I am responding here to a post from a reader in comments. I believe this issue is important enough to reply in the front page of my blog, as opposed to answering in comments. – Jim I hope you don’t mind.
Below are Jim’s original comments in black, and my responses in blue.
I’m actually a proponent of gun rights, but I’m also ok with (ahem) certain reasonable restrictions, so please don’t think I’m here to troll. I’m interested in hearing your comments if you’ll make them.
I always welcome the chance to have a reasoned discussion on this issue…I will start with the caveat that I am not an attorney…these are my own opinions, based on what I have read, learned, experienced, etc…
I guess as someone who is conflicted on the issue I’m wondering why an unadorned appeal to the 2nd Amendment is supposed to be a good enough defense of gun ownership.
In the preamble to the Declaration of Independence, the founding fathers wrote that the right to life was inalienable. If my right to life is inalienable, then certainly my right to protect and defend that life is also an inalienable right. Can’t have the first right without the second (implied) right. To me that means that the right to defend yourself and your family against aggression and bodily harm is a basic human right.
The rights to life and to keep and bear arms existed before there ever was a government or constitution, it survived the creation of the government and constitution, and it will continue to exist long after our form of government and our constitution are a distant memory. Just like all the other rights which are enumerated, not granted in the bill of rights.
So I don’t appeal to the second amendment to defend my right to keep and bear arms. I point to the second amendment as proof positive, that it is a basic right regardless of the form of government under which I live. See more below…
The 2nd Amendment only makes it legal to own a gun; it doesn’t make it right.
I disagree. Look at the words and phrasing of (some of) the amendments:
Amendment I: “Congress shall make no law…”
Amendment II: “… shall not be infringed.”
Amendment IV: “The right of the people…shall not be violated”
Amendment VIII: “Excessive bail shall not be required…”
That wording does not “make” anything “legal,” it makes things illegal. It makes certain actions by government illegal. Those amendments don’t tell us what we can do. It tells government what it cannot do. The amendments are not a granting of rights to “we the people,” they are a restraint on government power. They tell the government that certain rights are above even the government’s power to restrict.
That is, it makes it a right but it does not make it the correct thing to do.
I agree with the last half of your last sentence “…but it does not make it the correct thing to do.”
The existence of the second amendment does not make keeping and bearing arms the “correct thing to do.” That is the beauty of a right…It doesn’t require that you do something, it merely makes it an option. You are free to exercise your rights – or not – right up until it infringes on someone else’s rights. If you choose not to exercise your right as enumerated in the second amendment, that does not affect my rights. Likewise, if I choose to exercise my right to keep and bear arms, it does not affect your rights.
It seems me that gun advocates, myself included, are not concerned with mere legality. If, for example, the Constitution were amended so that gun ownership were no longer a right, people would still argue they should be able to own guns.
Again, I agree. If the constitution were amended or retracted today, my paragraph above about these rights existing before, during and after the government and constitution would still be valid…
If you are getting at the “moral question” here, I believe it is my moral obligation as well as my legal right to be able to defend myself with a firearm. I have a family that depends on me to earn a living – I have a moral obligation to remain alive and able to do that. I have children that need a father to come home to them every night to help raise them – I have a moral obligation to do that. I have children whom it is my moral duty to protect – with any means at my disposal – including the most efficient tool for that purpose – a firearm.
If you are a religious person, don’t you also have a moral duty to protect the one and only life that your God, Allah, Vishnu, et al gave you?
Furthermore, the right to own a gun isn’t infringed by most gun legislation (5-day waiting periods, mandatory safeties, restrictions on which guns can be purchased).
I disagree. A waiting period is de facto (and de jure) an infringement
We have certain legislated “reasonable restrictions” on other enumerated rights, like the first amendment right to free speech – can’t yell fire in a crowded theatre right? Can’t libel or slander someone, right? If I abuse my right to free speech (i.e., through libel or slander) I should fully expect to pay the price – lawsuits, fines, etc.
Those “reasonable restrictions” are reactive laws to the abuse of a right. What gun control laws do is turn “reasonable restrictions” into a prior constraint on my right to keep and bear arms. These legislated prior constraints assume that I will abuse my right at some point in the future; therefore, they restrict my right as to how I will exercise that right in the present.
Let’s apply that theory to some other rights that are enumerated (not granted) in the bill of rights:
“Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A “reasonable restriction” parallel to some gun control laws would be the necessity to undergo a background check before you could exercise this right. After all, a convicted drug dealer might commit a crime through exercising this right by flushing his drugs down the toilet during the time the police waste in obtaining a warrant. And if you are a convicted drug dealer, you would clearly fail the background test (as a convicted felon would fail the NICS gun-buying instant background check).
But the government should restrict your right as a lawful citizen to exercise that right until that background check is done and until the warrant is ready. You will need to submit finger prints, fill out a form, present identification, and give your signature and oath that everything you provided the police is true and accurate.
And then you have to wait until the 3- or 5- or 10-day waiting period (pick your state’s law) expires before you can exercise your right. In the meantime, the police will not be infringing that right by coming into your house, searching for whatever they want, because they haven’t yet “particularly describ(ed) the place to be searched, and the persons or things to be seized.” They will seize anything they “need” for their investigation, including you, and they will catalogue the contents of your house while you are gone. Sound like a “reasonable restriction” on a right?
How about the last part of that pesky Article V – “nor shall private property be taken for public use, without just compensation.” If the state government decides they need to take your home and property through the use of eminent domain in order to build a new recreation center, they might decide to place a prior restraint on this right. They might tell you that they will give you “just compensation,” but that they need the land now.
Therefore, they will take the land now, and in about 3 years, once all of the environmental impact studies have been done, all of the architectural drawings are complete, and the construction job has been bid on, then they will know the true value of your land. They will pay you then. They aren’t denying your right, they are merely delaying your exercising of it by placing a “reasonable restriction” prior restraint on it for the good of the community.
Restrictions on which guns can be purchased and mandatory safeties are for another day lest I bore you even more.
The only legal infringement on the right to own a gun is placed on violent criminals and the psychologically unstable.
Incorrect. Any person involved in a relationship (and I don’t care if you are a man, a woman, gay, straight -whatever) can have their gun-owning rights infringed even if they have the cleanest record on file and hold a top-secret security clearance to boot. How? It’s called a restraining order. In almost every jurisdiction today, a restraining order can be issued at the testimony of your “partner” without your knowledge, without your ability to tell your side of the story, and without your right to defend yourself.
Further, in almost every jurisdiction today, if your “partner” tells the issuing judge that you own guns and that they are afraid of you (whether they really are doesn’t matter) the police can (and probably will) come and seize your guns.
Does it matter that an agent of the government just violated your rights under Amendment VI – “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against (you); to have compulsory process for obtaining witnesses in (your) favor, and to have the Assistance of Counsel for (your) defence.”
Does it matter that an agent of the government just violated your rights under Amendment V -“…nor shall (any person) be deprived of life, liberty, or property, without due process of law.” – How can there have been due process of law if you haven’t set foot in a courtroom, faced your accuser, seen the evidence against you or had the assistance of counsel?
If those are violations of someone’s rights (and I believe they are), then taking someone’s guns before they have been afforded due process is certainly an “infringement” don’t you think?
The other problem with your statement is this; a long time ago felonies were defined as only the most heinous of crimes: murder, rape, maiming, etc. Less serious offenses were misdemeanors. Fast forward to today, and a lot of other, lesser crimes have been changed to be felonies.
How about the 16-year old kid who is convicted of statutory rape because he had sex with his girlfriend? He is a non-violent felon and will never be able to legally own a gun for self-defense.
Did you know that it is a felony in Alabama to pass a stopped school bus? Should a guy convicted of that not be able to legally own a gun?
Did you know that it’s a felony in Mississippi to sell untagged oysters? Should a woman convicted of that not be able to legally own a gun?
Did you know that it’s a felony in Arkansas to excavate or display human remains, even for historical or educational purposes? Should a guy convicted of that not be able to legally own a gun?
These people are not “violent felons” and yet their right to keep and bear arms is infringed just as much as the serial-rapist walking the streets today. Which one do you think is more likely to break the myriad gun control “reasonable restrictions” on the books today to obtain a gun?
In some states DUI is a felony and in others it is a misdemeanor. Under due process of law, how can we convict a person of a crime in one state and they retain their rights to gun ownership, and then convict a guy in the next state over of the same exact crime, and take his rights away?
Only the most radical members of the gun rights movement advocate returning gun ownership rights to those who have proven themselves to be a risk to society.
Agreed. If someone can’t be trusted without a custodian, they cannot be trusted with a firearm. So keep them locked up in prison or in the loony bin. But another law infringing on the rights of law-abiding citizens is not going to stop them from further despicable behavior if they are so inclined.
If we could wish away all guns and knowledge of guns today, so that no gun existed on the face of the earth, and no one had the knowledge to make them, would we then be “safe?” Wasn’t murder against the law before guns were even invented? People killed each other (and still do) with knives, rocks, clubs and their bare hands. Are we going to outlaw those too?
I know…I know…guns are “more efficient” killing machines. Which is exactly why the weak and frail amongst our society should want them to exist. They at least give them a chance to level the playing field against large, aggressive, violent criminals – especially if they come in pairs. Or groups.
By definition, law abiding citizens obtain their guns legally. Also by definition, criminals obtain their guns illegally. It is already a felony crime for a convicted felon to touch, use, possess, own or operate a gun (possession under disability). It is a further felony crime for them to conceal and carry that firearm (carrying a concealed weapon without a license). It is an additional felony crime for them to have that firearm on them in the commission of any other crime – regardless of whether they use the gun in the commission of that crime – mere possession during the commission of another crime is a felony (possession concomitant with a felony). It is a felony crime for them to threaten anyone with that illegally-possessed gun (assault). It is a further felony crime for them to actually shoot someone with that gun (battery). And lastly, it is a felony crime for them to kill someone with that gun (one degree or other of murder or homicide). And yet we still have firearm murders occurring every day.
What makes the reasonable and rational person think that piling another felony on that heap is going to stop a person bent on murder from obtaining a gun to do it? Committing 6 felonies is OK by them, but that 7th one, that one is going to stop them? And do we really think that a guy who is looking at life (or death) in prison is going to worry about an additional 3 years tacked onto his sentence for possession of a firearm during the commission of a felony?
I am a law-abiding citizen who has never shown any inclination toward violent criminal activity, and I resent the infringement of my rights just because someone in government is afraid that somebody, somewhere is going to commit another crime with a gun. Violent offenders should stay in prison, the mentally insane should stay in the asylum, and the government should stay the hell away from my inalienable rights as enumerated in the amendments to the U.S. Constitution.
Hope that lays out my position Jim, and by the way, I like your blog…
January 31, 2008 at 7:05 pm |
This is a great response. I hope you don’t mind continuing the conversation tomorrow. I have to eat dinner now and then its off to other things but I like some of what I read above, disagreed with other parts, and I think I need to clarify some things I wrote last time because your response to them, while good, missed the point of my question (but that’s my fault for not being clear).
Very much appreciated.
January 31, 2008 at 7:53 pm |
Jim:
Thanks for the interest and stop back any time…
February 1, 2008 at 11:06 am |
Again, thanks for the great response. The argument by metaphor here is, to me, about 50/50 convincing. I see some logical flaws in the Amendment IV and V defenses. But first allow me to catalog the things I liked.
Most immediately, because they were the part I most recently read, the defense that very clearly minor crimes like selling oysters without a license (or whatever) being included as a felony is just ridiculous. And, I have to say, I’m unfamiliar with gun laws outside of how to obtain a permit. I thought, and you can correct me here, I thought that it was specifically those people previously convicted of a “violent crime” while you seem to state that it is all felonies that can deprive you of the right to own a gun.
If it is true that any felony can prevent gun ownership and that illegally shucking oysters by the roadside is a felony then you are absolutely right.
I also liked bringing the restraining order argument. I know how restraining orders work (not because I’ve had one) and I think the whole process is basically illegal–assuming guilt due to unfounded accusation, which is a total reversal of how the criminal justice system is supposed to work…which, of course, assumes innocence unless evidence (not accusation) proves otherwise. The fact that ROs prevent gun ownership (in addition to other unconstitutional violations) is wrong.
I also liked, generally, the argument that Amendment II only puts words on paper to acknowledge a fundamental right that exists prior to the constitution…specifically relating the right of gun ownership with the Amendment I, the right to protect one’s life.
OK. Now for my further questions:
Amendment I defense: Amendment II does not state that gun ownership is a natural right to protect life, but that it is a political right in order to aid in the formation of a militia. Personally I like your defense, but I’m not sure if that’s what Amendment II is stipulating and I’m not sure that’s what was meant. That is, I think Amendment II may have been written wrong and it should be amended in the way you state.
Amendment IV defense: Amendment IV is, for me, another “problem amendment.” Amendment IV has been under constant attack from political elites because it makes running a country difficult. The right to privacy is very annoying to those who are blamed for not preventing crimes. The problem with Amendment IV for me, like what I said above about Amendment II, is that the founders failed to fully explain why the right to privacy is an important and inalienable right. They lived in a world where the government raided their homes regularly in search of seditious materials. I think they underestimated how time would erase the psychological scars of an invasive leadership. They thought we would just always understand what they were saying. As a result of not explaining the philosophical reason for IV various laws have been proposed and passed because, while they violate the letter of the law, they don’t violate (someone’s interpretation of) its meaning.
But in terms of how IV applies to gun ownership it just doesn’t quite work for me. The right to illegal search and seizure is one thing and it is not tantamount to freedom from all searches and seizures. If the government proves that there is reasonable cause, they can search you, your house, car etc.
For me, the difference between an illegal search and a background check is only one of scale, but scalar differences are important distinctions in law. For example, a cop can’t search your house if he has “cause.” He has to have “reasonable cause.” You aren’t convicted of a crime if there is “some” evidence that seems to prove your guild, you are convicted if there is a “preponderance of evidence” against you (in civil court) and “beyond a reasonable doubt” in criminal proceedings.
The level of invasion of someone coming into your home, rustling through your trunk, or digging their hands in your pockets is severe. A background check is relatively minor. It is so minor, in fact, that a background check, even if it returns facts that would relate you to the current warrant request is insufficient.
That is all to say that one of the major attack lines in Amendment IV violations is “the innocent have nothing to fear.” In terms of the scale of invasion of home/car/body searches, I don’t think it passes muster. But it might…and I do say “might”…when it comes to gun ownership, which I will explain after I talk about my (very minor) problem with your Amendment V defense.
Amendment V defense: Basically you lose the right to own a gun as part of the due process of being convicted of the felony. The background check is used solely to ensure that those who have had that restriction placed on them are not acting in violation of it. So I don’t think it quite works and I think it returns us to the basic attack on Amendment IV protections…the innocent have nothing to fear.
Only a small percentage of murders in this country are premeditated, and many of those are not gun-related. A larger, but still small percent of gun crimes are as a result of violent crimes peripherally related to the ensuing murder (robberies, burglaries, rapes, etc), where the gun was a tool. A larger percent of gun deaths are accidental. But most murders in general and most gun-related murders are “heat of passion” affairs (or at least that’s my understanding of things…it’s been awhile since I’ve seen the statistics).
So, I have a problem with the “anybody can get a gun, anytime” argument. For one thing, you have to expose yourself to a pretty seedy element to get an illegal gun and even then you aren’t guaranteed to get one right away. And it takes networking. Most the country isn’t sufficiently connected to the criminal underground of illegal gun trading. It could be argued that those who have been convicted of felonies do have access to criminals who can get them guns on a quick turnaround, except that by your own argument, many of the convicted felons that should have gun ownership rights restored are illegal oyster shuckers and school-bus-passers.
But ultimately I think the real problem here that warrants a background search is that the price is just too high. In these heat of passion situations the smoking gun is a smoking gun. Sure,the person broke the law when he/she obtained the gun illegally and now that the police now that, an additional few years can be added to their sentence but now someone is dead on top of it.
There is, and you sort of brought it up, the problem of whether or not an ex-convict should still be punished for their crime after they’ve paid their time. Is it constitutional to continue restricting an ex-convict?
That’s a real tough issue. Constitutional ideals didn’t take into consideration things that we know now to be true: things like 90%+ recidivism rates. We know that ex-violent offenders are more than likely, they’re almost guaranteed, to be repeat offenders. If you combine that with our overcrowded penal system, it’s unrealistic to propose keeping them locked up as you suggest. Because of the imminent danger that guns in the hands of violent offenders presents and the limited invasion required by a background check, combined with the 5-day waiting period (which removes the possibility of flying off the handle to get a gun quickly in a rage) I think serves as a fine set of restrictions that does not infringe on the rights of those that have not already infringed on the rights of others to dangerous effect.
The due process of their conviction removes their right to own a gun forever. I guess that’s the only answer. The background check just makes sure that they aren’t a person that has already been duly processed.
February 1, 2008 at 9:27 pm |
[...] Last Attempt… Read the first part of our discussion here. [...]
February 19, 2008 at 10:49 am |
You know I tends to disagree with a lot of debate about all of this. But what you said made sense. Enjoying your blog and Ill check back to see any of your updates.
Thanks
Martial
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