Sunday, February 5, 2012

The Second Amendment and Concealed Carry


Dennis Henigan wrote a wonderful article about some of the legal disappointments suffered by the NRA, in particular the one in Texas about 18-year-old concealed carry.

The NRA’s biggest problem, though, was that Judge Cummings was careful to read the Supreme Court’s Heller opinion and understand that it does nothing to support the gun lobby’s constitutional extremism. Much to the NRA’s chagrin, Judge Cummings emphasized that the right recognized in Heller was, in his words “quite narrow,” finding that “the Second Amendment does not confer a right that extends beyond the home.” Judge Cummings cited the legion of other post-Heller rulings also confining Heller’s scope to the possession and carrying of guns within the home. Not only did the NRA’s handpicked federal judge find no constitutional right for an 18-year-old to carry handguns in public, he found no such right for anyone to do so. It is also worth noting that, four months ago, Judge Cummings rejected another NRA lawsuit and upheld the federal ban on gun dealer sales of handguns to persons under 21 years of ago, a restriction that obviously impacts the freedom of young people to have a gun inside the home for self-defense.
Sometimes it seems like the gun-rights extremists have to be hit in the head with a 2 by 4 before they listen up. What could be more ridiculous than saying it's a constitutional right for 18-year-olds, or anyone else for that matter, to carry a concealed weapon?

When a gun-friendly judge says it's not, I guess it really isn't.  What's your opinion?

Please leave a comment.

36 comments:

  1. The point here is that this is an argument at the margins. Concealed carry is a settled matter in Texas, as it is in many other states. We're just trying to get a minor improvement.

    By the way, I wouldn't call anything written by Dennis Henigan wonderful.

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  2. Is it really? Isn't the whole justification for concealed carry that it is part of the Second Amendment right to keep and bear arms?

    But, doesn't your whole argument fall apart if the justification turns out to be so much bullshit?

    Even worse, if people find out the whole Second Amendment thing is to prevent the establishment of a standing army (i.e., large military establishment), don't you come off as sounding really stupid?

    Oh, I forgot, greg, you DO come off as being really stupid, but are too intellectually dishonest to realise that fact.

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  3. Laci,

    Article 1, section 8, paragraphs 11 and 12 of the U.S. Constitution enable the federal government to have a standing army and navy.

    The 2nd Amendment does not speak to those sections of the Constitution and it certainly does not repeal them. The 2nd Amendment is about balance of power, minimizing the necessity and size of a standing army, and enabling the individual states and individual citizens to defend themselves from any entity who would attack them. As George Washington stated, "Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to ensure peace, security, and happiness, the rifle and pistol are equally indispensable."

    But you already know this. Historical facts argue against your position so apparently you resort to distracting or outright deceiving people.

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  4. Let's say gun control proponents get their way and citizens cannot bear arms away from home: how are citizens supposed to defend themselves from criminal attack?

    I have already explained how cell phones do not work. Criminals often have the element of surprise and a citizen would not have an opportunity to call law enforcement. And even if the citizen did manage to call law enforcement, response times can vary from a few minutes to over a half hour -- plenty of time for a criminal to complete their attack.

    I have already explained how pepper spray doesn't work. I have seen first hand and read credible news stories where pepper spray fails to stop attackers.

    I have already explained how tasers and stun guns do not work. First of all some states consider possession of a taser or stun gun illegal. Second, tasers and stun guns often fail to work. Third, they are totally useless when facing multiple attackers. Fourth, they require the attacker to be within arm's reach which places the victim in grave peril.

    Striking weapons such as a baton or blackjack are not effective. First of all some states consider it illegal to carry anything that could possibly be used as a weapon. Second, a 120 pound woman in her 60s trying to fend off two men with a baton or black jack is laughable.

    What am I missing? I cannot think of any other method for a person to defend themselves that actually works. Does this mean that citizens are playing the lottery every time they leave their homes?

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  5. I tell you what, Laci, why don't you go to Texas and shout, no one has the right to carry a gun? You'll get laughed out of the state.

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  6. Crunchy And Article 1, Section 8 Clauses 15 & 16 allow for the States to have militias, which IS what the second Amendment addresses.

    If you are at all familiar with the two clauses of the Constitution that you cite, you would know that they DO NOT allow for stansding armies: In particular, Article 1, Section 8, Clause 12--

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    That last passage would preclude a standing army in theory since the appropriation would not be permanent.

    I strongly suggest reading the actual primary source material, trying to get a good understanding of that material, and not spouting nonsense in future.

    In other words, Crunchy, it's pretty obvious that you have no fucking idea of what you wer saying.

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    1. Congress appropriates money annually to the Pentagon. How about we all agree that this question of militias versus standing armies has been settled. We have a standing army, despite what the Founders feared. The Second Amendment, though, clearly gives a right to the people, not to the states. Why, if it was meant only to support state militias, would the text declare that the right of the people shall not be infringed?

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    2. Even more clearly, it starts out with the words:

      A well regulated militia being necessary to the security of a free state

      Are you saying that those words are meaningless?

      Are you saying that "section is mere surplusage -- is entirely without meaning"?

      You are aware, or should be aware that "It cannot be presumed that any clause in the Constitution is intended to be without effect".

      So, as per usual, what you are saying, greg, is ignorant rubbish.

      I think that if you knew how the Constitution was meant to work, that you would find the original intent was to prevent standing armies--not promote private ownership of firearms.

      Additionally, you have just proven my case that the Second Amendment is meaingless to modern society since the evil that right was intended to prevent has happened anyway.

      To try to pervert the original meaning of the Second Amendment to an unfettered private ownership of firearms was not its intent.

      If you are going to keep the original meaning of the Second Amendment, then it is the exact opposite of what you are proposing--the security of the nation is better served by a strong control of firearms, which was required under the Second Amendment's militia system.

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    3. If we're determined to keep the original meaning of the Constitution only, there's a whole lot that has to go away--abortion, for example. But as usual, you're stuck on the excuse and not the right. The well regulated clause gives an explanation, but the right stands alone. You didn't answer my question (I'm so surprised. . .): Why is the right named as belonging to the people, if the intention is only to arm state militias?

      I'll agree that the amendment is poorly worded from the perspective of either side, but "the right of the people" speaks for itself.

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    4. Laci,

      Do you ever make it through a day without using profanity and insulting people? Is that what you have to do to feel good about yourself?

      I know exactly what I am saying about that provision of Article 1, Section 8, clause 12. I mentioned in another post that it was a barrier to a standing army. But it is not a prohibition. Congress has had the collective will to renew appropriations every year and we have a longstanding military complex.

      You are the one who said, "if people find out the whole Second Amendment thing is to prevent the establishment of a standing army". I was simply responding that the federal government CAN create a standing army (even though there are measures in the Constitution to make that difficult) and thus the 2nd Amendment must speak to more than the concern of the Framers about a standing army.

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    5. So back to your assertion about the purpose of the 2nd Amendment: "... the original intent was to prevent standing armies--not promote private ownership of firearms."

      While it is true that the Framers wanted to minimize the need, duration, size, and expense of a standing army, it was not the only intent of the 2nd Amendment.

      We can simply look at the 2nd Amendment itself to see its original intent. The intent was securing a free state. And the only people that the citizens could count on, no matter what, to secure the state were the citizens themselves. What did the Framers call the citizens acting together voluntarily to secure their state? The militia. And a well regulated militia needs firearms to secure their state. Thus the Framers wanted to safeguard the ability of the citizens to secure their free state themselves with firearms.

      There it is -- the original intent of the 2nd Amendment in simple terms in plain English.

      A review of the Declaration of Independence, Federalist papers, Constitutional debates, public statements of the Framers, etc. are all consistent with that.

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    6. Hello Laci The Dog,

      You wrote: "Are you saying that those words are meaningless?"

      I don't. It is a declaratory phrase which provides a reason for the operative phrase (the right of the people to keep and bear arms shall not be infringed). An amicus brief submitted in support of the District of Columbia (that is your side) and authored by experts in English and Linguistics provided a rephrasing of the language in more modern term as follows:

      "Because a well regulated militia is necessary to to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

      Such rephrasing was endorsed in the Heller opinion.

      You wrote: "It cannot be presumed that any clause in the Constitution is intended to be without effect".

      100% correct. A prefatory phrase is also described as a preamble, similar in substantive effect to the preamble of the Constitution. So what effect in the law does a prefatory phrase have?

      Joseph Story in his COMMENTARIES wrote about the effect of a preamble, which "is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the peamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted? 1 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 462.

      OK, so the initial inquiry is whether the operative portion of the 2nd Amend lends itself equally to two different constructions. You are not allowed to draw upon the prefatory language to create the ambiguity, but once the ambiguity arises, you can emloy the prefatory language to determine which interpretation of the 2nd best serves that purpose.

      Ok, it is up to you to suggest an interpretation of the phrase "the right of the people to keep and bear arms shall not be infringed". Be specific and tells us exactly what would constitute a violation and rember, you can not use the prefatory language to create the ambiguity. Good luck.

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    7. Ah, but if you are going to say that this provides a reason for the law, then you must accept that if the reason no longer exists than there is no further need for the law.

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    8. Has the Second Amendment been repealed? Whatever the reason for it was originally, the right ennumerated therein doesn't specify a time limit. There's no sunset on the Bill of Rights.

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    9. Yes Greg, there is. You clearly do not understand the concept of desuetude, which includes the Constitution - note as MikeB pointed out the constutional provision against having to billet soldiers.

      The concept involved is desuetude. Since wikipedia does such an excellent job as a rule of dumbing down complex subjects to an introductory level for people unfamiliar with the topics, I will give you this from the wikipedia.org entry for it:

      In law, desuetude (from the Latin desuetudo, outdated, no longer custom) is a doctrine that causes statutes, similar legislation or legal principles to lapse and become unenforceable by a long habit of non-enforcement or lapse of time. It is what happens to laws that are not repealed when they become obsolete. It is the legal doctrine that long and continued non-use of a law renders it invalid, at least in the sense that courts will no longer tolerate punishing its transgressors.

      The policy of inserting sunset clauses into a constitution or charter of rights (as in Canada since 1982) or into regulations and other delegated/subordinate legislation made under an Act (as in Australia since the early 1990s) can be regarded as a statutory codification of the common-law doctrine.

      So while desuetude does not apply to VIOLATIONS of the U.S. Constitution, it can still be successfully argued that provisions in that document are obsolete, no longer relevant, through desuetude. It is not enforced, because it no longer occurs, and has not for a very, very, very long period of time.

      If you accept the legal doctrine which is laregly settled law except for the incompetence in Heller which improperly ignored settled law and precedent, then the 2nd Amendment DOES strictly reference militias ONLY. Any other interpretation would appear to be a distortion of the original wording.

      You know - like the kind of distortion and bowdlerizing you like to do when you drop off the parts of the sentence in the 2nd Amendment that you don't like, the one which says you're wrong.

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    10. People for all times have sought power and to tyrannize others. Fundamental, inalienable rights are the antithesis of tyranny and will never be "outdated" as long as people seek to tyrannize others -- which will never end unfortunately.

      The problem dog gone is that you want to disarm the population to prevent some unknown fraction of the following annual instances where criminals used a firearm that resulted in:
      1,000 civilian murders
      5,000 civilian gunshot wounds
      1,000 unintentional firearm injuries

      That's it. You want to disarm the populace to prevent some fraction of the 7,000 or so civilian murders and injuries at the hands of criminals with firearms. The down side to your "solution" is that you leave citizens utterly helpless against violent criminals and dismiss the much larger number of instances where citizens used firearms to defend themselves.

      I know what you are thinking. But what about the rest of the "firearm violence" categories:
      9,000 criminal murders
      20,000 suicides
      1,000 justifiable homicides
      45,000 firearm injuries to criminals

      I would like to reduce those as well. The difference between you and me is that I am not willing to sacrifice civilians who have broken no laws and desperately want to stay alive to reduce the number of injured criminals or suicides.

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    11. I'm not willing to sacrifice ANYONE. This is a civil society which is less civil when people feel the need to take law enforcement into their own hands.

      It is a less civil and less safe society when we have murder suicides on a weekly basis, along with shootings of law enforcement officers, and any number of other crimes of intimidation with firearms.

      You make a false argument. There are plenty of crimes of violence from people who bought guns legally, including prohibited people who were able to legally buy guns despite being dangerously mentally ill, or criminals, or drug users, because of the poor cooperation by more than half the states with the NICS - which lies squarely at the doorstep of the NRA for lobbying that resulted in gutting the requirement that states supplying that data be mandatory.

      I have no problem with law enforcement openly carrying or with those who have a legitimate purpose like private security that operates armored cars or other kinds of security, people who make large cash bank deposits, or those who need one as a result of threats pursuant to a court order that determines there is a real and existing threat present.

      But there are too damned many accidents, too damned many murder suicides, too damned many kids getting their hands on guns and killing other kids -- clearly, compraed to other countries with stricter gun laws our lack of them is stupid, ill-advised, and just plain uncivilized and NOT FREE or SAFE.

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    12. Dog Gone, look at what you just said here. The basis of your argument is that safety is the highest priority. Will you acknowledge that?

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    13. No. Once again you deliberately (apparently) get it wrong.

      I am arguing that any right to lethal force for self-defense has been superseded by a right NOT to personal lethal force, but rather to a right to be safe from violence by others.

      That does not make safety 'the highest priority'; rather it restates a revision of an earlier right that has evolved further from the way it was expressed and understood back in the 18th century, which in turn had evolved from earlier moral philosophy and jurisprudence. Or can you not appreciate that you don't have a right to self defense in ways which may or may not make you safe, but also make the rest of us distinctly LESS safe?

      Think of it as a parallel to people being recognized as substantively different than property ending slavery aka the right to own people as a property right.

      This is about other people having a right to be free of YOU.

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    14. Dog gone,

      There always has been and there always will be criminals who attack citizens violently for their personal gain regardless of what weapons are readily available. And most attacks take mere seconds to carry out. You claim we have a right to be safe from violence by others and that you are not willing to sacrifice anyone. How does a 120 pound woman defend herself from such attacks? How does a 160 pound woman in her 70s defend herself from such attacks? How does the formerly fit man who is now sick from cancer defend himself from such attacks? How does anyone defend themselves from a gang attack? How do the people of a large city defend themselves during riots when the police refuse to respond?

      How is your "safety from violence" utopia going to happen -- for the classes of people that I listed above -- in the real world?

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    15. Dog gone,

      And there you go again equating self-defense with "people feel the need to take law enforcement into their own hands". Defending oneself during a violent attack is just that. It is not "taking the law into our own hands".

      But you are okay with people "taking the law into their own hands" as long as they do it with their hands, pepper spray, or a taser.

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  7. Pooch said:
    "A well regulated militia being necessary to the security of a free state

    Are you saying that those words are meaningless?

    To try to pervert the original meaning of the Second Amendment to an unfettered private ownership of firearms was not its intent."

    What is perverted there pooch?
    Article XIII of Pennsylvania's 1776 Declaration of Rights states:

    "That the people have a right to bear arms for the defence of themselves and the state..."
    http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss5.html

    And then we have the 2A which came out of the House of Representatives:
    The Second Amendment as passed by the House of Representatives read:

    A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

    What's the deal with the religious section? Well, the fact is, this was in regards to the Quakers who wouldn't join a militia, but they still needed to hunt. Or do you believe that all the food came from Wal-Mart at that time? But, I'm guessing almost everyone had to shoot their own meals. I'm betting it was understood that the people had a right to keep and bear arms if for no other purpose than to feed their families.

    And what in the hell was the deal with the injuns? It was brought up in the Declaration of Independence: " has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions."

    Is your contention that people were not to be allowed to provide for their own self-defense.?

    To anyone whose head isn't filled with a bunch of legalese nonsense the words "the right of the people to keep and bear Arms shall not be infringed."
    The 'people' is not a collective it is plural for the individual persons that are mentioned in all ten of the Bill of Rights, unless of course you think people in the 1A applies only to those with a printing press. Now that would be stupid, wouldn't it? The Constitution says what it means and its intent and meaning is clear and won't be muddled up with some legalese mumbo jumbo bullshit.
    orlin sellers

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    1. Mikeb, that's the best you got? You can't offer a more detailed response to this comment? How about to the recent one by Legaleagle? Or are you taking your marbles and going home?

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  8. Yes, Greg, that's all I got.

    Militia means nothing in 2012.

    Quartering troops in homes means nothing in 2012.

    Meaningless, both the 2nd and 3rd.

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    1. Finding meaning in something is apparently a subjective experience, but as I've pointed out elsewhere, it would be convenient to the government to find a lot of our Constitution meaningless, including parts that you value.

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    2. MikeB's comment, "Militia means nothing in 2012" ...

      How about the armed citizens along the gulf coast who banded together to maintain law and order -- e.g. prevent looting, theft, rapes, murders. If that isn't a citizen militia in action in modern times, I don't know what is.

      How about citizens -- both armed and unarmed -- who patrolled the streets of Detroit to try and prevent the hundreds of fires that arsonists set every year on devil's night? Are they not a citizen militia?

      Those are examples of just one application of a militia: armed citizens come together to protect their community from lawlessness where law enforcement is impotent.

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  9. Whatever passes for "militia" today has little resemblance to what was meant by that term in 1790. Am I wrong?

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  10. First of all, many groups have tried to form, operate, and train as militias only to have various law enforcement agencies attack them. In fact California even makes any activity that resembles militia activity illegal. The result of this? Many militias operate in secret.

    Second, militias operate domestically. Since we have not had a major invasion in the U.S. in the last 100 or so years, you have not seen a major 1790s style militia in action in recent history. However it is worth mentioning that Japan decided not to invade the mainland U.S. during World War II because of their fear of a prolifically armed citizenry.

    I can assure you, if a foreign army tried a massive land invasion of the U.S. mainland, tens of millions of citizens with firearms would come out of the woodwork to repel such an invasion. As silly as you think that might sound, it wouldn't be hard for a foreign nation to detonate missiles (conventional or otherwise) over our military bases and decimate our standing army.

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    1. Crunchy, that contention about Japan and WWII not invading because we had armed citizens is total bullshit. It is a load of well-rotted manure that is circulated as a he said, someone else said, who is not named and cannot be verified kind of story that one finds NOT among serious historians of any stripe, but from the generally poorly educated gun nuts.

      Geeze lou-eeze, Crunchy, are you one of those poorly educated southerners who got their education from low quality schools like the ones the tea baggers are trying to make even worse than they already are?

      You need to find a better source of information before trying that nonsense here.

      What stopped Japanese invasion was that the mainland US was not on their battle plan targets, having everything to do with supply line distances and other issues, and nothing whatsoever to do with that bullshit.

      The biggest problem with the private militias is that most of them are weirdo political extremists, mostly right wing, including largely hate groups like white supremacists, and others that want to play paramilitary games while stroking their fetish objects to make them feel potent and powerful and for whatever indirect sexual thrill it gives them, while fantasizing about how big and strong and important they are going to be when they overthrow the existing United States government.

      The government is perfectly correct to stomp them down hard for being a bunch of hateful insurrectionists who abuse the meaning of words like freedom constantly.

      Maybe you should refresh your source of information as to what modern militaries look like and what their equipment is. You are as delusional if you think tens of millions of Merik'ns are going to defeat anyone armed with their fetish objects. To defeat an invader takes much more, including communications systems and services like air forces that far exceed the capabilities of 'armed 'Merkins'. (I'm expecting Laci is laughing out loud about now.)

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    2. Capn Crunch, don't you live in Michigan? I don't recall hearin' that state named when we rednecks gather 'round to sing "The Bonny Blue Flag". . .

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    3. Dog gone,

      I'll try to invest more research into the quote that I have heard attributed to a Japanese military commander.

      If you doubt the formidable capabilities of millions of citizens fighting for their country, why did Germany leave Switzerland alone in World War II? Why did the Soviets fail to take Afghanistan 40 or so years ago? How about Vietnam? How come it took the U.S. 11 years to finally give up in Iraq and Afghanistan where only a few thousand "insurrectionists" were armed? What do you think would have happened in Iraq if something like half of the adults were armed and united in their opposition to a U.S. invasion?

      A foreign military can have all of the smart bombs, missiles, planes, tanks, helicopter gunships, aircraft carriers, battleships, and submarines they want. When it comes to actually occupying the U.S., they will be unable to enforce their rule if 80 million or so armed citizens stand opposed.

      And as you consider the Switzerland WWII thing, don't give me the garbage about how everyone needed a central place to keep their money. The Axis nations controlled all of mainland Europe. And a nation size bank holding all of Europe's wealth would have been a most desirable target.

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    4. Hi Greg,

      It doesn't matter in which state/s I have resided and I don't care what dog gone thinks about my level of education, my I.Q., or how learned I am.

      Her response supports my assertion that I just posted in another active topic on this blog. In order to "understand" gun control, one has to have a command of world history, world politics, moral philosophy, law in general, constitutional law specifically, English (so we can properly understand the wording of legal documents), criminal justice, psychology, statistics, military strategy, sociology, and criminology.

      When you need that much subject matter for something, it is a religion and it allows you to ignore facts. That allows Dog Gone to believe that all will be well once self defense with a lethal weapon is illegal and firearms are "controlled" -- like they are in Mexico and South Africa.

      Oh wait, that wasn't fair talking about Mexico because their gun control would work if people would just stop smuggling firearms into the country. And the same would be true in the U.S. if gun control happened and people would not smuggle guns into the U.S. because dog gone forbids it.

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    5. Capn, It sounds like you're disagreeing with me, but are you? The modern day militias have nothing to do with the militia of 1790. I ask again, am I wrong?

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  11. Sorry for not replying Mikeb. I also condemn the violence and/or supremacy based "militias". Those are nothing more than criminal gangs conspiring to commit crimes. I don't have any significant knowledge of groups who call themselves "militias" who are advocating overthrowing our government. So I cannot really comment on them. I am personally incredibly reluctant to endorse any group as a "militia" who advocates willy-nilly to overthrow the U.S. government. While that possibility could always exist, I don't believe our country is at the point where that is necessary.

    I do not see much in the way of what I believe we should call "select" militias these days. As for the "unorganized" militia, which means every able bodied person of appropriate age, I believe they exist and are ready to act. I pointed out recent examples of groups operating along the Gulf Coast following hurricane Katrina. We could also look to the groups trying to stem the flow of illegal immigrants across the U.S. - Mexico border.

    What I see is that the unorganized militia is much more local in nature these days. And in many respects I believe that is a good thing.

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