suicide, which is irrelevant to any “control” argument, the next largest portion of gun violence is drug related. Legalizing marijana alone could have a noticeable impact on the amount of violent drug crime, and save some money in the failed “war” on drugs.Report