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Thursday, April 19, 2007

Second Amendment Part 2

Emma made an excellent comment that clarifies my point on this subject. Blocks in quotes are from the comment.

"Under the Second Amendment, I can hypothetically, sling an AK over my shoulder, have no concealed weapons permit, and walk through downtown P-town...legally."

Actually - you can't. This is my point. Under any other Amendment I have the same rights no matter where in the 50 States I go. I have the same freedom of speech in Florida that I would have in Mississippi or Washington DC. So therefore, under the Second Amendment my rights from state to state SHOULD be the same. But they are not. In Florida, open carry is illegal. Of course if you are engaged in the act of hunting then you can open carry - but you all know what I mean. I can not strap an AK to my back and take a leisurely stroll in Downtown Miami. You may be able to do this in your state, but not in Florida. Likewise, open carry is outlawed in many other states. And some cities have successfully implemented gun restrictions that go beyond what State law says.

"It's the 'concealed' carry, not the 'carry' that states are concerned about and requiring permits. I'm for that. Although, someone popping Zoloft or a person institutionalized within a certain time frame can't pilot an aircraft but can walk into a gun store and purchase a gun, and carry concealed legally with a permit."

Again, it depends on the State. Like I said, some major cities have severely restricted gun ownership. And the States have not done anything about it. Nor have courts, except to uphold the city laws. There may even be States where there are no concealed permits and open carry is also banned. This would pretty much mean you can't carry. Guns have to be transported in the truck of a car, unloaded. You can own them, but the idea of a shootout on the street to defend yourself is illegal. And once again, courts have not overturned these laws.

For many years Washington DC banned all gun ownership. That was overturned, but I do not really understand the reasoning behind that. Just looking at the second half of the Second Amendment, it says "..... to keep and bear arms". Bear means carry. Have on hand. So if a State or a city says "no concealed weapons, no open carry" that is in effect "infringing" on my "right to bear arms". If it is OK to infringe on my "right to bear arms" then what is the big deal about my "right to keep arms"? How am I supposed to fight government tyranny if I can not patrol the streets of Washington DC with a fully automatic AK and a 100 round drum?

Anyhow the original point remains. Constitutional rights are uniform across the entire United States. No matter where in the USA you go, you have the same Constitutional rights. This is the whole point in the Amendments. My First Amendment rights do not change from State to State. Nor do my 3rd, 4th, 5th, 6th, 7th, 8th, or any other Constitutional Rights. And my 2nd Amendment "rights" do not vary either. They are uniform across the land. States have the right to form well organized militias no matter what State I go to.

The simple fact that gun laws are not uniform means that they are NOT protected by the Constitution. They are provisional rights, granted by State Law. My "right" to have guns is not protected by the Constitution, it is however protected by State Law. My "right" to bear arms is likewise limited. I have a permit for Florida. Some other States will accept the Florida permit as valid in their State - but some do not. States without concealed carry will not accept my permit. Other states with concealed carry laws may not accept my Florida permit.

But it is clear to me that the Constitution does not apply here. For if it did, what I can do in Alaska I could do in Washington DC. What I can do in Miami I could do in Los Angeles.

Anyway, it really does not matter too much. The majority of the population supports stricter gun control laws. So why are they not on the books? It has nothing to do with the Second Amendment - I have a feeling that if it came down to it the Supreme Court would side with gun control. They already have really - even if it is by inaction (refusing to hear cases).

The deal here is that those who support gun control do not really "vote the issue". The other side DOES vote the issue. Because of this, a politician who says "I will ban guns" stands little chance of getting elected. Those who agree with the statement will not get worked up into a frenzy about it. They will view other issues as more important. But the other side WILL get worked up into a frenzy.

In other words, you have little to gain by pushing for gun control. It is a risk, even if the majority supports it. Little progress in gun control will be made, no matter WHAT happens.

My personal belief is that it is too late. There are too many guns out there already. The NRA was incorporated in 1871. At that time handguns were still large revolvers, many of which were still black powder shooters (SLOW to load). Cartridge rifles and revolvers were around, but they cost more. Some very primitive and unreliable auto loaders were being developed, but they were not in common use. The common man was likely to have a "yellow boy" lever action rifle, or a Colt revolver. This was the time to restrict guns. By now these guns would be well over 100 years old, and in questionable shooting condition. The guns in good condition would be worth a lot of money (they are now).

But now these guns are considered primitive. There were no 30 round magazines. There were no auto loaders. Hell, I do not even think there were smokeless cartridges. I think in the 1870s the thing was black powder cartridges. Black powder is for the most part lower power than smokeless. It burns slower and can not build up the pressure that smokeless powder can. And there were not produced in the numbers that guns are produced in today.

So even if there is a total national gun ban, for the next 50 or so years it would be a problem. Until the guns on the black market were either all confiscated OR in such bad condition that they fail to function AND all the ammo and ammo supplies were used up (which is not possible, black powder is somewhat easy to make) violent criminals who were determined enough to do so could get a gun. It may have prevented the V. Tech shooting however, as the loner gunman probably did not have any connections. You have to have friends to have connections.

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Blogger Fuzz said...

If the 2nd amendment is a problem, we should just be honest about things and repeal it.

Blogger The Lazy Iguana said...

I do not think it is a "problem". It will never be repealed either. I do not think any Amendment is a "problem". None need to be repealed really. We already repealed the only stupid one and that was prohibition.

What we need to be honest about it the meaning of it, and just accept the fact that States can and DO make their own gun policies independent of what other states do.

The right for individuals to keep and bear arms is not in the Constitution, it is a provisional right granted by States. This is why gun laws in Florida may or may not be the same gun laws in Georgia. Even if the two states do share a border.

If it were in the Constitution, then gun laws in all 50 states would be identical.

Blogger Senor Caiman said...

The Lazy,

I can kill someone with my bare hands faster than with a gun and it's a lot more quiet. Guns are so impersonal.

Blogger Saur♥Kraut said...

Interesting. VERY thought-provoking. An excellent post. I'm going to mull this over before I comment further.

Anonymous Anonymous said...

I agree about killing with your bare hands, it brings it all home. otherwise, I can't add too much here, can you do a post on really good hair conditioners?

Blogger Econo-Girl said...

I think the question is "why do we need to have mass killing machines available to purchase in the U.S.?"

The international impact of the Virginia Tech massacre is almost as big as here. People all over the world are horrified both at the senselessness and the possibility of it. Most countries don't have things like this happen. There's something to look at there.

Blogger The Lazy Iguana said...

Caiman - Guns are impersonal. And I think they do make killing easier. You do not have to get up close.

Saur - the two part post is stuff I have come up with over time. I am not making a case for or against gun control here - I am simply trying to take an objective look at what the story is here. My conclusion is that gun rights are granted by States, not the Constitution. Can I own a gun? Yes. Why? Because Florida says I can. It is that simple.

Ba Doozie - I am going to switch gears for the weekend. This is really heavy stuff, and the V.Tech shootings are depressing.

Econo - welcome! I had a feeling you could change the flavor of the posts. I made an effort to avoid the "should guns be for sale in the USA" debate. I limited this strictly to the "right" to keep arms, and what this really means. I think I have put together an impressive case to support my assertion that the "right" to own AND carry firearms is granted by the State, not by the Constitution.

Should private gun ownership be allowed? In a perfect system I would say no. But this is far from a perfect system. At this point even if all legal guns were collected and recycled into manhole covers, the criminal element would still have them. Things would get more dangerous before they got better.

Blogger Cheesemeister said...

I believe that people should have to have a permit for each gun they own and there should be very harsh penalties for not having such a permit. This would mean that honest gun owners could still have their guns but it would make it a little harder for the gangbangers and lunatics. It isn't perfect but it seems like a workable compromise.
I'm not really that much in favor of guns on a personal level but wouldn't want to prevent responsible people who really want them from having them.

Blogger Emma Sometimes said...

The State and Federal laws conflicting are a problem. Legally, in Oregon, I now add :)....I can be arrested with an openly carried AK on my back, however not for the rifle. I can be sighted for disturbing the peace, someone else feeling threatened, etc... but not for simply owning the rifle.

Your point is well taken in that even I couldn't know every law in every state if I decided to do a cross country drive..this as someone who may perhaps have had their CWP and as someone who has owned guns, used them properly, trained my children in safety and further, gone to training myself.

I've recently (with the VA Tech gunman in the news now) read that San Francisco has serious anti-gun laws. On a side note, I wonder how their crime has changed since they established their laws.

Personally, I would prefer gun laws restricting by license, not banning ownership, at the state or county level. Someone living in Elmo, Kansas would have a different use of guns...say as opposed to New York, NY or a state/city far more populated and urban that produce higher crime rates. I've driven through counties in New Mexico, Arizona, Colorado, Oregon, Utah, Idaho, etc..where your nearest police department is over 30 to 40 minutes, even an hour or more away.

The Federal and State issue you bring up touches more than just guns. Minimum wage, for instance, or those who legalized marijuana for RX purposes in Oregon. In Oregon, the state can't prosecute 'legal' card carrying growers or users, but the Feds can bust Oregonians for what the state cannot. It's really stupid how each branch of government wants to be the strong arm.

Why don't people focus on the reasons why people like the VA Tech shooter, are so disturbed and even institutionalized and not getting the help they need and require for their personal and public safety. Guns are their tool because they are too easy to get, legally OR illegally, but when those disappear, what next? Knives? Bow and arrow? Or we can go middle eastern and just take out a market place by making a homemade bomb from a book you can order on all-American We need to concentrate on the problem, not the symptom. I don't like putting bandaids on gangrene.

Blogger The Lazy Iguana said...

CM - I have no problem with gun registration / permits. Really. The nuts who think this is unconstitutional are just plain wrong. But really there is a gun registration program in place now. Every gun I have has a serial number that can be traced. Making it illegal to have a gun with a serial number not registered to you is not a big deal.

Emma - federal law overrides State law. In just about every case. Just as State law overrides Local law. This is why the DEA continues to bust people even if the voters of a State pass a medical pot law. This is why State gun laws vary so much - there is no uniform Federal law.

You are absolutely correct about there being a huge difference in urban and rural environments. If you live in the woods of Alaska, you probably need a large caliber handgun, like the new Smith .500 or at least a Ruger .456 or a .44 Magnum. In the woods of Alaska you may be attacked by a grizzly bear. But in Manhattan there are no bears. This is why it is not realistic to ban all guns in all cases. Like I said, I was not trying to make a case for or against gun ownership, I was just presenting crap I have come up with. States seem to be in charge of granting gun ownership rights. Not the Constitution.

Blogger Michael said...

This post, and the previous one, and the comments for both, are fascinating.

The basic "problem" lies not in the ambiguity of the Second Amend, but rather in its inconsistency with other vital State functions, such as maintaining order and protecting public safety.

"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."

This is very clear to me, and I think you have hit the nail on the head: there is a definite reason to keep and bear arms. It would seem to me, reading this, that those persons granted this right are the members of the "well regulated" militia; historically speaking, that would apply to the State National Guard organizations. It would seem logical to include other military personnel, as well as law-enforcement officers in these provisions as well.

That said, the Amendment also says that "the right to keep and bear arms shall not be infringed." This is also quite clear. I don't think that permitting and licensing is the same as "infringement;" one needs a license to drive, but that right is otherwise not regulated.

It would seem to me that what is needed is a stricter standard for gun purchase/ownership, but, rather, a uniform standard: a set of laws at the Federal level defining what guns are legal, what the permit system should be, what the restrictions are.

Given American's antipathy toward broad-spectrum Federal laws (let's face it, we just don't like 'em, even though we have 'em), that isn't likely.

Now, here's something else:

I live in Israel. In Israel, the rate of gun ownership is extremely high; probably 60% of adults over the age of 22 (normal army exit) have a gun (usually a handgun), and about 35% of 18 to 21 yr olds are running around the country with loaded M-16s (during army service, of course, but they are required to keep the weapons with them at all times).

Excluding terrorist violence (terrorists won't obey any law), the rate of gun violence here is astoundingly low: it just doesn't happen. I think the fact that so many people are armed, and trained to use those arms, has something to do with that.

The difference between here and the States? Israel places heavy restrictions on gun ownership; it is a privilege, not a right. To earn the privilege, a citizen must serve in the army, show he can use the weapon, and demonstrate that he can store it properly. The license to carry must be frequently renewed. This difference puts helps to inculcate a sense of "gun responsibility" that is missing in the States.

Blogger The Lazy Iguana said...

Michael - this could very well be true. In Florida there is not even a range requirement to get a carry permit. The State of Nevada has a shooting range requirement that is similar to but not exactly the same as what a student at a law enforcement academy needs to graduate.

The Second Amendment needs to be looked at as a complete sentence. The trend is for this to not happen. You did it yourself. You separated the "well regulated militia" part with the "right to keep and bear arms" part. I do not think this is the right way to look at it.

Blogger Michael said...

I was not intending to split the sentence, but rather to show that US culture looks at the Amendment differently now, than it did 200 years ago.

Israel looks at the issue, I think, the way that the Founders did: Gun ownership as a privilige, with attendant responsibilities.

The question, and the "right" answer would solve America's gun issues, is how to get the responsibility back into gun ownership.

Range requirements are a start, as are licensing and mandatory ballistic records, but none of that is a solution.

Blogger The Lazy Iguana said...

Agreed. 100%. Uniform federal laws would really help here - but this will simply not happen.

Guns are a big political hot button here. The safe thing for a politician to do is to just avoid the issue.

I am big on responsibility. If you are not a responsible person - you should not have a gun. Or a car. Or a pet dog for that matter.

Blogger Michael said...

It looks like we are on the same page, Lazy.
When I lived in Michigan, the State legislature passed, and voters approved by referendum, a change to the language of the state's concealed carry permit law, from "may issue" to "shall issue."

What it meant was, that anyone who passed the background check had to be issued a concealed carry permit; there was no longer any discretion at the County level.

I went to my local police station, to ask about this, and was told that, yes, a person had to issued such a permit if he passed the check, even if his stated reason for wanting the gun was "I hate blacks."

Freaky, isn't it?


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