Finally Some Thoughts on the The DC Gun Case

[countalpicola]

Originally published at The Mouse's Tale. You can comment here or there.

Well, it took me long enough, but I think I finally made up my mind about DC v. Heller. Despite everyone on both sides of the issue being absolutely convinced of the correctness of their positions, I actually found this case to be pretty hard. Much to my pleasant surprise,

Comments

[vorkon]

Is it wrong that when I first skimmed over this entry, I thought to myself, "Hey, why would a comic book company be suing someone over having a gun?"

To be fair, though, I just woke up, and am a complete idiot whenever I wake up. >.>

In similar news, this has reminded me that I couldn't help but think about you when I saw how the Supreme Court had ruled the death penalty totally badass.Anyway, that being said, while I don't think it is fair (or even completely possible) to separate this issue from its historical context, I do agree with your interpretation of the amendment. It describes why the individual right is necessary, and then goes on to actually give the individual right in question. Essentially, they realized that the most effective way to ensure the goal (being able to form a militia) could be met was to not allow citizens to be disarmed. The individual right is explicitly given, but the intent was also described to allow some small degree of regulation over such potentially dangerous items, so long as the individual

[izuko]

Anyway, that being said, while I don't think it is fair (or even completely possible) to separate this issue from its historical context

While it's not fair, a textualist view (as opposed to a strict constructionalist) says that the Constitution is complete, unto itself, and required no outside source. It's not a bad view to take. However, it really does require one to not look too deeply into the words. If you insist on looking too deeply, you can spin the words to mean whatever you want it to mean. Hell, you can probably make Dick and Jane into some sort of kiddy porn story.

Thus a contextualist view also requires a willingness to hit the brakes before you go flying off the bridge.

[izuko]

Why do you insist on casting shadow where the founding fathers shed light? The amendment is fairly simple when you read it textually. It's only when you start interpreting things into it, that it gets fuzzy

[countalpicola]

Been a little busy lately so this response is a bit late, but I've been meaning to make it for a bit now, so here we go.
As for your suggestion that the amendment doesn't protect the right to keep and bear arms of the owner's choice, I'd have to say you're rather blinkered on that one. "Shall not be infringed." If you say I can't have my Sig, KelTec, or Glock because DC has decided that semi-automatic firearms are verboten (which is exactly what they're doing with their post-Heller re-write of the law), then you are infringing. Why is it that you think the founders chose such forceful language for that?

There are a few problems, actually, with calling any of that infringement even if we accept Heller's view of the Second Amendment

[izuko]

Beginning with the text, it would be remarkable if "arms" could be fairly read to actually mean "particular arms." In every sense in which the word "arms" can be fairly read, it is a collective term.

It is a general term. By arms, they meant just that - each and every weapon. They chose a blanket term like "arms" for a blanket prohibition on infringement. They left the wording as open as possible so that no arms could be excluded by the government.

Unlike "the people" which can be fairly replaced in the text with "every particular individual" wherever it shows up in the text of the Bill of Rights, trying to replace "arms" with "every particular weapon" yields a statement which is absurd on its face.

How is it absurd on its face? When the Constitution was written, what type of arm do you think they wished to ban or exclude from second-amendment protection? I submit to you that this absolute prohibition on infringement of any type was exactly what they intended.

As for the issues with Miller that you bring up, they really do

[countalpicola]

How is it absurd on its face?

By "every particular weapon" I truly mean every particular weapon. "Glock" as a type of weapon is a class of arms. "Glock: Serial no. 33462" is a particular weapon.

When the Constitution was written, what type of arm do you think they wished to ban or exclude from second-amendment protection?

When the Constitution was written, nobody thought that the federal authority extended to causing any sort of disarmament whether the Second Amendment existed or not. It was passed mostly to pacify the fears of the antifederalists who believed that the federal authority to arm and discipline the militia might also be used to disarm the militia as well.

What if I supplied my troops with Glocks (for reasons of reliability and commonality), and then congreff, fearing my martial might, bans Glocks? Must I now eat the cost of replacing them with Sigs? That's no small expense. Ok, now I'm armed with Sigs. Congress bans those too. After all, I can carry Colts. How about semi-automatic weapons, since I can carry

[demetrious]

For starters: On the "right to self-defense with a gun." Obviously, that right is not found in the Second; it is part and parcel of the right to Life

[countalpicola]

it is part and parcel of the right to Life

The what? I hope you're not referring to "No person shall be ... compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law" in the Fifth Amendment for that one.

The reason I point this out is to bring up another rule of textual interpretation which guides my thinking about the Second Amendment. The rule is the often cited admonition that laws are to be read as a whole. The thinking which keeps us from reading Dick and Jane as kiddie porn is the same reasoning we use to keep us from turning the words of a legal text entirely upside-down. In the case of the Fifth Amendment, reading it as a whole clearly shows that it is talking about rights afforded related to criminal prosecution by the government, not two random guys walking down the street

[izuko]

I think Demetrious was specifically discussing the constitution, not Supreme Court rulings, which may or may not have anything to do with said constitution.

[demetrious]

In every sense in which the word "arms" can be fairly read, it is a collective term. Unlike "the people" which can be fairly replaced in the text with "every particular individual" wherever it shows up in the text of the Bill of Rights, trying to replace "arms" with "every particular weapon" yields a statement which is absurd on its face. I admit that this utterly flabbergasts me. For starters, I fail to see how interpreting the pluralized form of "arm" to mean "multiple arms" is "absurd on it's face." How is it that the "collective" term "the people" be fairly replaced with the all-inclusive phrase "every single individual", and yet, in the case of the Second; it cannot be? If the founders intended to use a collective, rather then an all-inclusive term, they would have- particular "collective terms" cannot be read only as collective terms, and others as both collective and all-inclusive, simultaneously. It's internally inconsistent. How "arms" can be interpreted to mean, in effect, "(at least) some arms" is a mystery to me. I

(cont'd)

[demetrious]

(cont'd)

If the only criterion is that the populace has access to some militarily viable arms, then the government can enable total effective bans- because any firearm or weapon can be considered militarily viable

(cont'd)

[demetrious]

My apologies; I forgot- I still need to address the entire "right to life/self defense with a gun" issue.

I anticipated this:

The reason I point this out is to bring up another rule of textual interpretation which guides my thinking about the Second Amendment. The rule is the often cited admonition that laws are to be read as a whole... In the case of the Fifth Amendment, reading it as a whole clearly shows that it is talking about rights afforded related to criminal prosecution by the government, not two random guys walking down the street.... but I wasn't sure if the Fifth did only apply against government; or if it did, if that part was incorporated and if that made it individually applicable (it shouldn't, but incorporation does wacky things, always.) I'll be the first to say that I'm not a fan of "finding" unenumerated "rights" in the Constitution; (like the "privacy right,") but perhaps the much lower codification of the "right to self-defense" in common law makes sense here- bear with me for a moment

Re: (cont'd)

[countalpicola]

That is, of course, an extreme example, but it nicely illustrates the scope of the threat.

It is an extreme example, which means that it doesn't really illustrate the threat at all. Keep in mind the premise that "A militia ... is useless without arms." (original post) The Second Amendment doesn't allow for the militia to be rendered useless. Exactly where the line comes up between an effective and a useless militia is a factual question which would need to be decided on a case by case basis and is difficult to answer on abstract or hypothetical terms. Still, the more extreme the examples get, the more likely they are to run afoul of the rule.

I'll also point out that the factual question can change with time. Although it would surely have been good enough for the founders, I do not suppose that the modern militia is rendered effective by arming it only with muskets and flintlock pistols. =)

You simply cannot ban any class of weapon and not severely hinder a militia's performance, if not destroy it outright.
This, of course,