Last Attempt…

Read the first part of our discussion here.

Jim’s response:

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.

My rejoinder:

Well, I told you what I thought about the second amendment.  Let’s take a look at what some guys, who were a whole lot smarter than me, thought about it.  The guys who wrote it…

“It is clear from the words of the founders of this country that the right to ‘keep and bear arms’ is an inviolable personal right. They protected this right by the Second Amendment to the federal constitution and by provisions of the constitutions of the states. This is a subject for debate only by those ignorant of our history, or those that purposely wish to deny us our rights and, ultimately, to subjugate us under the tyranny of government perverted from its constitutional foundations.” – George Mason, Father of the Bill of Rights

“The Constitutions of most of our states and of the United States assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.” – Thomas Jefferson

“Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take everything else! … Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force and whenever you give up that force, you are inevitably ruined.” —Patrick Henry, “Liberty or Death” Speech

“When the people fear the government, there is tyranny. When the government fears the people, there is liberty.” – Thomas Jefferson

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
- Benjamin Franklin, Historical Review of Pennsylvania, 1759.

“It is the duty of a patriot to protect his country from its government” – Thomas Paine

Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would. — JOHN ADAMS

“The oppressed should rebel, and they will continue to rebel and raise disturbance until their civil rights are fully restored to them and all partial distinctions, exclusions and incapacitations are removed.” – Thomas Jefferson

“Are we at last brought to such humility and debase degradation, that we Americans can not be trusted with arms for our own defense?” – Patrick Henry, 1788

“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 insure peace, security, and happiness, the rifle and pistol are equally indispensable…. The very atmosphere of firearms anywhere and everywhere restrains evil interference–they deserve a place of honor with all that’s good….” – George Washington

“The great object is that every man be armed. …” – Patrick Henry

“The constitutions of most of our States assert that all power is inherent in the people; that… it is their right and duty to be at all times armed.” – Thomas Jefferson to John Cartwright, 1824.

The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops. — Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed BV the Late Convention (1787).

“The strongest reason for the people to keep and bear arms is, as a last resort, to protect themselves against the tyranny of government.” – Thomas Jefferson

“What country can preserve its liberties if its rulers are not warned from time to time that the people preserve the spirit of resistance?” – Thomas Jefferson

Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.- Senator Daniel Webster

The said Constitution be never construed to prevent the people of the United States who are peaceable citizens from keeping their own arms. — Samuel Adams, during Massachusetts’s Convention to Ratify the Constitution (1788).

A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms. — Richard Henry Lee, Additional Letters from the Federal Framer (1788) at p. 169

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual. — Thomas Jefferson

To me, this ain’t about silly felony laws or what the founding fathers knew about recidivism or the “easy availability of guns.” These men wrote the second amendment into the bill of rights not only so we could protect ourselves from personal physical attack by individuals, but more importantly, so we could protect ourselves from a government that ignores the constitution, usurps authority, tramples liberty and grabs power to which it is not entitled.  I took an oath to protect and defend that constitution against all enemies foreign and domestic.If that don’t explain it, we just see things differently.