Repeal the Second Amendment, says former Justice Stevens.

ml1 said:

that's a ridiculous analogy 

Though if I’m reading it right, it sounds like an acknowledgment that even a natural right like procreation is subject to constraints in a civil society.

DaveSchmidt said:

ml1 said:

that's a ridiculous analogy 

Though if I’m reading it right, it sounds like an acknowledgment that even a natural right like procreation is subject to constraints in a civil society.

Indeed

ml1 said:

Jackson_Fusion said:

but am ever willing to hear how the means of self defense (“arms”, in the Constitution’s formulation) may be barred under natural law or rights.

I never suggested banning guns. So I don't have an an answer for that. 

But if owning  a gun is a natural right, doesn't that mean every person should be allowed to have one with them at all times?  Even children, felons and all the people in the room with the president? 

Prohibitions on any number of things should be easily understood for children, as their protection, by necessity, falls to others: their guardians. Felons as you point out are the thorny- essentially jurisprudence in the West has held that it’s OK to prohibit possession of weapons as a portion of punishment for crime. 

There is a real question of how long that should last- but if a criminal can be deprived of life as punishment (he can) he certainly can be disarmed. 

Notice however he is disarmed by virtue of his actions, not station.

I seem to recall however that there is a carve out for felons who come in possession of a weapon quite by chance in a moment of mortal danger- for example, he takes a gun from someone trying to shoot him and skedaddles with it right into the arms of police... he’s cool. However, he would have to show (as in that example) he had no choice in coming in possession of that weapon except getting shot. 

That’s actually a pretty good if extreme example of natural rights- no matter what laws man has put on that guy, he has a right to protect himself, even if it means taking a gun off someone in the moment to do it- broke man’s law, but well within his natural rights.

The NRA has something on it's side that we don't.  The irrational fear of the boogieman.  Whether it be African Americans, or the Mexican cartels, or the Zombie apocalypse.  Some of these folks in exurbia are hunkered down getting ready for a war.  Why else would you stockpile multiple AR-15's. 

Jackson_Fusion said:

 Felons as you point out are the thorny- essentially jurisprudence in the West has held that it’s OK to prohibit possession of weapons as a portion of punishment for crime. 

There is a real question of how long that should last- but if a criminal can be deprived of life as punishment (he can) he certainly can be disarmed. 

Notice however he is disarmed by virtue of his actions, not station.

Can he be punished after he serves his prison term by still being prohibited from owning a gun?

Even during his prison term he cannot be punished by restricting his Freedom of Religion. So the Right to Bear Arms of the Second Amendment is very different from the Freedom of Religion of the First Amendment.

RealityForAll said:

ml1, I believe the right to procreate is a natural right.  

The Courts have not always agreed:

U.S. Supreme Court[edit]

Buck v. Bell, 274 U.S. 200 (1927), is a decision of the United States Supreme Court, written by Justice Oliver Wendell Holmes, Jr., in which the Court ruled that a state statute permitting compulsory sterilization of the unfit, including the intellectually disabled, "for the protection and health of the state" did not violate the Due Process clause of the Fourteenth Amendment to the United States Constitution.

Skinner v. State of Oklahoma, ex. rel. Williamson', 316 U.S. 535 (1942),^[1] was the United States Supreme Court ruling that held that laws permitting the compulsory sterilization of criminals are unconstitutional if the sterilization law treats similar crimes differently.^[2] The relevant Oklahoma law applied to "habitual criminals," but the law excluded white-collar crimes from carrying sterilization penalties. The Court held that treating similar crimes differently violated the Equal Protection Clause of the 14th Amendment.^[1]

Stump v. Sparkman, 435 U.S. 349 (1978), is the leading United States Supreme Court decision on judicial immunity. It involved an Indiana judge who was sued by a young woman who had been sterilized without her knowledge as a minor in accordance with the judge's order. The Supreme Court held that the judge was immune from being sued for issuing the order because it was issued as a judicial function. The case has been called one of the most controversial in recent Supreme Court history.^[3]

U.S. District and Appellate Courts[edit]

In 2007 the United States Court of Appeals for the District of Columbia Circuit heard Doe ex. rel. Tarlow v. District of Columbia. The Court upheld a 2003 District of Columbia statute that stated the conditions for authorizing a non-emergency surgical procedure on a mentally incompetent person.^[4] Under the Appellate Court's interpretation of the statute, a court located in the District of Columbia, must apply the "best interest of the patient" standard to a person who was never competent, and the court must apply the "known wishes of the patient" standard to a person who was once competent.

In the 2001 case of Vaughn v. Ruoff, a husband and wife sued three social workers for coercing his wife, "diagnosed as mildly retarded," into getting a sterilization as a condition for getting their children back from state custody.^[5] The United States Court of Appeals for the Eighth Circuit held that the social workers did not have sovereign immunity and could be sued for violating the couple's Fourteenth Amendment right because the procedural due process requirements for performing a sterilization are clearly established by Buck v. Bell and were not met in this case.^[5]

In 1975, the United States Court of Appeals for the Fourth Circuit decided the statute of limitations for a lawsuit challenging the legality of a sterilization begins to accrue when the plaintiff discovers the sterilization.^[6]

Poe v. Lynchburg Training School & Hospital concerned whether or not patients who had been involuntarily sterilized in Lynchburg Training School and Hospital, a state mental institution in Virginia, as part of a program of eugenics in the early and mid-20th century had their constitutional rights violated.^[7]

LOST said:

Jackson Fusion says "natural rights" and "human rights" are different. I really do not understand what rights fall into which categories and what the difference is.

I decided to find out.

https://www.dailysignal.com/2011/12/19/are-human-rights-the-same-as-natural-rights/

Natural rights are negative rights.  These are the rights that compel others to not infringe upon.  These are rights that we have as human beings. I think these have ethical and philosophical roots.  Adam and Eve did have these rights.  They didn't have a right to bear arms or freedom of the press, as they didn't exist at that time.  However, they did have the right to defend their person from harm, and the freedom to express themselves as they were human.

The rights that are "what we as a society say they are" are positive rights.  These are the rights that compel someone else to take action.  In other words, these rights compel others to do something for you or there will be an infringement.  These are the rights that most speak about today as we have lost our way.  

I'm with Lost in that repeal of one of our 10 amendments sets an awful precedent. These 10 amendments were superfluous as the federal government was only supposed to have the powers specifically outlined in the Constitution.  That being said, they are symbolic. Overturning any of these seems like a really bad idea.  

Someone explain to me again what would be so bad about repealing the 2nd amendment?

As to losing our way - if we limited ourselves to just "negative" rights, we wouldn't have very many. Is there anything in the bill of rights that is not "positive"?

Anyway, it seems to be the opposite of losing our way.

eta: the Bill of Rights is superfluous and symbolic? What an odd way to describe for something that is in fact central to the very existence of the US. Maybe I'm misunderstanding you.

I think superfluous (referred to in terp's post and referenced by you in your post) is meant to signify the fact that the federal government's powers are supposed to be limited by the specific powers set forth in the Constitution and by the X Amendment (however, the expansion of the Commerce Clause has largely eliminated restraints on the power of federal government).  

Additionally, if the right to bear arms is truly an inalienable right then the repeal of the 2nd Amendment would arguably NOT affect the right to bear arms (or perhaps minimally) as the definition of an inalienable right is a right that CANNOT be removed (or alienated) from the people.  If inalienable rights, such as the right to bear arms, are truly inalienable then the 2nd Amendment is indeed superfluous.  However, I would  not support the repeal of the 2nd amendment.

drummerboy said:



eta: the Bill of Rights is superfluous and symbolic? What an odd way to describe for something that is in fact central to the very existence of the US. Maybe I'm misunderstanding you.

Do you think Adam an Eve had the right to gain knowledge by eating the apple?

terp said:

Natural rights are negative rights.  These are the rights that compel others to not infringe upon.  These are rights that we have as human beings. I think these have ethical and philosophical roots.  Adam and Eve did have these rights.  They didn't have a right to bear arms or freedom of the press, as they didn't exist at that time.  However, they did have the right to defend their person from harm, and the freedom to express themselves as they were human.

The rights that are "what we as a society say they are" are positive rights.  These are the rights that compel someone else to take action.  In other words, these rights compel others to do something for you or there will be an infringement.  These are the rights that most speak about today as we have lost our way.  

I'm with Lost in that repeal of one of our 10 amendments sets an awful precedent. These 10 amendments were superfluous as the federal government was only supposed to have the powers specifically outlined in the Constitution.  That being said, they are symbolic. Overturning any of these seems like a really bad idea.  

RealityForAll said:

I think superfluous (referred to in terp's post and referenced by you in your post) is meant to signify the fact that the federal government's powers are supposed to be limited by the specific powers set forth in the Constitution and by the X Amendment (however, the expansion of the Commerce Clause has largely eliminated restraints on the power of federal government).  

Additionally, if the right to bear arms is truly an inalienable right then the repeal of the 2nd Amendment would arguably NOT affect the right to bear arms (or perhaps minimally) as the definition of an inalienable right is a right that CANNOT be removed (or alienated) from the people.  If inalienable rights, such as the right to bear arms, are truly inalienable then the 2nd Amendment is indeed superfluous. 

drummerboy said:



eta: the Bill of Rights is superfluous and symbolic? What an odd way to describe for something that is in fact central to the very existence of the US. Maybe I'm misunderstanding you.

The right to a particular type of weapon is not an "inalienable right".

Never mind the fact that cross-referencing phrases from the Declaration and the Constitution isn't always easy, or even a useful discussion.

That's more of a theological question.  I think that eating the apple is what made them human. 

bub said:

Do you think Adam an Eve had the right to gain knowledge by eating the apple?

terp said:

Natural rights are negative rights.  These are the rights that compel others to not infringe upon.  These are rights that we have as human beings. I think these have ethical and philosophical roots.  Adam and Eve did have these rights.  They didn't have a right to bear arms or freedom of the press, as they didn't exist at that time.  However, they did have the right to defend their person from harm, and the freedom to express themselves as they were human.

The rights that are "what we as a society say they are" are positive rights.  These are the rights that compel someone else to take action.  In other words, these rights compel others to do something for you or there will be an infringement.  These are the rights that most speak about today as we have lost our way.  

I'm with Lost in that repeal of one of our 10 amendments sets an awful precedent. These 10 amendments were superfluous as the federal government was only supposed to have the powers specifically outlined in the Constitution.  That being said, they are symbolic. Overturning any of these seems like a really bad idea.  

I think that's right RFA.   My understanding is that Madison only added the Bill of Rights as a political gesture.  Also, I think that Jefferson wanted it there as a guard rail.  It would be something people could point to if the executive were to infringe upon those rights.  

However, Madison did think that it was implicit in the Constitution that the Government could not infringe upon these rights.  Thus, to him the Bill of Rights was redundant. 

RealityForAll said:

I think superfluous (referred to in terp's post and referenced by you in your post) is meant to signify the fact that the federal government's powers are supposed to be limited by the specific powers set forth in the Constitution and by the X Amendment (however, the expansion of the Commerce Clause has largely eliminated restraints on the power of federal government).  

Additionally, if the right to bear arms is truly an inalienable right then the repeal of the 2nd Amendment would arguably NOT affect the right to bear arms (or perhaps minimally) as the definition of an inalienable right is a right that CANNOT be removed (or alienated) from the people.  If inalienable rights, such as the right to bear arms, are truly inalienable then the 2nd Amendment is indeed superfluous.  However, I would  not support the repeal of the 2nd amendment.

drummerboy said:



eta: the Bill of Rights is superfluous and symbolic? What an odd way to describe for something that is in fact central to the very existence of the US. Maybe I'm misunderstanding you.

On the idea of inalienable rights, I'd be hesitant to throw out the concept. It undergirds quite a lot of liberal thinking after all, particularly classic 20th century liberalism, eg the Universal Declaration of Human Rights. I'm not convinced this is directly relevant to the second amendment though. Granted I'm not a deep student of the Bill of Rights, but it was my impression that the language of "inalienable rights" is centered more in the Declaration (life, liberty, and the pursuit of happiness) and not necessarily the Constitution or its amendments.

If we are going to apply it to the second amendment though, I'd argue that while the right to defend oneself is an alienable right, the particular mechanism one chooses to do so with is not. Defense does not automatically mean weapons, much less an embrace of weapons of such power they undermine the rights of others to enjoy life, liberty, and the pursuit. IOW - there's no alienable right to AR-15s by any reasonable argument, and in any case the right to be safe and free from the threat of massacre by AR-15 certainly should trump one's right to own one.

Even if, for argument, we were to say that the second amendment does see guns as an alienable, individual right, though, I'd argue that the founders were in this case simply wrong. One doesn't have to reject the idea of inalienable rights to disagree on what those particular rights are.

Finally, on the Justice Steven's proposal, I'd argue that a political moment strong enough to overturn the second amendment is equally strong enough to simply re-interpret the amendment in a more restrictive way. I don't see the need to repeal amendments -- I do see an urgent need for better jurisprudence around it. Heller was wrong, but does not require repeal to right it.

personally, I haven't advocated for the banning of firearms. I haven't seriously advocated for the repeal of the 2nd Amendment.  I do think repealing it and replacing it with clear, 21st century language would be helpful.  The fact that the amendment as written can be interpreted by reasonable people in different ways is problematic.  But we don't need repeal to pass laws that will allow people to have guns, within reasonable parameters.

I've also not disputed that people have a right to defend themselves.  But our country as gone well past self-defense as reason for owning firearms.  How many guns, and how much ammunition do people need to defend themselves and their homes?  In some states, you can buy a rifle through social media (https://www.nytimes.com/2018/04/02/magazine/gun-culture-is-my-culture-and-i-fear-for-what-it-has-become.html).  Should anyone be able to sell a gun the way you sell a used coffee table?

Maybe the threat to repeal the 2nd Amendment will prompt responsible gun owners to push back on the NRA and accept some boundaries around gun ownership that are compatible with the 2nd Amendment.  The right to self-defense and the right to a firearm should come with responsibilities too.  

Sorry for the selective quote, but if the point of the second amendment was to appease those that did not trust a standing army, then the 2nd amendment has certainly outlived its usefulness. We certainly do have a standing army, and I personally trust our standing army a lot better than individual gun owners. And even if that wasn't the case, then we would have to give individual gun owners the right to have nuclear weapons. The precise way that the 2nd amendment is written already proves it is out-dated. It should be repealed.

nohero said:

In his book “The Quartet”, historian Joseph Ellis discusses Madison’s work at the time that the Founders were still working out how the new government would operate:

But there is no question that Madison was the “Father of the Bill of Rights.”  He wrote the first draft single-handedly, ushered it through the House, and negotiated with leaders in the Senate as they reduced the seventeen amendments proposed by the House to twelve.
…
Finally, under the rubric of his proposed fourth amendment, Madison wrote the following words: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” This eventually, after some editing in the Senate, became the Second Amendment to the Bill of Rights, and its meaning has provoked more controversy in our own time than it did in 1789.

Madison was responding to recommended amendments from five states, calling for the prohibition of a permanent standing army on the grounds that it had historically proven to be an enduring thread to republican values.  It is clear that Madison’s intention in drafting his proposed amendment was to assure those skeptical souls that the defense of the United States would depend on state militias rather than a professional, federal army.  In Madison’s formulation, the right to bear arms was not inherent but derivative, depending on service in the militia.

The 2nd exists because for a person to be free they can’t be deprived of the means of preserving that freedom. We are blessed that, today, we are not in a position to need arms to defend against a tyrannical government or political movement. There are millions of dead from just the last 100 years who would envy us that. Many (most?) of them did not expect things to go as they did, killed by their own government and in many cases neighbors.

Oh, I say this knowing that the usual mocking from the usual suspects will come, but I’ll point at the dead millions and ask, “was there something inherently inferior about those people, some flaw they possessed that we do not that allowed them to be laid so low? Or was there a special wickedness of blood in their persecutors?”

I don’t see any. If someone does, share.

Their were on the “losing team” as far as the majority in power were concerned. Being in that minority ended up, by virtue of birth in most cases, a death sentence.

Hopefully, as a society we continue to prize the value of the individual and preserve her rights. But if a society is lulled into a state of torpor and allows itself to be disarmed entirely and it turns out to be a mistake, it is a mistake it will be have the opportunity to make just once.

Remember, the majority doesn’t need arms. Why would it?

Nice story, but fully made up. The 2nd amendment itself says why it exists: A well regulated militia being necessary to the security of a free state. It's to keep the US a free state. No more, no less. So anyone saying that the 2nd amendment exists so that: we can hunt rabbits, defend ourselves against our neighbors, or defend ourselves against police officers that kill us because of our race, is simply making this up. Sorry.

Jackson_Fusion said:

The 2nd exists because for a person to be free they can’t be deprived of the means of preserving that freedom. We are blessed that, today, we are not in a position to need arms to defend against a tyrannical government or political movement. There are millions of dead from just the last 100 years who would envy us that. Many (most?) of them did not expect things to go as they did, killed by their own government and in many cases neighbors.

Oh, I say this knowing that the usual mocking from the usual suspects will come, but I’ll point at the dead millions and ask, “was there something inherently inferior about those people, some flaw they possessed that we do not that allowed them to be laid so low? Or was there a special wickedness of blood in their persecutors?”

I don’t see any. If someone does, share.

Their were on the “losing team” as far as the majority in power were concerned. Being in that minority ended up, by virtue of birth in most cases, a death sentence.

Hopefully, as a society we continue to prize the value of the individual and preserve her rights. But if a society is lulled into a state of torpor and allows itself to be disarmed entirely and it turns out to be a mistake, it is a mistake it will be have the opportunity to make just once.

Remember, the majority doesn’t need arms. Why would it?

gerritn:  you seem very adamant that your interpretation of the 2nd amendment is correct.  How is it that you are so sure that your interpretation is so correct?  I will admit I have my POV on the 2nd Amendment.  However, I am willing to accept that others' interpretation may be different from mine.  I am hopeful that you may be willing to look at other's 2nd Amendment POVs also.

As a result, I have attached a copy of two sentence diagrams of the 2nd amendment.  Please note, one diagram does not deal with the well regulated militia clause.  However, the first diagram does deal with entire 2nd amendment.  Take a look at the diagrams and let me know whether you agree that "right" is the subject of the 2nd A. and "shall be" is the controlling verb in the 2nd A.  If not, let me know how you would change the diagram or analysis of the subject and verb in the 2nd Amendment.

gerritn said:

Nice story, but fully made up. The 2nd amendment itself says why it exists: A well regulated militia being necessary to the security of a free state. It's to keep the US a free state. No more, no less. So anyone saying that the 2nd amendment exists so that: we can hunt rabbits, defend ourselves against our neighbors, or defend ourselves against police officers that kill us because of our race, is simply making this up. Sorry.

Jackson_Fusion said:

The 2nd exists because for a person to be free they can’t be deprived of the means of preserving that freedom. We are blessed that, today, we are not in a position to need arms to defend against a tyrannical government or political movement. There are millions of dead from just the last 100 years who would envy us that. Many (most?) of them did not expect things to go as they did, killed by their own government and in many cases neighbors.

Oh, I say this knowing that the usual mocking from the usual suspects will come, but I’ll point at the dead millions and ask, “was there something inherently inferior about those people, some flaw they possessed that we do not that allowed them to be laid so low? Or was there a special wickedness of blood in their persecutors?”

I don’t see any. If someone does, share.

Their were on the “losing team” as far as the majority in power were concerned. Being in that minority ended up, by virtue of birth in most cases, a death sentence.

Hopefully, as a society we continue to prize the value of the individual and preserve her rights. But if a society is lulled into a state of torpor and allows itself to be disarmed entirely and it turns out to be a mistake, it is a mistake it will be have the opportunity to make just once.

Remember, the majority doesn’t need arms. Why would it?

ETA:  never mind.

I was commenting on the pre-edited post.

Hahaha! Diagramming sentences. People don't do that anymore YourRealityForAll. You will never convince anyone with diagramming of sentences.

Given the high degree of confidence you have in your level of constitutional scholarship, perhaps you can help me understand part of your argument.

You believe the 2nd Amendment, contained in the Bill of Rights, is intended to keep the United States free from what? 

Does the 2nd amendment, in a complete shift from the rest of the Bill of Rights, acknowledge not a right that belongs to citizens but instead assert a right of government? Against whom would that government be asserting its rights against? Itself?

Appreciate your thoughts on this.

gerritn said:

Nice story, but fully made up. The 2nd amendment itself says why it exists: A well regulated militia being necessary to the security of a free state. It's to keep the US a free state. No more, no less. So anyone saying that the 2nd amendment exists so that: we can hunt rabbits, defend ourselves against our neighbors, or defend ourselves against police officers that kill us because of our race, is simply making this up. Sorry.

Jackson_Fusion said:

The 2nd exists because for a person to be free they can’t be deprived of the means of preserving that freedom. We are blessed that, today, we are not in a position to need arms to defend against a tyrannical government or political movement. There are millions of dead from just the last 100 years who would envy us that. Many (most?) of them did not expect things to go as they did, killed by their own government and in many cases neighbors.

Oh, I say this knowing that the usual mocking from the usual suspects will come, but I’ll point at the dead millions and ask, “was there something inherently inferior about those people, some flaw they possessed that we do not that allowed them to be laid so low? Or was there a special wickedness of blood in their persecutors?”

I don’t see any. If someone does, share.

Their were on the “losing team” as far as the majority in power were concerned. Being in that minority ended up, by virtue of birth in most cases, a death sentence.

Hopefully, as a society we continue to prize the value of the individual and preserve her rights. But if a society is lulled into a state of torpor and allows itself to be disarmed entirely and it turns out to be a mistake, it is a mistake it will be have the opportunity to make just once.

Remember, the majority doesn’t need arms. Why would it?

gerritn had quoted my earlier post, which had text from a historian about the drafting of the Second Amendment.  I think that text is self-explanatory. 

If someone disagrees about the purpose being related to the militia, I don't think sentence diagrams or 21st century readings of 18th century syntax is enough to overcome that historical record.

For those who say these discussions don't change minds, this exchange has definitely made me rethink my idea of what the original intent of the 2nd Amendment was.  I was always one to believe that it was intended for every person to own a firearm if they choose.  Now, the more I read the actual text, put it in the context of how people wrote in the 18th century, and what those terms meant, the less I'm convinced of that.  The amendment really does seem to specifically mean that the people should be able to arm themselves to be part of a "well-regulated" state militia.  Not for anybody to just run down to the storee and buy themselves a rifle.  The passages from historians and linguists are more persuasive to me than anything I've read from lawyers.

nohero said:

gerritn had quoted my earlier post, which had text from a historian about the drafting of the Second Amendment.  I think that text is self-explanatory. 

If someone disagrees about the purpose being related to the militia, I don't think sentence diagrams or 21st century readings of 18th century syntax is enough to overcome that historical record.

I am fairly sure gerritn can respond for him/herself. I missed the Ellis driven commentary and hadn’t heard of him since he lost his chair for telling tales about his personal actions (or inactions) that were made up. Had to google to be sure it was the same guy. Guess he’s still around.

In any case, he’s a historian with a view. There are thousands of em.

RealityForAll said:

Take a look at the diagrams and let me know whether you agree that "right" is the subject of the 2nd A. and "shall be" is the controlling verb in the 2nd A.  If not, let me know how you would change the diagram or analysis of the subject and verb in the 2nd Amendment.

Gerritn can respond for him/herself, but I’d like to take the opportunity in this public discussion to add that the subject and the verb are not in question. What’s disputed is the function of what Beatrice Smith, the founder of the Second Amendment Committee (there’s only one of them), labeled a nominative absolute.

A nominative absolute is a noun phrase that begins or ends a sentence. The phrase has no grammatical connection with the rest of the sentence. Most nominativeabsolutes contain a participle or participial phrase which modifies the noun or pronoun.

Nominative Absolute - English Plus

DaveSchmidt said:

RealityForAll said:

Take a look at the diagrams and let me know whether you agree that "right" is the subject of the 2nd A. and "shall be" is the controlling verb in the 2nd A.  If not, let me know how you would change the diagram or analysis of the subject and verb in the 2nd Amendment.

Gerritn can respond for him/herself, but I’d like to take the opportunity in this public discussion to add that the subject and the verb are not in question. What’s disputed is the function of what Beatrice Smith, the founder of the Second Amendment Committee (there’s only one of them), labeled a nominative absolute.

I believe that “no grammatical connection” simply means the rest of the sentence can stand alone grammatically. That is, it can be read as a sentence without the nominative absolute. This would not be the same as saying the clause was merely prefatory or superfluous in governing the meaning of that grammatically independent part of the sentence.

I am not exactly sure what I am responding to. It's only one sentence, and it says "because we need an army to defend our state, people have a right to bear arms".