Archive for the ‘gun control’ Category

Originalism and the Second Amendment

This is all very simple since according to people who claim to believe in Originalism, “Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy.” Using that definition:

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.

The text of the Second Amendment begins with “A well regulated Militia” which is “necessary to the security of a free State“. The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren’t.  I am not going to get into the grammar of the Second Amendment since that isn’t really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18 th -century readers that the first part of the Second Amendment was bound to the second part in a cause-and- effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent “Second Amendment Scholarship” and totally ignored in the Heller and McDonald decisions because it is “not helpful”.

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn’t need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.

Gun Control Irony

Yeah, yeah. I try not to post this stuff on my blog, but this one is pretty important.  It was posted on Penigma, but I want my other post to get a few more views before this shows up again on that blog.

On the other hand, this needs to get out there.  That said:

It would be really ironic if instead of all the mass shootings the US has suffered (my condolences to the victims and their families of those), that the incident that caused people to realise the US needs gun control is an out of control suburban mother fighting over a notebook in a suburban Wal-Mart.

No, pulling a gun in this situation is not self-defence by any stretch of the imagination.  No one was fearing death or serious bodily injury which would justify even the threat of deadly force.

The woman pulling the gun is committing Felony Assault under Michigan law, Section 750.82.

The offense of Assault with a Deadly Weapon (ADW), is also known as Felonious Assault in Michigan. ADW is felony which is punishable by up to 4 years in prison. ADW is a crime which involves an assault with a deadly weapon (such as a gun or knife) or any other instrumentality which is fashioned or used as a weapon (car, club, bottle) which is capable of inflicting serious bodily injury or death. A criminal charge or conviction does not require actual physical contact or an injury. The offense is considered complete upon placing another in fear of an assault by a person who possesses a deadly weapon

Michigan law requires that the defendant “must have honestly and reasonably believed that he or she was in danger of being killed, seriously injured or sexually assaulted” in order to use deadly force.  Additionally, the defendant “may only use as much force as he or she thinks is necessary at the time to protect himself or herself.”

While a person may believe he or she had acted in self-defense, the police, prosecutor, judge and jury may disagree.

No shots need to be fired for her to be found guilty.

I’m not sure how the “pro-gun” crowd can defend this action.  I know responsible gun owners don’t, but it’s time they stepped up to the plate and admitted this shit happens too often with the relaxing of concealed carry law for it to be condoned.

It’s time to give Presser v Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886) yet another plug.

One of the many failings of the Heller-McDonald bullshit is that those cases were not cases of first impression, but that post is coming in the future.

See also:

What Does Brandishing Mean? And Why You Should Never Do It…

Market Forces for Change

Or as Lenin is supposed to have said, “When we hang the capitalists, they will have sold us the rope.”

One of the things the right and Libertarians like to push is the free market system, which they don’t really like. They like it as long as they can control the rules making it into a game of Monopoly: where they win.

On the other hand, they run scared when their market share is threatened.

The real problem is that there isn’t really a “free market system” out there.  Governmental decisions can act as market forces even if they aren’t set forth as being economically based. For example, building highways rather than public transportation has effected US society in ways which have been detrimental to its interests (or “Detroit: the city that committed suicide by favouring one industry with a very limited lifespan”).

The reason I tossed gun control in here is if the trend for fewer people to want to own guns keeps up, we will have de facto gun control.  The NRA can loosen up laws all it wants, but that may end up backfiring for it as people begin to realise that there was a reason the NRA blocked the research showing gun ownership was detrimental.

The right can continue to try to use emotion to sway people to vote against their interests, but that cannot go on for very long once people realise they have been had. Once that happens not only will people’s economic decisions change, but so will their voting decisions.

I’m feeling left out of the fun…

Sort of.

Mike the Gun Guy and Amanda Gailey are getting loads of attention from the NRA these days.  I no longer post at the MikeB blog as well, which means most of my activities are on social media: where I am very active.

And very effective.

So, fuck the Bollocks Circle Jerk–they don’t really test their bullshit and probably should change their name to that (Bollocks Circle Jerk) just for honesty’s sake.  Bollocks my dog probably has been in more courtrooms than he has.

I’ve been saying all along that the pro-gun side is based on science fiction (literally). “An armed society is a polite society” comes from Robert Heinlein’s “Beyond This Horizon”. If you are unaware, this is a novel where duels may easily occur when someone feels that they have been wronged or insulted that is attributed as a custom that keeps order and politeness.

We have seen where the other arguments are based on misquotations and fake history.  I’ve long wanted to rip apart the revisionist history of the Second Amendment, but I now know that someone else will do that for me using the material I have provided.

But, that was one of the purposes of this blog.

I won’t even bother with John Lott and the Bullshit serious overestimate of DGUs.  Where the fuck are the heroes with guns when the daily mass shootings happen?

People carrying weapons in public is not a right (Presser v. Illinois, 116 U.S. 252 (1886), Robertson v. Baldwin,165 U.S. 275 (1897) at 282 [1], and DC V Heller, 554 U.S. 570, (2008)[2]). Heller mentions Rawle, which says:

This right ought not, however, in any government, to be abused to the disturbance of the public peace.
An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.

The ultimate argument against open carry and guns everywhere are the Colorado Springs 911 calls relating to the mass shooting.Open carry comment at 2:49 of first call.

https://soundcloud.com/allison-sylte/sets/911-calls-for-colorado-springs-shooting-that-killed-3

Do you know how bizarre your gun free zone arguments sound when a 911 operator gives a mass shooter a pass because he had a right to walk around with a gun?

 The funny thing is you people don’t realise how stupid you sound with your silly arguments that are so obviously false: especially if one is willing to make the effort to fact check them.

Anyway,  It’s time that the debate began to be based on facts, not bullshit.  Congress needs to repeal the research ban on gun violence (come on, people, can’t you admit that your bullshit doesn’t survive scrutiny?). [3]

Additionally, it’s time the Supreme Court owned up that the Second Amendment has fallen victim to desuetude. It would be a truly conservative act to make that admission.  Here is Justice Robert Bork (The Tempting of America (1990)) on this issue:

“There is a problem with laws (which are not enforced). They are kept in the code books as precatory statements, affirmations of moral principle. It is quite arguable that this is an improper use of law, most particularly of criminal law, that statutes should not be on the books if no one intends to enforce them. It has been suggested that if anyone tried to enforce a law that had moldered in disuse for many years, the statute should be declared void by reason of desuetude or that the defendant should go free because the law had not provided fair warning.”

The Second Amendment was obsolete when it was written. Joseph Story pointed that out in 1833:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[4]

The problem is that the protection intended is no longer needed.

And trying to somehow “modernise” it has met with resounding failure.

This is a matter of public safety, not something that should be a subject for political machinations, which is the real perversion of the Second Amendment.

Anyway, I am being the resource I want to be and people I respect pay attention to what I say.  The ultimate thing is that the facts are getting out despite the attempts to silence us.

As for Mike the Gun Guy and Amanda Gailey, they couldn’t give a shit about your opinions either.  In fact, they have been laughing at you.

And I also don’t value your opinions.

I wish more people would ignore you.

footnotes:

[1]  “the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons”–Robertson v. Baldwin,165 U.S. 275 (1897) at 282
[2]

Heller:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

[3]  yeah. yeah.  I know you want to barrage me with your bullshit, but that’s all asked and answered.  Besides, I’m not out to persuade you of anything–I already know you are someone who doesn’t think. If you really want to have a response from me, go read this.  It’s generic, but it makes the point.

[4] Joseph Story, Commentaries on the Constitution 3:§1890 (1833). See also, Adam Smith, Wealth of Nations, Book V, Chapter I, Of the Expences of the Sovereign or Commonwealth, PART I Of the Expence of Defence particularly v.1.26-7.

The Physics Of Mass Killing

Excellent article on how firearms technology enables mass killing which takes it beyond the “cosmetic features” talk.  I strongly suggest that anyone involved in this issue read this article.

The Physics Of Mass Killing.

One trivial criticism the P228 comes with a 13 round magazine, but accepts larger.

The Last Hand Gun On Earth

Take an old movie serial, add a new voice over by the Firesign Theatre and you have some very funny stuff.  In this case, the gun loon’s nightmare: Big Brother’s henchmen come for the last handgun on earth.

“To think people used to sleep with these things under their pillows.”

Prof. Simon Chapman’s Over Our Dead Bodies: Port Arthur and the Fight for Gun Control – Australia’s last gun massacre is now a free E-book

Prof. Simon Chapman’s Over Our Dead Bodies: Port Arthur and the Fight for Gun Control – Australia’s last gun massacre is now a free E-book and available at the following link:

http://bit.ly/YZtHQ2

I strongly suggest that anyone who is involved in the US gun violence/gun control movement read this book.  Australia’s political climate surrounding this issue at the time of the Port Arthur Massacre was eerily similar to that of the US, yet the Australians were able to cut through the non-sense and enact serious and effective gun control laws.

This is a valuable lesson for people who want to see similar laws in the US.

This book is really about the workings of the media, the use of lobbying, and the skills of advocacy. So pick a day when you are tired of dealing with the aftermath of ignored public health issues and read this ripping yarn, arm yourself with the tools it offers, and be ready to go into battle.