Where and why would YOU put limits on RKBA?

[kcbrown]

I have said this a number of times in this thread but I'll do so again. There are 2 possible interpretations of the prefatory clause in the second amendment. One is that the "well regulated militia" term means that the only reason for the RKBA is to serve in the militia at the leisure of the government and that therefore the RKBA is a collective right intended to give the government the ability to have a callable force when needed. i.e. the second amendment is there for the good of the government.

Which, of course, is a contradictory interpretation since the government doesn't need a restriction on its power in order to have more power. Thankfully, this "interpretation" isn't one that was taken seriously.

The other interpretation is that "well regulated" means well supplied and equipped and that people need to have private arms in order to be able to help equip the militia in times when the militia is called. i.e. RKBA is an individual right. This is the interpretation by the SCOTUS in Heller.

Therefore; the government has a compelling interest in making sure the militia can be well equipped in time of crisis.

But this interpretation doesn't require the 2nd Amendment for fulfillment, because one of the powers explicitly granted to the government is the ability to arm the militia, which of course means supplying arms to the militia. Therefore, if the government is interested in having a well armed militia it can supply arms to the militia itself, making registration of privately owned arms irrelevant.

I believe that a registration program for weapons whose primary purpose would be to contribute to arming the militia would pass strict scrutiny.

It's difficult to see how. If the government wants the militia to be well armed, it has the power to arm the militia to whatever degree it sees fit. Therefore, the government has no compelling interest in requiring registration, because any arms it believes the militia should have it can issue to the militia on its own.

On the other hand, the primary reason the founders penned the 2nd Amendment, to enable the population to overthrow a tyrannical government, is one for which registration is obviously counterproductive on its face.

Does that answer your question?

It does. I may not agree with your legal interpretation, but your reply does tell me what you believe the possible legal basis to be.

[Meplat]

The logical extension of this argument is that there should be no laws governing individuals at all.

Laws against fraud, theft, and aggressive (as opposed to defensive) violence are all that are needed. Beyond that the laws themselves become fraud.

I don't think any sane human being would use atomic weapons unless absolutely necessary.

But that is not the same as saying that I necessarily trust all my neighbors to be absolutely sane at all times.

I've already been over this. It's a question of the combination of risk and consequences. Multiply the two and you get some idea of what you can actually expect. The probability of your sane neighbor having a temporary fit of insanity may be extremely small, but if the amount of damage he can do in that event is extremely high, the expected (average) amount of damage may still be very high. That is the overall risk to society.

Economics happens to take care of the problem of easy availability of nuclear weaponry for now. There is no guarantee that will always be the case. The purpose of a principled position is to deal with the hard cases, because the easy cases take care of themselves.

Your risk consequence ratio is fine, I get it. But it has absolutely no bearing on your ability to do a dam thing about it. Just can't be done any more than you can stop gang bangers from getting hand guns. My principled position is that I will never compromise liberty for security.

There is an old joke about a man who asked an attractive young lady if she would sleep with him for one million dollars. After the shock wore off she considered all the good she could do with that million and said yes. He then asked if she would do it for twenty dollars. She got upset and asked him: What do you think I am! He answered: We have already established that, now we are just haggling about the price!

The self appointed keepers of your "society" will start by telling you they can protect you from nuts with nukes, and the next thing you know they are coming after your M-16, who'd a thought?

I suspect this is why chemical and biological weapons make you uncomfortable: economics doesn't save you from them. It is therefore worthwhile to discuss them.

Economics can't save you from any of them actually. It's not that I don't worry about all of it. I just realize the futility of abandoning liberty for safety. My military training and professional background lead me to worry way more about Bio than chemical and nukes combined.

Why? Don't you trust your neighbor?

No that was just a ludicrous but least harmful way to placate you. I was haggling about the price.

The question isn't whether or not some restriction, like a background check, will absolutely solve the problem. It's whether or not it will have any effect at all and, more precisely, whether or not the effect it will have is sufficient while minimizing the imposition on an individual's freedom.

Prohibition of ownership of, say, nuclear weaponry, isn't going to guarantee that a bad guy can't get his hands on it, and it might not even have any effect on that at all. But if society is attempting to protect itself against the chance that a good person who is having a really bad day will use one to take himself and a large number of people with him -- that is, if it is attempting to deal with a high statistical risk to the population as it would in the case of widely available nuclear arms -- then a restriction such as prohibition of ownership may be exactly what's needed.

The same thing supposedly could be said of firearms, but in that case the statistical risk to society is so small that the implementation of such restrictions anyway would clearly be an unnecessary imposition upon the freedom of the individual. Even if everyone in the country were armed, the risk of being killed as a result of someone having a really bad day and going off in a fit of rage is much smaller than the risk of being killed by many of the normal activities we choose to engage in, such as driving.

And that is ultimately what the question I posed is all about: properly dealing with the amount of risk to society versus serving the purposes for which the 2nd Amendment was written to begin with. Economics won't always save you, which is why you need a solid, principled stance to fall back upon. Especially for those situations where economics happens to save you for now.

Aint no way to 'properly deal'. Liberty or death, never compromise! That's a principled position.

[dantodd]

It's difficult to see how. If the government wants the militia to be well armed, it has the power to arm the militia to whatever degree it sees fit. Therefore, the government has no compelling interest in requiring registration, because any arms it believes the militia should have it can issue to the militia on its own.

Yes, the government can arm the militia if it so chooses but it also has the right to use private arms for the militia. This is exactly what the Second Amendment says.

In modern words. The militia needs to be well armed therefore the people can keep and bear arms. If the prefatory clause states the purpose of the 2A is to allow for a well regulated militia then it would seem there is also the intent to use privately held weapons for the militia.

[dantodd]

Laws against fraud, theft, and aggressive (as opposed to defensive) violence are all that are needed. Beyond that the laws themselves become fraud.

So no laws against negligent behavior such as driving while intoxicated or discharging weapons in populated ares such as target practice on the sidewalk of a residential street?

[kcbrown]

Laws against fraud, theft, and aggressive (as opposed to defensive) violence are all that are needed. Beyond that the laws themselves become fraud.



Your risk consequence ratio is fine, I get it. But it has absolutely no bearing on your ability to do a dam thing about it. Just can't be done any more than you can stop gang bangers from getting hand guns. My principled position is that I will never compromise liberty for security.

If you will never compromise even the smallest amount of liberty for even the greatest amount of security, then why have any laws at all? They would serve no purpose whatsoever.

There is a fundamental and very important difference between a law abiding citizen who has some chance of having a Really Bad Day (enough to send him over the edge) and a criminal: premeditated intent.

A criminal will attempt to acquire a weapon with the intent to do harm, for various reasons. And you are correct that no set of laws can guarantee that he will not be able to get his hands on a weapon as powerful as a strategic nuclear weapon (though some combination of laws may be able to minimize the probability of that happening, or at least drop it to an acceptable level). You are also correct that a law that prohibits ownership of such a weapon would be entirely ineffective against such a person, and therefore such a law would not reduce the risk to society from such a person.

Prohibition of ownership of weapons such as strategic nuclear weapons is not intended to protect society from criminals. It is intended to protect society from law-abiding citizens who will occasionally have a Really Bad Day. How? Simple: the fact that they are law-abiding means that almost all of them will obey the prohibition. Therefore, the effect of the law is that at the time the law-abiding citizen does have a Really Bad Day, he almost certainly won't also happen to have access to a strategic nuclear weapon within the period of time that he's going crazy. And the end result is that the risk to society is reduced drastically.

Now, I agree that prohibition of ownership is an extreme measure -- it should be taken only when there are no other options on the table that can accomplish anything close to the same result and when the result in question is necessary to the survival of the society. And that leads to the next logical question: given the above, is there another option that will lead to roughly the same protection of society? You cannot simply argue that society doesn't need the protection in question, because the risk in question is quantifiable and very, very real in the scenario we're discussing.


What you're essentially arguing is that it is preferable for an entire society to die -- for people to die by the millions, than it is for the members of that society to suffer any infringement on their freedom at all. Well, I hate to say it, but Darwin takes care of that problem nicely: such societies will not survive and, therefore, the ones that will be left standing are the ones that are willing to suffer the loss of freedom sufficient to allow them to survive.

The self appointed keepers of your "society" will start by telling you they can protect you from nuts with nukes, and the next thing you know they are coming after your M-16, who'd a thought?

The argument that a prohibition of any kind will lead to more stringent and less reasonable prohibitions is, of course, a solid one with much historical evidence backing it. This is why prohibitions must not be enacted unless the survival of the society is at stake and there are no other reasonable solutions.

Economics can't save you from any of them actually. It's not that I don't worry about all of it. I just realize the futility of abandoning liberty for safety. My military training and professional background lead me to worry way more about Bio than chemical and nukes combined.

But why should you worry about biologicals in the context of this discussion more than any other kind of similarly powerful weapon, if economics is (for the purposes of the discussion) thrown aside for all the weapons in question?

[kcbrown]

Yes, the government can arm the militia if it so chooses but it also has the right to use private arms for the militia. This is exactly what the Second Amendment says.

No, the 2nd Amendment says that a "well regulated" militia is "necessary to the security of a free State". It says nothing whatsoever about the right of the government to use the private arms of the militia, nor does it say what exactly it means by "security of a free State", nor does it even say exactly what a "militia" is. For those things, we have to go back and examine the context in which the 2nd Amendment was written.

"Security of a free State" could easily (and, I think, probably does) mean "to maintain (secure) the free state of the people". "Well regulated" meant "properly working" (see http://www.constitution.org/cons/wellregu.htm). "Militia" at the time meant "a group of citizens who were ready to fight in an emergency", and it was expected that all able-bodied men would belong to it. So in that historical context with resepect to the 2nd Amendment, "militia" probably means "all able-bodied men".

In modern words. The militia needs to be well armed therefore the people can keep and bear arms. If the prefatory clause states the purpose of the 2A is to allow for a well regulated militia then it would seem there is also the intent to use privately held weapons for the militia.

I don't think that follows at all, though it is a possibility. But again, this flies in the face of the primary purpose of the 2nd Amendment: to ensure that the people can regain their freedom even in the face of a tyrannical government. By your argument, there is no reason for the 2nd Amendment to specify that the people have the right to bear arms since that right is obviously automatically conferred upon them at the time the government calls upon them to assemble for militia duty. Therefore, it must be that the right to bear arms is preserved by the 2nd Amendment in order to ensure that the people may do so even if the government doesn't want them to, such as when it becomes irredeemably tyrannical.

All the things you discuss here may make sense if you are simply looking at the 2nd Amendment in a vacuum, but they fall on their face when you look at the 2nd Amendment in its complete historical context: the founders just got finished kicking out a tyrannical government by force of arms, and wanted to make absolutely sure that they and their descendants would be able to do so again if necessary.

[Meplat]

Actually an all volunteer military (read mercenary force) is more dangerous to liberty than part time citizen soldiers. However, I think our all volunteer forces have amply proven they are operationally superior to any conscript or temporary volunteer force the nation , indeed the world, has ever fielded.

That said; it is a matter of continuing amazement to me that thirty years after the US adopted a mercenary military, our fighting men and women have held firm to their commitment to the tradition of "Duty, Honor, Country", and have held fast to their oaths.

It has made me even more proud and confident in these nobile individuals.

I

Not all volunteers are alike. In a large enough population, there are always going to be a sufficient number of people who are both naive enough and capable enough to do an evil government's bidding. All the government has to do is give them some "credible" story about how that 100K of the citizenry is composed of evil people who present an imminent danger to the country, or that if those people aren't taken out, a lot more will be killed as a result of the amount of fighting that would result (this is the justification that was used for the actual use of atomic weaponry, so you can't say that it would never be used). Or something.

Or do you think the people who committed so many atrocities against their own population in the name of their government weren't "volunteers"?

[Meplat]

However; I do agree that it would be better that any legally owned weapon not be required to be registered I merely stated that registration would probably be legal for militia weapons.

I think if you read the Heller opinions carefully you will find that SCOTUS has upheld the 2nd as an individual right regardless of any militia connection. It all has to do with centuries of precident in English common law. Your militia arguments are moot.

[Meplat]

I have said this a number of times in this thread but I'll do so again. There are 2 possible interpretations of the prefatory clause in the second amendment. One is that the "well regulated militia" term means that the only reason for the RKBA is to serve in the militia at the leisure of the government and that therefore the RKBA is a collective right intended to give the government the ability to have a callable force when needed. i.e. the second amendment is there for the good of the government. The other interpretation is that "well regulated" means well supplied and equipped and that people need to have private arms in order to be able to help equip the militia in times when the militia is called. i.e. RKBA is an individual right. This is the interpretation by the SCOTUS in Heller.

Not true. SCOTUS upheld the 2nd as an individual right without regard to any militia connection.

Therefore; the government has a compelling interest in making sure the militia can be well equipped in time of crisis. I believe that a registration program for weapons whose primary purpose would be to contribute to arming the militia would pass strict scrutiny.

Why the limitation in my last sentence? I don't believe that the prefatory clause is exclusionary. While the government may have a compelling interest in tacking certain weapons due to the prefatory clause other weapons are also protected by the second clause that would not be effected by the prefatory clause. These weapons should not be encumbered by registration.

For example; the handgun in Heller would be of little use in a militia but it is protected for other purposes, specifically the unenumerated right to self defense. ARs are a very popular weapon and would be very useful in a militia but they also have a number of other uses that are completely unrelated to the militia, self defense, hunting, varmint control etc. I do not think that it would be legal to compel registration of weapons like handguns and individual arms. This would be tantamount to registering printing presses or computer printers. This would be an undue burden on ownership.

Does that answer your question?

[kcbrown]

Actually an all volunteer military (read mercenary force) is more dangerous to liberty than part time citizen soldiers. However, I think our all volunteer forces have amply proven they are operationally superior to any conscript or temporary volunteer force the nation , indeed the world, has ever fielded.

I agree with you on all these points.

That said; it is a matter of continuing amazement to me that thirty years after the US adopted a mercenary military, our fighting men and women have held firm to their commitment to the tradition of "Duty, Honor, Country", and have held fast to their oaths.

Very true. There have been a few exceptions, to be sure, but only a few. Do you know of any situations where they have had to make the decision between following orders from very high up versus adhering to the Constitution? The true test of patriotism is when the individual must choose between doing what's right (Constitutional, in this case) and doing what he's told, and a true patriot will do what's right despite what he's told. And in the real world, it's much easier to say that than to do it.

[Meplat]

Yes, the government can arm the militia if it so chooses but it also has the right to use private arms for the militia. This is exactly what the Second Amendment says.

NO way. Government only has the specific powers granted it by the Constitution. That is very clearly spelled out. No where in the constitution do I fined a right to confiscate private arms.

In modern words. The militia needs to be well armed therefore the people can keep and bear arms. If the prefatory clause states the purpose of the 2A is to allow for a well regulated militia then it would seem there is also the intent to use privately held weapons for the militia.

[USAFTS]

Yes, the government can arm the militia if it so chooses but it also has the right to use private arms for the militia. This is exactly what the Second Amendment says.

In modern words. The militia needs to be well armed therefore the people can keep and bear arms. If the prefatory clause states the purpose of the 2A is to allow for a well regulated militia then it would seem there is also the intent to use privately held weapons for the militia.

OK....I have read many of your posts and some have a level of merit. Others are....I'm at a loss for an adjective.

The 2nd Amendment says exactly what it means and was carefully written as a protection for the people AGAINST the government...IT, IN NO WAY, authorizes the government to arm or control the militia.

"A well regulated militia" (The able-bodied civilian population, which is sufficiently armed and proficient with it's weapons)

"being necessary to the security a free state" (Which is ultimately needed for the protection of its own freedom)

"the right of the people" (the RIGHT of each individual citizen)

to keep and bear arms (To own and carry such weapons that are equal to those of the government)

shall not be infringed (SHALL...NOT...BE...INFRINGED ... [Interfered with, incumbered, stopped, blocked, MADE DIFFICULT OR IMPOSSIBLE TO EXERCISE)

That is the 2nd Amendment. It was important enough to be selected and enumerated as an absolute right that was to be GUARANTEED to the individual. It was designed for the people AGAINST the government. It's that simple.

It does not grant NOR does it imply ANY power or authority to the government or Congress or the President or Aunt Ruth or the janitor...IT WAS...and IS...for the people to be able to protect themselves, their families, their communities, their states, their country from foreign threats and if need be...from their own government, should it abuse its limited power and move into the opression that the led to the original revolution.

There IS NO valid Constitutional argument for registration.

[Meplat]

Nope. If the perp hurts somebody, lock him up and throw away the key. Otherwise leave him the **** alone. Again, no sane person is going to do those things. But should a sane person have to worry about some state actor arresting him for shooting a mountain lion, a cyote, or an angry pit bull going after a baby stroller? KMA.

So no laws against negligent behavior such as driving while intoxicated or discharging weapons in populated ares such as target practice on the sidewalk of a residential street?

[Meplat]

If you will never compromise even the smallest amount of liberty for even the greatest amount of security, then why have any laws at all? They would serve no purpose whatsoever.

Bingo

There is a fundamental and very important difference between a law abiding citizen who has some chance of having a Really Bad Day (enough to send him over the edge) and a criminal: premeditated intent.

Yes, and that is that he dosen't exist except in the minds of regulators.

A criminal will attempt to acquire a weapon with the intent to do harm, for various reasons. And you are correct that no set of laws can guarantee that he will not be able to get his hands on a weapon as powerful as a strategic nuclear weapon (though some combination of laws may be able to minimize the probability of that happening, or at least drop it to an acceptable level). You are also correct that a law that prohibits ownership of such a weapon would be entirely ineffective against such a person, and therefore such a law would not reduce the risk to society from such a person.

Prohibition of ownership of weapons such as strategic nuclear weapons is not intended to protect society from criminals. It is intended to protect society from law-abiding citizens who will occasionally have a Really Bad Day. How? Simple: the fact that they are law-abiding means that almost all of them will obey the prohibition. Therefore, the effect of the law is that at the time the law-abiding citizen does have a Really Bad Day, he almost certainly won't also happen to have access to a strategic nuclear weapon within the period of time that he's going crazy. And the end result is that the risk to society is reduced drastically.

Possibly. but to me this is not convincing, how bad a day do you have to have to distroy a city?

Now, I agree that prohibition of ownership is an extreme measure -- it should be taken only when there are no other options on the table that can accomplish anything close to the same result and when the result in question is necessary to the survival of the society. And that leads to the next logical question: given the above, is there another option that will lead to roughly the same protection of society? You cannot simply argue that society doesn't need the protection in question, because the risk in question is quantifiable and very, very real in the scenario we're discussing.

My point is that the prohibiton of ownership is nothing more than a feel good measure. Let's be honist and admit we cant stop it.


What you're essentially arguing is that it is preferable for an entire society to die -- for people to die by the millions, than it is for the members of that society to suffer any infringement on their freedom at all. Well, I hate to say it, but Darwin takes care of that problem nicely: such societies will not survive and, therefore, the ones that will be left standing are the ones that are willing to suffer the loss of freedom sufficient to allow them to survive.

I doubt it. Biology tells us that no matter what a certain percentage of any population will survive.



The argument that a prohibition of any kind will lead to more stringent and less reasonable prohibitions is, of course, a solid one with much historical evidence backing it. This is why prohibitions must not be enacted unless the survival of the society is at stake and there are no other reasonable solutions.

A point of agreement.


But why should you worry about biologicals in the context of this discussion more than any other kind of similarly powerful weapon, if economics is (for the purposes of the discussion) thrown aside for all the weapons in question?

A nuke will destroy a finite number of people and break a finite number of things. The same is true of chemicals. Biologicals have the potential of destroying virtually every human being on this plant. And once set lose there is no putting the gene back in the bottle. There will be a small number of survivors to rebuild, if they can find each other. Total nuclear conflagration would leave orders of magnitude more survivors than total Bio warfare.

[Meplat]

I agree with you on all these points.


Very true. There have been a few exceptions, to be sure, but only a few. Do you know of any situations where they have had to make the decision between following orders from very high up versus adhering to the Constitution? The true test of patriotism is when the individual must choose between doing what's right (Constitutional, in this case) and doing what he's told, and a true patriot will do what's right despite what he's told. And in the real world, it's much easier to say that than to do it.

True. I cannot site any examples one way or the other. I just know I have not yet seen any who disgraced there oath. I refer you to the oath keepers website.