The Democratic Candidates And Civil Liberties

by hilzoy

Jeffrey Rosen in the Washington Post:

"IF Barack Obama wins in November, we could have not only our first president who is an African-American, but also our first president who is a civil libertarian. Throughout his career, Mr. Obama has been more consistent than Hillary Clinton on issues from the Patriot Act to bans on flag burning. At the same time, he has reached out to Republicans and independents to build support for his views. Mrs. Clinton, by contrast, has embraced some of the instrumental tacking of Bill Clinton, whose presidency disappointed liberal and conservative civil libertarians on issue after issue. (...)

In the Senate, Mr. Obama distinguished himself by making civil liberties one of his legislative priorities. He co-sponsored a bipartisan reform bill that would have cured the worst excesses of the Patriot Act by meaningfully tightening the standards for warrantless surveillance. Once again, he helped encourage a coalition of civil-libertarian liberals and libertarian conservatives. The effort failed when Hillary Clinton joined 13 other Democrats in supporting a Republican motion to cut off debate on amendments to the Patriot Act.

That wasn’t the first time Mrs. Clinton tacked to the center in a civil-liberties debate. In 2005, she co-sponsored a bill that would have made it a federal crime to intimidate someone by burning a flag, even though the Supreme Court had struck down similar laws in the past. (Mr. Obama supported a narrower bill that would have satisfied the Constitution.) And Mrs. Clinton opposed a moderate proposal by the United States Sentencing Commission that would have retroactively reduced the draconian penalties for possession of crack cocaine — a proposal supported by Mr. Obama, and by liberal as well as conservative judges. (...)

Mrs. Clinton’s approach to the subject is that of a top-down progressive. Her speeches about privacy suggest that she has boundless faith in the power of experts, judges and ultimately herself to strike the correct balance between privacy and security. (...) Mr. Obama, by contrast, is not a knee-jerk believer in the old-fashioned liberal view that courts should unilaterally impose civil liberties protections on unwilling majorities. His formative experiences have involved arguing for civil liberties in the legislatures rather than courts, and winning over skeptics on both sides of the political spectrum, as he won over the police and prosecutors in Chicago.

As a former grass-roots activist, Mr. Obama understands the need to make the case for civil liberties in the political arena. At a time when America’s civil-libertarian tradition has been embattled at home and abroad, his candidacy offers a unique opportunity."

Civil liberties matter immensely under any circumstances. But now, when our Constitution has been under assault for years, they matter more than ever. Having a President who is committed both to civil liberties and to making the best political case he can for them, and who also understands the Constitution well enough to teach it at an excellent law school, would do a lot to repair the damage our system of government has suffered over the last eight years.

Comments

[sehicao]

police and prosecutors in Chicago?

[Vincent]

The article's referring to how Obama accomplished making electronic recordings of interrogations mandatory. I believe hilzoy has written a few posts on that particular subject.

[Bill]

Civil Liberties.

“(2) VIOLENT RADICALIZATION- The term `violent radicalization' means the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change.”
-H.R. 1955: Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, Representative Jane Harmon, Democrat, California
…
“To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.”
-James Madison, Violent Radical, read Federalist 46 for more

"From South Central L.A. to Newark, New Jersey, there's an epidemic of violence that's sickening the soul of this nation," the Illinois senator told the crowd. "The violence is unacceptable and it's got to stop."
-Barack Obama, calling for a ban on efficient rifles for Civilians. Banning good guns will stop the violence, you see.

http://www.foxnews.com/story/0,2933,289373,00.html

The relationship between the Constitution and ‘excellent’ law schools is open for judgment. Obama is telling us that he will put all college students to work for the state. Maybe I should not take him at his word and the real number will be 85%.

[Turbulence]

Just like George Bush and every recent President has told us that they will make everyone purchase a house. Maybe I shouldn't take them at their word and assume that they will only force 85% of us to purchase a house.

What's that you say? The existence of the home mortgage deduction is not the same as government coercion? Really?

Given how many times this has been explained to Bill, I'm beginning to doubt that his writings are made in good faith.

[Hartmut]

But Bush just said that the economic problems are caused by building too many houses (and not by, e.g., his foreign adventures).

"Bush: And as people are now beginning to see, Iraq is changing, democracy is beginning to tak[e] hold. And I'm convinced 50 years from now people look back and say thank God there was those who were willing to sacrifice.

"Curry: But you're saying you're going to have to carry that burden … Some Americans believe that they feel they're carrying the burden because of this economy.

"Bush: Yeah, well --

"Curry: They say -- they say they're suffering because of this.

"Bush: I don't agree with that.

"Curry: You don't agree with that? Has nothing do with the economy, the war? The spending on the war?

"Bush: I don't think so. I think actually, the spending on the war might help with jobs.

"Curry: Oh, yeah?

"Bush: Yeah, because we're buying equipment, and people are working. I think this economy is down because we built too many houses."

[John in Nashville]

Senator Obama would likely do better in regard to civil liberties than the last president who had previously taught constitutional law. And I doubt that any differencs between the University of Chicago and the University of Arkansas Law Schools is the reason.

[Nell]

Better than either of the Clintons on civil liberties? Probably, but what a low bar.

The more convincing part of the op-ed draws a contrast between a top-down, passive approach of reliance on judges and the active building of political support. Given the extent to which the federal bench has been filled with rightists and authoritarians over the last 25 years, leaving it to the courts would be inadequate to protect constitutional rights and civil liberties in an ordinary moment, much less to restore them after years of assault.

So I certainly hope that a President Obama would apply his coalition-building and persuasive gifts in the service of that restoration.

What's not at all clear to me is how he views the role of investigation and accountability for large-scale violations of constitutional rights in that effort.

[Brett Bellmore]

I really, seriously get tired of the notion that Democrats, in particular the self appointed 'civil libertarians', are, of course, good on civil liberties.

Only if you exclude all the civil liberties Democrats don't like. Property rights. Freedom of political speech. Gun ownership.

Neither Hillary nor Obama, so far as a quick search could determine, (Or the Coalition for Property Rights' more extensive search.) have bothered to address the Kelo outrage. McCain, much as I loath him, has.

McCain, of course, is singularly bad when it comes to the core of the 1st amendment, freedom of political speech. Alas, being singularly bad on this issue for a Republican just makes him average for a Democrat, and freedom of political speech would fare very badly indeed under either Obama or Clinton.

And, again, McCain isn't too bad on the 2nd amendment, Clinton is awful, and Obama is pure poison.

These are issues a LOT of people care about. Genuine civil liberties. Much as Democrats would like to pretend otherwise.

Better retitle that, "The Democrats and Some Civil Liberties".

[Jesurgislac]

Only if you exclude all the civil liberties Democrats don't like. Property rights. Freedom of political speech. Gun ownership.

Can you show me any examples of any Democratic politician doing anything as destructive to freedom of political speech as Bush's minders have routinely done to ensure that Bush is never faced with so much as a t-shirt or a button indicating political opposition?

Can you show me any examples at all of Democratic politicians passing legislation or arguing against "property rights"?

As for "gun ownership"... one of these things is not like the others.

[Brett Bellmore]

"Can you show me any examples of any Democratic politician doing anything as destructive to freedom of political speech as Bush's minders have routinely done to ensure that Bush is never faced with so much as a t-shirt or a button indicating political opposition?"

Campaign 'reform'. There's little of it, beyond disclosure, that ISN'T destructive of freedom of political speech. The whole freaking point, if you haven't figured it out, is to silence people incumbents don't want talking, at the time when the voters are listening.

"Can you show me any examples at all of Democratic politicians passing legislation or arguing against "property rights"?"

The Supreme court recently took a major civil liberty, and essentially razor bladed it out of the Bill of Rights. Wanna tell me what the Democratic politicians did to FIX this? They don't even want to TALK about it, because they're freaking GLAD that it went down that way, but know that position is unpopular.

"As for "gun ownership"... one of these things is not like the others."

Only in the respect that you really, really hate that particular civil liberty.

You Democrats are so invested in the idea of yourselves as 'civil libertarians' that it's not enough to be better, net, than Republicans on civil liberties. No, you've got to be better on Every. Last. One.

Even if it requires denying the ones you're bad on ARE civil liberties.

[Brett Bellmore]

Stupid unclosed html...

[superdestroyer]

Brett,

You also forgot that Senator Obama supports assigning students based upon race, supports separate and unequal admission standards for college, magnet programs, and supports different government contracting standards based upon race, gender, and ethnicity.

Senator Obama believes that the government can grant, end, limit, or regulate any civil liberty anyone has as long as the government has a compelling interests in doing it. Senator Obama also believes that social engineering, social justice, and group guilt are compelling interests that the government should act upon. Senator Obama believes this even though the term Compelling Interest cannot be found in the constitution.

[liberal japonicus]

Brett,
I've got a question that I hope you'll take as an serious one. How do you factor technological advance into your defense of gun ownership? The 2nd amendment was written at a time when a weapon was at best, 3 rounds a minute, with concomitant accuracy and range problems, plus length of over a meter. You seem pretty absolutist on the right to bear arms, what level of technological change would have you say wait a minute, I don't see why anyone would need to have one of those. So where do you draw the line and why?

[Brett Bellmore]

The 2nd amendment was intended to create an armed populace from which a militia could be expediently raised, already armed and familiar with the use of those arms. It was intended to create and maintain that populace, even in the event the government became hostile to the militia system. And it was meant to make sure the populace would be sufficiently armed to, together with the advantage of vastly outnumbering the military, be able to cope if the government turned it's own army on the people.

The appropriate arms to protect, if that's what you are setting out to do, are arms comparable to those you expect the average soldier to carry in war. From this perspective, the government itself decides what the relevant arms are, when it equips it's own troops.

Currently that would be combat knives, moderately powerful handguns, and assault rifles. Those are the common arms across the military, issued to each soldier as he or she completes training.

Note that the average soldier leaving Ft. Dix isn't handed a suitcase nuke or a spray bottle of Sarin.

It is, of course, reasonable to apply time, place, and manner regulations to the use of weapons. Although out here there's plenty of room to practice with hand grenades, I wouldn't want my neighbor doing it at 3:00AM.

Similarly, we might reasonably require people to have decent backstops when they do their target practice, and to only carry weapons loaded under circumstances where responsible use is practical. (No defending your apartment with a .50BMG rifle, which might hit somebody five apartments over after passing through a burglar.)

[Porcupine_Pal]

Barack Obama, among all of the candidates, offers the greatest liklihood for an at least partial restoration of the 'rule of law' in the next Administration.

The lawlessness of the Bush bunch, apart from the nepotism and favoritism, has been the illegal arrogation of power in the Executive. Sure, a somnolent, paid off Congress has abetted the illegal activity.

The problem is that the successor to the office will have little motivation to shed that new found power, legal or illegal. The system can only bear so much abuse. The executive breaks laws and treaties; the legislature takes its earmarks and lets impeachable offences slide; the judiciary (on idealogical(!) grounds) looks the other way. When checks and balances stop working, we can only depend upon personal ideals.

Obama is the least coopted candidate, with the strongest personal resume in the area - as noted by the libertarian article. God help us, I don't see a clear way out of this without him.

[Brett Bellmore]

I doubt Obama's commitment relative to Bush, to the rule of law. Obama is openly approving of the notion, contrary to that rule, that a good excuse trumps explicit constitutional language. I suspect the only real difference between his attitude towards executive power and Bush's is that he's currently a legislator. Should he become the executive, expect his views on the supremacy of good policy over adherence to the actual text of law to have depressing implications.

More than any recent election, we are faced this year with a choice of evils. Civil liberties, honestly understood, are going to suffer no matter who wins this election.

[liberal japonicus]

Thanks Brett, for your response. Just to probe a bit more, how would you answer the argument that it is more practical to do something like prevent someone from having hand grenades rather than trying to enforce laws as to time and place they could use them? And if you accept sensible time and place restrictions, why not adopt a scheme where guns ownership is coupled with a restriction on where the guns can be stored (i.e at a shooting club or the like)? I understand you are going to suggest that self defense is then not possible, but certainly, hand grenades and semi-automatic weapons are not something that are needed for home defense.

[Phil]

Brett Bellmore, addressing Jesurgislac:

You Democrats . . .

As a citizen of the UK, I seriously doubt that Jes is a Democrat, registered or otherwise. And were she a citizen of the US, her own politics are farther left than the Democrats, so I doubt she'd support them much even then.

Perhaps, when you get yourself worked up into one of your frequent self-righteous rages, you ought to take a couple deep breaths and consider the particulars of who you are addressing.

Or not. Whatever you think works for you.

[wonkie]

Concrete vs. abstract thanikers. Concrete thinkers have troulbe understanding abstractions. Their values are materialistic or rooted in and limited to their own emotions and experiences: gunownerre ship and preperty rights in genereal, disdain for "social engineering" unless it helps them, less understanding of or interested in freedom of speach, press, or religion.

Some people who are very concrete in their thinkinng are unable or nearly unable to concieve of a proper use for political power beyond cutting their taxes while fundinng their services and pandering to their fears. Hence the existance of Republicans.

On the other hand there are people who are very comfortable with abstract ideas and appreciate deeply the importance of mainntaining freedom of press, speach, religion. They also understand the political power must be used actively to maintin those freedoms. They have less use for things which are largly symbolic and, since they are capable of understanding and responding to experiences other thhan their won, they arre willing to us governmental power to assist people other than themselves. So there will always be liberals.

I equared concrete operations thikwers with Republicans rather than conservatives because there aren't any conservatives in the real politicallife of the US. There are only people who call themsleves conservatives but who are repudiated by the othere people who call themselves conservatives when people wh call themselves conserrvatives are losing elelctioons.

[Phil]

Oh, and this:

The Supreme court recently took a major civil liberty, and essentially razor bladed it out of the Bill of Rights. Wanna tell me what the Democratic politicians did to FIX this?

Er . . . Kelo was decided in 2005, when the Republicans still controlled the Congress, which they would until January 2007. What exactly did they do to FIX this?

I mean, we all know how much Republicans generally favor supporting the little guy and individual homeowners over wealthy land developers and business owners, so surely they did something. Can you please inform me in depth and with footnotes as to what that something was?

[Brett Bellmore]

"but certainly, hand grenades and semi-automatic weapons are not something that are needed for home defense."

Hand grenades, unless dramatically down powered, would not be suitable for home defense. (Flash-bang grenades might be handy, though.) Semi-automatic firearms, OTOH, are simply firearms which reload the chamber automatically after each trigger pull, but which do not continue firing so long as you keep the trigger depressed. They are perfectly suitable for home defense purposes.

I'm afraid you've fallen victim to one of the anti-gun movement's more successful PR efforts: It's drive to confuse people into thinking that "semi-automatic" firearms are machine guns.

On the storage issue, requiring somebody to store their arms in a remote, central location would most assuredly "infringe" the right to keep arms. As well as having little purpose save to facilitate confiscation.

If there weren't an extensive history of firearms confiscation, requirements for centralized storage would merely be pointless. However, when a right has a history of being deliberately violated, actions which have no utility except to facilitate violation must be viewed in that light.

[liberal japonicus]

I'm afraid you've fallen victim to one of the anti-gun movement's more successful PR efforts: It's drive to confuse people into thinking that "semi-automatic" firearms are machine guns.

I'm afraid you are wrong. Being from Mississippi, I have a fair bit of experience with firearms, and I am of the opinion that anything that helps one fire without thinking is not really a good thing, especially for home defense. Plus the fact that a shotgun is certainly safer and more effective as a home defense weapon.

You acknowledge that things like proper 'backstops' are important, yet you claim that storing them at facilities that would provide such conditions would infringe on their rights. This seems a bit contradictory.

I'd be interested if you would also support the idea that gun rights for felons should be restricted and if so, why. I'd also be interested in seeing some examples of firearms confiscation in America because of centralized storage, as I am trying to think of actual incidents of such, but am coming up with a blank.

[Hartmut]

Just to spit in the soup:
Depending on the model many* "semi-automatics" are actually fully automatic with an interruptor than can be removed and for several other models the semi to fully conversion requires only the replacement of a single part

*esp. those that were originally developed for the military, not your average hunting rifle.

[superdestroyer]

Wonkie,

If abstract thinkers are liberals and support freedom of speech, press, religion, association, then why is it that liberal universities are the ones with the oppressive speech codes, limits on western religions, limits on freedom of association, and limits on press even to the point of handing out leaflets on campus. Why do liberals have such difficulty with the idea of individual freedom and the unconstitutional aspects of group benefits and group punishment?

[hilzoy]

superdestroyer: first, private universities, at least, can make a case that having speech codes does not affect any constitutional right. Second, and more to the point, most universities don't have them.

[Brett Bellmore]

LJ, my home defense gun is a Colt 45 long single action revolver, loaded with Glaser safety slugs. (I reserve the politically incorrect 9mm Calico for murdering tin cans in the backyard, a task it's admirably suited for.) So I suppose our home defense philosophies aren't so far apart. But we're talking about a right here, not a privilege. Taking rights seriously means you don't get to ban everything but best practice, but instead can only ban genuine abuses.

[cleek]

then why is it that liberal universities are the ones with the oppressive speech codes, limits on western religions, limits on freedom of association,...

get ready to smell the freedom!

did you know that you can't listen new age, jazz, rock, and country music, at Bob Jones U ?

and did you know that "you may not possess or play computer and video games rated T, M, A, or E10, or having elements of blood and gore, sensual or demonic themes, or featuring suggestive dress, bad language, or rock music," at BJU?

and did you know that "residence hall students may not watch videos above a G rating when visiting homes in town and may not attend movie theaters," at BJU?

and did you know that "posters of movie and music stars and fashion models are not permitted. The subjects of personal photos should not exhibit immodesty or inappropriate physical contact," at BJU?

well, you do now

freedom!

[OCSteve]

LJ: I'd also be interested in seeing some examples of firearms confiscation in America because of centralized storage, as I am trying to think of actual incidents of such, but am coming up with a blank.

I can’t think of any specific examples either, but I think that with centralized storage the weapons are pretty much already confiscated. Who has the keys? How do you get access? Do you have to prove somehow that you are going to the range? Can you retrieve your rifle if it is not hunting season?

Given how weapons were confiscated in the aftermath of Katrina, I can certainly see authorities deciding that no one can access their weapons following a natural disaster, the very time that they may need them the most.

hand grenades and semi-automatic weapons are not something that are needed for home defense

Well, the thought of some of my neighbors having hand grenades hanging around would tend to make me side with you on this point. I’m a strong supporter of the second amendment, but I don’t believe that we need to own military grade weapons. I don’t agree with Brett that it makes sense (any more) that the citizenship needs to be equipped to take on the military. I agree with the principle, but given that the military has the heavy artillery and the aircraft and the bombs I just don’t think it is realistic today even if that is what the founders intended. On semi-automatics or even full automatics I’ll just repeat a point I’ve made before: a bolt-action deer rifle that you can buy at Wal-Mart with a good scope represents a potentially more lethal weapon.

[Brett Bellmore]

As for firearms confiscations due to central storage, see the American Revolution, beginning of. That's what the British were up to when the shot heard 'round the world was fired.

Should firearms rights of convicted felons be restricted? It's not unconstitutional, anyway, but IMO bad policy: It doesn't effectively disarm those who still intend to use firearms for evil, while subjecting everybody else to all the hoop leaping we've gotten used to in the last few decades. Maintaining a system of seperate classes of citizenship just so that we can pretend to disarm criminals is both stupid, and a temptation to expand that second class in order to disarm more people. As with the Lautenberg amendment, for instance.

[Porcupine_Pal]

If guns were regulated (not controlled) and discussed, like autos, we could cut through this morass, regardless whether the 2nd Amendment addresses an individual or collective right.

Guns cause harm in limitless situations. e.g. Dick Cheney, domestic violence, robberies, suicides. The risk cannot be eradicated; it can be mitigated. The low hanging fruit is in impulsive, and criminal behavior.

Central registries recording ownership and transfer, mandatory liability insurance, and 'rules of the road' would provide a latticework of incentives that could substantially reduce the growing carnage. Think about it.

Thanks,

[ThatLeftTurnInABQ]

The 2nd amendment was intended to create an armed populace from which a militia could be expediently raised, already armed and familiar with the use of those arms. It was intended to create and maintain that populace, even in the event the government became hostile to the militia system. And it was meant to make sure the populace would be sufficiently armed to, together with the advantage of vastly outnumbering the military, be able to cope if the government turned it's own army on the people.

The appropriate arms to protect, if that's what you are setting out to do, are arms comparable to those you expect the average soldier to carry in war. From this perspective, the government itself decides what the relevant arms are, when it equips it's own troops.

Currently that would be combat knives, moderately powerful handguns, and assault rifles. Those are the common arms across the military, issued to each soldier as he or she completes training.

Brett,

If you are going to tether 2nd amendment rights to changes in weaponry so that an armed citizenry maintains rough parity with the govt., don't you also need to address changes in tactics?

18th Century armies were more infantry centric than their modern counterparts - the Redcoats at Lexington and Concord could not call in airstrikes, and the artillery of the day was (by 21st Cen. standards) useless except when fighting against a relatively static position. IIRC the 1st World War was the first large scale conflict in which more casualties were caused by artillery than by small arms fire. If the purpose of the 2nd amendment is to give me and a few million of my friends parity with the US Army, then why do they get to use combined arms tactics and weapons, and we don't? Or to put it another way, aren't you cherry picking which segment of the military to maintain parity with?

Another thing that has changed since then is that the Bill of Rights was written during a period when the prevailing military model of small standing armies staffed by long-service professionals (because of the extensive drilling required to effectively execute 17th/18th Cen. tactics) was in the process of being replaced by a different paradigm, with much larger short-service conscript armies coming into vogue. The American Revolution, and the wars of the French Revolution and Napoleonic Wars ushered in this change. The new era of mass conscript armies lasted thru the remainder of the 19th and 20th centuries. But now the increasing sophistication of 21st Cen. weaponry appears to be taking us back to the older small long-service professional army again. I'm not sure that your idea that the 2nd amendment gets an inflationary COLA to keep up with the times is going to work very well as we go thru this transition.

You might want to take a look a Phillip Bobitt's "The Shield of Achilles", which contains some intriguing ideas pertinent to this question about relationships between changing military regimes and constitutional law regimes. IIRC he doesn't address the 2nd amend. in the US BOR, and he seems more right than left in his political leanings, but I'd recommend it to anyone regardless of their politics.

[ThatLeftTurnInABQ]

To pull back and generalize this issue, it seems to me that there are some specific areas where the US Constitution is starting to show its age most acutely, because our society has changed most dramatically (since the late 18th Cen.) in these areas. I think transportation, communications and the military are especially notable in this regard. This is why we have so many disputes over constitutional issues regarding 1st and 2nd amendment rights, and the war powers tug of war between the WH and Congress.

[OCSteve]

Back to the article, I was a little shocked by this:

Moreover, the core constituency that cares intensely about civil liberties is a distinct minority — some polls estimate it as around 20 percent of the electorate.

20%?!? I’m having a hard time believing that number. I’d like to see these polls and exactly how the questions were framed.

OT: HRC was very very good on SNL last night. Very funny, poking fun at herself. It was probably the most humanizing appearance for her that I have ever seen.

[cleek]

oh, and not surprisingly, all firearms at BJU are collected and held in central storage. trigger locks are mandatory.

freedom!

[mikkel]

The wikipedia entry on this page is interesting, especially looking at the different versions.

Here was one version:
"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."

It had a conscientious objector clause!

Here was the final Senate version:
"A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed."

And the one ratified by the states:
"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

So the early version made it pretty clear that it was about regulating militias, then the senate version still sounds like that because it says it is the security of the state (which at that time it was since there were no standing armies and the states controlled almost all defense. In fact Madison wrote that he didn't think it was necessary to have the amendment because the Federal government could never raise a force more powerful than the state governments) but the final version makes it unclear.

But wait, there is this!
The right to keep and bear arms was not to be inserted in Article I, Section 8 that specifies Congress's power over the militia. The sentence that later became the Second Amendment was to be inserted in the Article I, Section 9, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights asserted by individuals as a defense against government action.

So that makes it sound like it's an individual right.

However, Article I regulated Congress, not the states, so the states could probably do whatever they wanted. Except the 14th of course expanded it to the states, if it indeed was a privilege.

Of course, "bear" seems to have been exclusively a term used for military service and so how does "keep" relate? Does it mean "keep and [then] bear" or just "keep" as in use every day but there is also an explicit right to militia service? If there is a right to militia service does that mean that any infringement on women/gays/high school dropouts/etc. serving are unconstitutional?

Also apparently a large portion of political writing back then used Latin grammar rules where there the first part of the sentence explains the specific context that the rest of the sentence pertains to. But some parts weren't. And they kept modifying the punctuation so it's difficult to infer meaning.

I think Jefferson's call to have a new Convention every hundred years is a good idea, because I can honestly say that I have no idea what they actually meant by the Second Amendment.

[Nell]

Brett, I'm so pleased to see you're opposed to invidious restrictions on felons who've served their time. I take it that means you're for restoration of voting rights as well as gun ownership rights.

[hilzoy]

Back to the original op ed: at the moment, I do not think there is a serious and plausible threat to the right, if you think there is one, for individuals to bear arms. There are, however, huge threats to the separation of powers, the President's duty to abide by the law, the Congress' war powers, the right not to be imprisoned without charges or trial, and the fourth amendment. The idea of having a President who respects these, and who is moreover willing to make a serious case for them, makes me very happy.

[KCinDC]

OCSteve, I was disappointed to see that SNL essentially repeated the opening skit from last week instead of producing a parody that actually had some resemblance to what happened in the most recent debate. I was hoping for a "Russert attacks!" skit ridiculing Russert's inane gotcha questions to both candidates. Instead we got a skit from a parallel universe in which Russert was obsequious toward Obama and the endless Farrakhan badgering never existed.

Also, Fred Armisen really needs to work out an Obama impression that's recognizable as being Obama.

[mikkel]

I also think that it's easy to forget (but plainly obvious when reading history) that the Founding Fathers agreed that they didn't like Europe's way of doing things but vehemently disagreed about how things should be done. A lot of the compromise was not "oh we reached an agreement that we are completely happy about" as much as leaving leeway for the competing sides to fight it out in the political arena. Which they did. Using a lot of the same awful tactics that politicians use today.

To me originalism is silly because the original intent in much of the Constitution was to provide a very broad framework which people could then fight about. Even habeus corpus has a suspension clause that is arguable about when it is appropriate to suspend it.

[Ugh]

20%?!? I’m having a hard time believing that number. I’d like to see these polls and exactly how the questions were framed.

Too high or too low? IIRC, there have been several polls of the American populace that show that if the Bill of Rights were put up for a vote, it would be soundly defeated.

Isn't the DC handgun ban before SCOTUS now? Should be an interesting decision, especially with the administration siding with DC, IIRC.

If someone like Akhil Amar can change his mind and decide that the 2nd amendment protects an individual's right to bear arms, then I'm just going to have to agree (full disclosure: I took a con law class from his brother).

I don't think the relatively free availability of guns in the U.S. is a root cause of violence. We just live in an extremely violent culture (by Western standards, at least), and the availability of guns just makes the consequences more lethal. I don't know how one deals with that, though.

[superdestroyer]

Hilzoy,

You may have forgotten that while Chancellor at the University of Wisconsin (a public institution, Donna Shalala instituted a speech code. From her Wikipedia entry:

(Donna Shalala) next served as Chancellor of the University of Wisconsin-Madison, where her two of her policies were a source of great controversy. Under her chancellorship and with her support, the University adopted a broad speech code subjecting students to disciplinary action for communications that were perceived as hate speech. That speech code was later found unconstitutional by a federal judge.

Remember this year when the University of Delware (another public insitituion) had to stop a blatant brain washing exercise in its dorms. It was not the right pushing for the questionaires about sexual practices and relgious beliefs.

[Incontinentia Buttocks]

I would think that job #1 for SNL would not be more precisely parodying the latest presidential debate, nor even finding someone who can more plausibly play the likeliest next president of the United States.

I'd suggest that they focus first on being consistently funny again.

[hilzoy]

superdestroyer: thus my use of the word "most" ("most universities don't have them.")

[dajafi]

As hilzoy implies, the Obama/Clinton divide over civil liberties mirrors their policy differences written more broadly. In short, Clinton is a top-down thinker, a True Believer in the Old-Time Liberal faith in judges, Ph.Ds, and other experts who should be empowered to tell us exactly what to do--and that we'll do as they say, or suffer the consequences.

This extends, unfortunately, to the powers and prerogatives of the presidency itself--which was the first reason I was so scared of her prospective tenure in the White House. In terms of secrecy and arrogance, she's not at Bush's level, but she's much closer than any Democrat I could readily support.

Rather than that deference to (unelected) expertise, Obama is a bit more attuned to reality as most of us experience it, in which the theories don't always translate and things tend to get messy. And I think he appreciates at a gut level that the powerful, in and out of government, don't always deserve the benefit of the doubt--perhaps because, as a community organizer, he was sometimes on the receiving end of their power. He'd rather reach toward a consensus on civil liberties that primarily involves small-d democratic majorities, rather than the judges and academics to whom the Clintons tend to defer.

[Jesurgislac]

Brett: The 2nd amendment was intended to create an armed populace from which a militia could be expediently raised, already armed and familiar with the use of those arms. It was intended to create and maintain that populace, even in the event the government became hostile to the militia system. And it was meant to make sure the populace would be sufficiently armed to, together with the advantage of vastly outnumbering the military, be able to cope if the government turned it's own army on the people.

And given that quite literally none of that applies now - what is the purpose of the Second Amendment?

The only sensible defense of it I've seen is that it's a "no brown M&Ms" civil liberty - retention/respect of the 2nd Amendment is a touchstone indicating that civil liberties guaranteed by the Constitution will be respected no matter how pointless they are.

Running through this in more detail:
he 2nd amendment was intended to create an armed populace from which a militia could be expediently raised, already armed and familiar with the use of those arms.

True, historically. And Switzerland has historically a similar right to bear arms and from that right has indeed developed an armed population along those lines. The US hasn't, and there appears to be no attempt nor intent to regulate gun ownership and to train citizeens along Swiss lines. Such might be a good and useful thing to do: but the US isn't doing it, and as doing so would require gun regulation of a kind the NRA would oppose, I don't suppose the US ever will so long as the NRA is a force in American politics.

It was intended to create and maintain that populace, even in the event the government became hostile to the militia system.

And that intention has completely failed. Without regulation and training along Swiss lines, it was bound to fail.

And it was meant to make sure the populace would be sufficiently armed to, together with the advantage of vastly outnumbering the military, be able to cope if the government turned it's own army on the people.

"Be able to cope" in the sense that the armed Iraqi populace are "able to cope" with the US military? The most effective weapon the Iraqi resistance have against the US military is not guns as such: it's explosives. The most effective weapons a US resistance movement would have against Blackwater, should the US government turn them loose against the US populace as they have done in Iraq, would likely not be guns - an armed militia, possibly, but as noted above, gun ownership does not translate to being able to be part of a "properly regulated militia".

Excuse if these points have already been dealt with upthread by others: I'm in a rush but wanted to respond to Brett.

[KCinDC]

True, IB, but that might be too much to hope for. And even if they did achieve humor, that's not sufficient for parody. If you're trying to parody Thing A, then creating something funny and slapping a sign on it that says "Thing A" isn't enough. The funny thing should be recognizable as Thing A without the sign.

Of course creating something unfunny that isn't recognizable as Thing A is even worse.

[OCSteve]

Too high or too low?

I’m shocked it’s that low.

I'd suggest that they focus first on being consistently funny again.

I gave up on that sometime in the 80’s.

[cleek]

It was not the right pushing for the questionaires about sexual practices and relgious beliefs.

but the right is working tirelessly (shamelessly, dishonestly) to get Christian creationism into public schools all across the country.

[Phil]

The only sensible defense of it I've seen is that it's a "no brown M&Ms" civil liberty - retention/respect of the 2nd Amendment is a touchstone indicating that civil liberties guaranteed by the Constitution will be respected no matter how pointless they are.

Well, more specifically, this is the analogy you came up with last time around and, pleased as punch with your own cleverness, decided it's the "correct" answer and anybody who differs with you about it is wrong. If that's how we're defining "sensible" these days, then by all means carry on.

[Brett Bellmore]

Jes, there is a vast difference between what a remote foreign government can survive in the way of armed opposition in another country, and what a government can survive in the way of armed opposition in it's home territory, where it must be able to function, supply services, and levy taxes to pay for the military. Most of the standard practices for dealing with an armed insurgency will render a nation barely functional even if the insurgency isn't very popular, and a popular insurgency can destroy a government based on it's own territory by denial of resources, even if it's not remotely capable of matching the military in set piece battles.

So, that function of the 2nd amendment is not nearly as obsolete as some like to think.

"Such might be a good and useful thing to do: but the US isn't doing it, and as doing so would require gun regulation of a kind the NRA would oppose,"

You are greatly mistaken in thinking this. The NRA would be positively delighted by the sorts of regulations necessary to implement a Swiss style militia... As opposed to the sort of regulations that such a militia might be used as a pretext to implement.

Requiring somebody to keep an assault rifle and ammo at their home, and report regularly for practice, after all, in no way requires otherwise disarming them.

[Bruce Baugh]

The interesting thing about the 2nd Amendment, of course, is that it's been tried and explicitly failed in terms of its major justification. We had a president suspend habeus corpus, start torturing random suspects, and explicitly declare himself above all law when acting as military commander...and the 2nd Amendment defenders cheered on virtually everything he did. They not only can't stop tyranny, they help it along - it's not tyranny they actually want to fight but liberalism.

[OCSteve]

Bruce: They not only can't stop tyranny, they help it along - it's not tyranny they actually want to fight but liberalism.

Wow. That’s one for me to think about. (seriously)

Every once in a while some sentence here rocks me back on my heels. That was one of them.

[Brett Bellmore]

In it's own terms, the 2nd amendment was only intended to prevent unpopular tyranny. Alas, in the long run there's nothing at all to prevent popular tyranny, and only feeble obstacles to it in the short run.

One of those feeble obstacles being a legal tradition that constitutional protections must be observed even where somebody claims they no longer serve any purpose...

[stonetools]

Its pretty clear to me that the Second Amendment doesn't formally protect a right to own firearms for the purposes of self or home defense. It is pretty much about the states ability to raise and arm militias. That said, its also crystal clear that the 2nd Am. PRESUPPOSES the continuing existence of an armed populace from which militias could be drawn.
Lets face it, the 2nd Amendment was really based on a scheme for national defense that is outdated and has been for much of the 20th C. Thats the dirty little secret that 2nd Amendment advocates don't want to admit.
I conclude that by saying that there probably is some right to keep a firearm somewhere in the Constitution, but that such right CAN be regulated, to the point of excluding entire classes of arms, so long as there is a rational basis for such exclusion.

[dmbeaster]

Brent: The 2nd amendment was intended to create an armed populace from which a militia could be expediently raised, already armed and familiar with the use of those arms. It was intended to create and maintain that populace, even in the event the government became hostile to the militia system. And it was meant to make sure the populace would be sufficiently armed to, together with the advantage of vastly outnumbering the military, be able to cope if the government turned it's own army on the people.

This misstates the history. The primary purpose of the second amendment was to check the fear of the military power of the new central government to overcome the power of the states. It was not intended to provide for a ready guerrilla army to oppose any alleged state tyranny, but to preserve the power of state militia vis a vis the central government. This is explicitly made clear in Federalist Paper no. 46 by Madison which is constantly selectively quoted or parsed improperly.

For example, here is the key passage:

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. * * *

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

The bolded material is a favorite of gun advocates, who ignore its context as stated above.

The framers really did think of the the second amendment right as attached to militias -- not as an individual right.

Oddly enough for conservatives, the right to keep and bear arms as an individual right is probably grounded in the Ninth Amendment and is right up there with privacy, right to travel, right to refuse medical care and other implied rights retained by the people. If you are going to be a literalist about the rights granted by the Bill of Rights (if it is not written explicitly, the right does not exist), then the individual right concerning arms is not in it.

[Gary Farber]

"Given how many times this has been explained to Bill, I'm beginning to doubt that his writings are made in good faith."

I'm fairly sure he's just genuinely and sincerely dim.

brett to jes:

"As for 'gun ownership'... one of these things is not like the others."

Only in the respect that you really, really hate that particular civil liberty.

You Democrats are so invested in the idea of yourselves as 'civil libertarians' that it's not enough to be better, net, than Republicans on civil liberties.

I could be wrong, but I'm under the impression that Jes is a member of the British Labour Party. That might be wrong, however, and she might be a dues-paying member of another party, or none at all.

I'm pretty sure she's not a member of the U.S. Democratic Party in any sense, though.

But sentences in the second person frequently have this problem.

The problem seems to be exponentially more likely if the succeeding noun after "you" is "Democrats" or "Republicans."

Telling people what they believe, rather than asking them, isn't apt to be the best approach.

[Jeff]

The Supreme court recently took a major civil liberty, and essentially razor bladed it out of the Bill of Rights.

In so far as Kelo reduced the role of the feds in favor of state and local rule, I would think that libertarians would have welcomed it. But apparently not -- The feds should interfere when the all-sacred "property rights" mantra is invoked.

==================

The 2nd amendment was intended to create an armed populace from which a militia could be expediently raised, already armed and familiar with the use of those arms.

And how, exactly, does individual ownership of guns lead to that? The Black Panthers were much more of a "raised militia" than any ten random guys with handguns.

Gun-nuts like to strip out the preamble to the 2nd, because otherwise, they're faced with the intent of the 2nd, which is what you've posted, and is contrary to individual ownership of any gun.

[stonetools]

But now, when our Constitution has been under assault for years, they matter more than ever.

Getting back on track,the problem with such a sentence is that it seems to say that the Bush administration was or is on its way to setting up some Stalinist type police state, rather than the rather limited infringements on civil rights that actually happened.
Concern as to civil rights violations is the right attitude here, but the rhetoric seems overblown.
I think that the OBama Administration's stance on civil rights would be based on the situation. If we had an IRA or intifada type situation, in which bombs were going off regularly in Metro stations downtown , killing scores of people at a time, you would see a less purist approach to civil rights under Obama, no matter what he personally thought.

[Phil]

We had a president suspend habeus corpus, start torturing random suspects, and explicitly declare himself above all law when acting as military commander...and the 2nd Amendment defenders cheered on virtually everything he did.

Yeah, but the problem is that he only did to those people. You know . . . those people.

Gary:I could be wrong, but I'm under the impression that Jes is a member of the British Labour Party. That might be wrong, however, and she might be a dues-paying member of another party, or none at all.

Already covered, nearly five and half hours before you posted. Might want to read the whole thread next time.

[Phil]

Close HTML.

[Jesurgislac]

there is a vast difference between what a remote foreign government can survive in the way of armed opposition in another country, and what a government can survive in the way of armed opposition in it's home territory, where it must be able to function, supply services, and levy taxes to pay for the military.

True. However, how is this relevant? Supposing that Bush calls the Blackwater-etc mercenaries home from Iraq at the end of October, declares the elections off for reasons of national emergency, and sends his mercenary troopers to "arrest" and whisk away to a CIA black hole the ringleaders of any resistance to this executive order - how, exactly, are the millions of guns in the US going to form a effective resistance to this order - bearing in mind that Fox News will be spinning it as a sensible response to whatever the Terrorist Threat Of The Week is?

To coin a phrase: Guns don't resist fascism. People resist fascism.

You are greatly mistaken in thinking this. The NRA would be positively delighted by the sorts of regulations necessary to implement a Swiss style militia.

My understanding was that the NRA strongly opposes Swiss-style gun control: for example, any equivalent of a Waffenerwerbsschein (weapon buying permit) which permits the buyer to purchase up to three guns - but does not permit legal purchase of guns by anyone who has a history of endangering his own life or the lives of others, who is identified as posing security problems, or who has a criminal record. The Swiss also forbid the sale of automatic firearms or selective fire weapons without a special "collectors licence". Even for sale of guns between individuals, the seller is required to make a written contract, a copy of each to be kept for 10 years by both seller and buyer, and the seller has to see evidence that the buyer is either a Swiss national or a foreigner with legal right of residence in Switzerland. Does the NRA really support that level of gun control? Wasn't my impression.

[Gary Farber]

"Might want to read the whole thread next time."

I did, Phil, thanks.

[stonetools]

@Jes:
As far as I know, the NRA regards any federal scheme requiring the registration of firearms or imposing any absolute limit on the number or type of firearms a private individual can buy as the first step to tyranny. I have certainly never heard the NRA head advocating for a scheme as limited as the Swiss one.They do oppose selling firearms to people who have felony records.

[Anarch]

Ah, single-issue-Brett strikes again. I find it kind of amusing that, once again, he's more or less admitted that the only rights he really cares about are more guns and fewer taxes... but hey, who am I to get in the way of a delightful trainwreck?

[Brett Bellmore]

"My understanding was that the NRA strongly opposes Swiss-style gun control:"

To repeat myself, "The NRA would be positively delighted by the sorts of regulations necessary to implement a Swiss style militia... As opposed to the sort of regulations that such a militia might be used as a pretext to implement."

Are you under the impression that every law on the Swiss law books having the slightest relationship to guns is necessary to implement a militia system?

"I find it kind of amusing that, once again, he's more or less admitted that the only rights he really cares about are more guns and fewer taxes"

I listed three, count 'em, THREE, civil liberties issues where Democrats range from not particularly good to positively awful, and did not mention taxes at all.

Democrats tend to actually be better than Republicans on some civil liberties, such as wiretapping. Rhetorically, anyway. But I do seriously object to characterizing Obama as "committed to civil liberties", when the truth is he's a mixed bag. The only candidate at present who's committed to ALL civil liberties is Paul, and he never had any chance of getting the Republican nomination, in part because of that.

[Jesurgislac]

The NRA would be positively delighted by the sorts of regulations necessary to implement a Swiss style militia... As opposed to the sort of regulations that such a militia might be used as a pretext to implement."

In short: the NRA would not support Swiss-style gun control, since Swiss-style gun control is an essential part of forming a Swiss-style militia.

Are you under the impression that every law on the Swiss law books having the slightest relationship to guns is necessary to implement a militia system?

No idea. I don't pretend to know every law on the Swiss law books. But: the principle behind which Swiss gun control is organised is that gun ownership is a citizen's responsibility for national defense. In short; if you are the kind of person who is clearly unsuitable to have in an organised militia, you are the kind of person whom the Swiss will not permit to own a gun: and, just as there are some guns which can be bought without a permit (antiques: guns bought and used for hunting, though I suspect then you need a hunting permit - the Swiss are permit-happy people!) there are some guns which the Swiss don't permit any individual to own. Gun control and gun ownership in Switzerland is organised around the principle of community safety/national defense/citizenship. Gun ownership in the US is not, and to make it so would, in fact, require Swiss-style regulation which the NRA opposes.

[Theodore Sturgeon]

"Might want to read the whole thread next time."

I did, Phil, thanks.

Ah, OK. So you choose to reiterate at length a point already made more than five hours previous for reasons of your own. Good enough.

[Brett Bellmore]

Jes, I think we disagree about whether the Swiss militia system can be disentangled from Swiss gun control laws. I don't think we're going to resolve that disagreement. Suffice to say, at the time the 2nd amendment was written, motivated by admiration for that system, it didn't involve gun control. So apparently the Swiss didn't find it an integral feature.

Theo, have I mentioned how much I loved "Microcosmic God"?

[Gary Farber]

"Theo, have I mentioned how much I loved 'Microcosmic God'?"

You might or might not want to check out the complete stories from North Atlantic, put together by my old friend Paul Williams (Ted's literary executor, and former Phil Dick literary executor), Brett, although frankly a lot of the earlier stories were crap, and to want to read all of them you'd have to be a real completist/fanatic.

But his better short stories were terrific. (Novels, not so much.)

Very easy-going fellow, Ted was. I only had a handful of conversations with him on a handful of occasions, but he was one of the mellower people I've ever met, if not always the most comfortable.

[Brett Bellmore]

Yeah, I met him at a few conventions, a fun guy.

I think I've got most of his works in my library; I'm not a completist by any means, but for many years I was a serious SF fan, and have 2-3000 volumes. I'd donate them to the local library, but the last time I tried that, they turned around and sold an autographed Hugo winner hardcover on acid free paper for $1.50 in their fundraiser. When I complained they said that if they'd realized it was valuable, they'd have marked it up to $5.

[Jesurgislac]

Suffice to say, at the time the 2nd amendment was written, motivated by admiration for that system, it didn't involve gun control.

Only the kind of gun control necessary to a well-regulated militia: the kind of gun control the Swiss impose on their entire culture: and which, to the best of my knowledge, the NRA strongly resist.

You cannot disentangle that kind of gun control from a well-ordered militia, because by definition a well-ordered militia means gun control. Goodness, I'm a pacifist, but I have enough (mostly ex-) army friends to be able to tell you that.

[Brett Bellmore]

"You cannot disentangle that kind of gun control from a well-ordered militia, because by definition a well-ordered militia means gun control."

No, it doesn't. Any more than it means censorship, or denial of any other civil liberty. A militia, in distinction to an army, consists of civilians, who outside of their militia duty retain private lives. The only thing a militia system requires is that the members be properly armed, trained, and disciplined. It in no way requires that anybody outside the militia be disarmed, or that militia members have their liberties with respect to firearms constrained in any way beyond that they ALSO have the right arms and training.

[Gary Farber]

"Yeah, I met him at a few conventions, a fun guy."

It would perhaps push thread drift a bit too far to carry this line of conversation much further without taking it to email, but: what conventions did you go to, when? (Obviously before 1985.)

I'm curious if we were ever at the same convention, as well as to what cons attracted your fancy. (My first sf con was 1972-3, although I had discovered fanzines a bit earlier, and was one of the last people to get active in sf fandom through fanzines first.)

If you'd prefer to go to email, I'm at gary underscore farber at yahoo. On the other hand, there are other regulars here who have been active in sf fandom to one degree or another, as well as a bunch more who are (or have ever been!) sf readers.

(Or, sigh, "sci-fi" readers.)

[Gary Farber]

I'm going to go out on a limb, though, Brett, and guess that as sf publishers go, you read a fair amount of Baen Books.

And I'll go out on a tentacle and figure that you know who Anson MacDonald was, and that you like some of the works he wrote under one of his other names.

:-)

[stonetools]

@brett;

"It in no way requires that anybody outside the militia be disarmed, or that militia members have their liberties with respect to firearms constrained in any way beyond that they ALSO have the right arms and training."

The problem with this is that the military DOES restrict what kinds of armaments it issues to soldiers who go into combat. a rifleman gets a fully automatic rifle, combat knife, and hand grenades but no sidearm. [A sidearm is commonly called a handgun in civilian parlance:-)].On that reckoning, it seems that handguns fall into the category of weapons that CAN be controlled, since its not part of the kit of a normal rifleman.
Things get complicated when you consider that regular infantry also include weapons platoons,which use mortars, antitank rockets, and machine guns. On your own formulation, Brett, you should be able to control handguns, but not hand grenades, automatic rifles, or antitank rockets.

[felix culpa]

Primary admiration for Mikkel’s contributions.
Second, admiration for all for the mutual respect that distinguishes the disputes in this thread.
As I gauge it, no one until Jes at 1 PM seemed to lay any emphasis on the well-regulated element.
Does this raise red flags for the NRA and its friends who fear ‘government regulation’?

Brett, in your 2:08 post, I can’t make coherent sense of the first paragraph. Since I’ve followed the discussion to that point (except for inability to decipher IIRC,) I assume the fault isn’t necessarily mine. Maybe you can make an effort to clarify?
Pursuing that, if the second amendment dwells with well-regulated militias and by implication— yes?— excludes citizens not in a militia from explicit discussion, is the situation of non-militia-member citizens spoken to in the Constitution at all?

[Brett Bellmore]

"and by implication— yes?— excludes citizens not in a militia from explicit discussion, is the situation of non-militia-member citizens spoken to in the Constitution at all?"

Since the amendment in question quite clearly says, "right of the People", not, "right of the Militia", yes, the situation of non-militia member citizens IS spoken to in the Constitution: In the Second amendment. You've made an error on a par with those who imagine that freedom of the press is a right only of journalists.

Oh, and keep in mind that the time labels are dependent on one's local time. Not that I can find a comment an integral number of half hours off 2:08, either. Probably best to quote, if you want amplification. Don't expect a quick response, though, I've got a busy day ahead of me.

[Jesurgislac]

Brett: The only thing a militia system requires is that the members be properly armed, trained, and disciplined. It in no way requires that anybody outside the militia be disarmed

The way the Swiss conceive of a citizen militia is that all citizens who are able to be in a militia may be armed: and all male citizens are in the militia if they're capable. The Swiss have no problem making sure someone can't bear arms if they're a citizen whom no sane person would want in a well-regulated militia, because the right to bear arms is seen, in Switzerland, as a means of defending the country, not as an end in itself. In the US - certainly from Brett's arguments - the right to bear arms appears to be an end in itself: justifications for it tend to flail a bit.

Switzerland is a hopeless parallel to the US, of course, because Switzerland is formally and traditionally organised to use the citizen militia for self-defense in case of invasion, and - because of geopolitics - has had reasonable cause to protect itself against invasion during much of its 700+ year history. This doesn't - and really, can't - apply to the US. If a US government set out to create a citizen militia in the US along Swiss lines, the first question would be, fairly, why? It's not if the US is at risk of land invasion from surrounding hostile countries.

Brett suggested upthread that a good reason for having a citizen militia is to protect the people against the government if the government uses the military against them. The only recent "citizen militia" which I'm aware of that raised arms to defend the American people against the government was the Black Panthers, and I don't think it's any coincidence that they were also/are still the most vilified/mistrusted group of civil rights campaigners. Not that black Americans didn't have more cause than most Americans - up until 2001 - to mistrust the government and want protection against it, but that demonstrably, raising a citizen militia is a lousy way to protect yourself against government betrayal.

[Brett Bellmore]

Jes, I think your analysis of why the militia system failed in the US is right on target: Unlike the Swiss, there was no reason for the government to see it as vitally important that every available body be armed. For the Swiss it was a matter of national survival, for the US little more than ideological approval.

A difference, of course, which does not repeal the 2nd amendment. THAT would require resort to Article V. And that would be reason enough to respect the right, even if it didn't have other justification. (Most people tend to regard having multiple reasons why something is a good idea as reenforcing, not "flailing".)

I'm rather surprised, though, that you noticed the Black Panthers, and completely missed the rise of the militia movement here. That movement was rather larger than the Black Panthers, and also motivated by a serious grievance: The increasing frequency with which federal law enforcement was openly murdering Americans. A practice they've since abandoned, in no small part because of that movement. If they resume it, the militias will be back again.

[Phil]

Um. Federal and local law enforcement still openly murder plenty of people. They just usually happen to be black people, which tends not to get the militia movement too incensed, given their partial roots on racist claptrap like the Turner Diaries, and their increased focus -- via the Minutemen et al -- on "guarding our borders."

The militia movement is/was also thoroughly married to tax cranks and the retarded "Sovereign Person" theory and a whole raft of NWO conspiracy theories. I'm not sure how things like nuisance liens and hoarding gold support the apparently noble goal of protecting innocent Americans from murderous Feds, but I'm sure you can explain it.

Of course, I'm still waiting for details on what the Republicans did to "FIX" the Kelo decision prior to 2007.

[Brock]

Good article. Thanks for the link.

You said this was from the Washington Post, but the link is to the NYT. Is this just a typo? Or was it also in the Post? Just curious.

[Slartibartfast]

I'm still waiting for details on what the Republicans did to "FIX" the Kelo decision prior to 2007.

You and a bunch of other people, Phil. It's just one of many reasons why they lost my vote.

[russell]

The 2nd amendment was intended to create an armed populace from which a militia could be expediently raised, already armed and familiar with the use of those arms. It was intended to create and maintain that populace, even in the event the government became hostile to the militia system. And it was meant to make sure the populace would be sufficiently armed to, together with the advantage of vastly outnumbering the military, be able to cope if the government turned it's own army on the people.

Couldn't agree more.

Everything I have to say on this has more or less been covered upthread, but my personal high points would be these:

Nothing in your statement is inconsistent with reasonable limits on gun ownership. In my personal world, "reasonable limits" include things like limits on the kind of ordinance that can be personally owned, and/or requirements for background checks or training before ownership is allowed.

You can't yell "fire" in a crowded theater.

As Jes and others have noted, the closest real-world thing to what you're talking about here is the Swiss military.

Most male Swiss citizens, and lots of female Swiss citizens, are in the military. Rank and file Swiss militia members are trained in the operation of their guns during basic training by members of the relatively very small professional army, and are required to attend regular exercise and practice.

They are issued an automatic assault weapon, which they keep at home, and are issued exactly 50 rounds of ammunition for use as needed in self-defense if they are mobilized. Additional ammunition is issued at the mobilization point (if they're mobilized), or as needed for target practice or other military drills. It is strictly forbidden not only to use those 50 rounds outside of mobilization, but even to break the seal on the package they come in.

That's what a modern, real world version of the founders' vision of keeping and bearing arms looks like. The Swiss, BTW, were a democracy with a highly federal political organization long before Thomas Jefferson was a gleam in his old man's eye.

Regarding what we all did back in ye olde colonial days, my town and the towns around me are dotted with powderhouses, where the military ordinance of its day was kept under lock and key until needed for drilling or for military mobilization. For home use, folks kept a musket or a long rifle, both primarily for hunting.

That's what keeping and bearing arms looked like in real life during the lifetime of the founders.

As I understand it, the idea behind the citizen militia was less to provide a citizen force whose ordinance was at parity with that of the professional army, but that there *would not be* a professional army. None. At least, not one of any significant size.

If your goal is purely national self-defense, that's not a bad way to go. If your goal is to be able to project overwhelming power anywhere in the world, at any or all times, it's not.

I'd love to see us reorganize our national defense along the lines of what Brett calls for.

In the meantime, some folks just like guns. That's great, we all have our hobbies. Shooting is a lot of fun. But none of us get to enjoy our hobbies without regard to the safety and well-being of everyone else.

Thanks -

[hairshirthedonist]

I like reading russell's comments. It's like reading what I would write if were smarter and more patient and knowledgeable.

[russell]

Holy cow.

Many thanks for the kind words HSH. I can assure you that what you describe is generally how I feel here, reading everyone else's stuff (yours included), on any given day.

Thanks -

[Jeff]

I'm rather surprised, though, that you noticed the Black Panthers, and completely missed the rise of the militia movement here.

I'm the one who noted the Black Panthers. I specifically did NOT include the "militia movement", since I have never seen anything even remotely "well-regulated" about them.

[Jesurgislac]

That movement was rather larger than the Black Panthers, and also motivated by a serious grievance

About as serious as the fantasy that right-wing Christians have that they're being "persecuted".

Whereas the Black Panthers were actually responding to a real threat: albeit, not in a way I would support.